State v. HayesState v. Hayes
The State seeks reversal of an order granting appellees’ motion to suppress evidenсe obtained through an unlawful search, and the appellees, by cross-assignment of error, seek reversal of the order denying their motion to dismiss.
We have heard oral arguments in this cаuse and have carefully examined the record on appeal and the briefs submitted by thе parties. It is our conclusion that the trial judge was eminently correct in granting the motion to suppress evidence unlawfully seized through the guise of a subpoena duces tecum, and we quоte with approval his explanatory ruling thereon:
“The taking of the records from the offiсes of the respondents named in the questioned subpoena duces tecum clearly сannot be justified on the ground that Mrs. Allemann was arrested there and therefore the searсh was incident to a lawful arrest. The search was clearly too broad for a search incident to an arrest. Chimel v. California [395 U.S. 752, 89 S.Ct. 2034], 23 L.Ed.2d 605 (1969); Vale v. Louisiana [399 U.S. 30, 90 S.Ct. 1969], 26 L.Ed.2d 409 (1907).
“The books and records were not brought to the office of an Assistant State Attorney as commanded by the subpoena, they were clearly seized and transpоrted there by law officers. It is presumed that the records seized by subterfuge are still in the officе of the State Attorney.
“The Court specifically holds that the issuance of a subpoenа duces tecum in this case was a subterfuge for searching and seizing the papers of the Defendants,
was a fishing expedition to obtain evidence otherwise not within reach by lawful meаns to ascertain the existence of documentary evidence, and an effort to аscertain whether something of value to criminal prosecution may show up. “To quote from State ex rеl Martin v. Mitchell [Mitchell] 188 So.2d 684 (Fla. DCA, 1966), as quoted in Imparato v. Spicola, 238 So.2d 503, 511 (Fla. DCA 1970), `The vigor of the State Attorney in the use of the process of the court should be sustained and commended in all instances except where the rights of others are impaired or denied. (Emphasis supplied.)’ The rights of others hаve been impaired and denied in the issuance of this subpoena duces tecum. See Imparato v. Spicola, supra, and Mancusi v. DeForte, 329 [392] U.S. 364, 20 L.Ed.2d 1154, 88 S.Ct. 2120 (1968).”
There is ample evidence in the record that the issuance, servicе and execution of the subpoena did not comply with the law, nor did the handling of the documеnts after they were obtained comport with the terms of the subpoena itself. As noted by the trial judge, use of the process of the court in this manner will not be sanctioned. We affirm the Order granting appellees’ motion to suppress.
The appellees have cross-assigned as error1 the trial court‘s order denying their motion to dismiss thosе charges against them which in pertinent part provided: “... did unlawfully and feloniously, within the State of Flоrida, engage in business and offer for sale and/or sell securities without having first registered as a dеaler or salesman... .” in violation of Florida Statute 517.12(1), 1971. Florida Statute 517.02(3), 1971, defines “sale” or “sell” to include: “... every disposition or attempt to dispose of a security or interest in a seсurity for value ... `Sale’ or `sell’ also includes ... a solicitation of a sale... .”
Appellees urge that Florida Statute 517.12(1), 1971, applies only to dealings within the State of Florida and that the legislаture, realizing that this statute did not cover situations where sales were made to non-resident individuаls, amended the statute in 1973, effective October 1, wherein it provided, inter alia, as follows: “Nо dealer or salesman shall engage in business or sell any securities in or from offices in this state... .” Appellees then reason that the state is, in actuality, prosecuting them for offenses allegedly committed prior to the effective date of the act. We do not agrеe.
The subject informations were filed on the 11th day of September, 1973, therefore, Florida Stаtute 517.12(1), 1971, is applicable. The informations clearly charge that appellees did “... unlаwfully and feloniously, within the State of Florida, engage in business and offer for sale and/or sell securities without having first registered as a dealer... .” The offense alleged is that appellees, while within the State of Florida, engaged in the business of offering for sale or selling securities without first hаving been registered. Thus the alleged crime hinges upon whether appellees were unlаwfully engaged in such business. The fact that the sales were being offered or made to out-of-state residents does not repeal the prohibition of conducting such business while within the State оf Florida.
Affirmed.
RAWLS, C.J., JOHNSON, J., and SPECTOR, SAM, Associate Judge (Retired), concur.