RODNEY EUGENE SCHEIDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE (TWO CASES); DAVID RAND PAGAN, APPELLANT, V. STATE OF FLORIDA, APPELLEE; ROBERT GREGORY SCHEIDER, APPELLANT, V. STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1980-09-25
Nos. NN-153, NN-154, NN-226 and NN-227
MILLS, C. J., and LARRY G. SMITH, J., concur.
389 So. 2d 251 Florida District Court of Appeal, First District (1980) Caution
Cited by 4 cases

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Synopsis

Three defendants convicted after entering pleas of nolo contendere for drug possession appealed the trial court's denial of their motion to suppress evidence obtained through a wiretap. The appellate court affirmed, holding that the law enforcement application for wiretap authorization satisfied statutory requirements by explaining why conventional investigative techniques would be insufficient.


Holding

The trial court did not err in denying the motion to suppress. The wiretap application satisfied Florida Statute § 934.09(1)(c) requirements by adequately explaining why conventional investigative techniques would be unproductive and why other methods would be unsuccessful. Additionally, the defendants had standing to challenge the wiretap because they were parties to intercepted telephone conversations, regardless of whether they had a proprietary interest in the tapped phone.


Headnotes

[1] A wiretap application must demonstrate that other investigative procedures have been tried and failed or are unlikely to succeed or are too dangerous.

[2] The purpose of requiring other investigative techniques before authorizing electronic surveillance is to inform the judge of the difficulties of conventional methods, not…

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Key Quotes

“§ 934.09(l)(c), Fla.Stat. (1977) requires that any application for authorization to intercept wire or oral communications must contain: . a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”

Establishes the statutory standard for wiretap applications in Florida

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Facts & Procedural History

Defendants were arrested pursuant to a search warrant based on information obtained through a wiretap. The wiretap application discussed limited inves…

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

Defendants below appeal judgments and sentences, after pleas of nolo contendere, for possession of controlled substances.

We affirm the trial court.

Defendants were arrested pursuant to a search warrant which in turn grounded its probably cause on information gained from a wiretap. They contend the trial court erred in denying their motion to suppress the fruits of the wiretap because the police failed to use sufficient “other investigative techniques” before seeking court authorization for the interception.

§ 934.09(l)(c), Fla.Stat. (1977) requires that any application for authorization to intercept wire or oral communications must contain:

. a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

The application for authority to intercept in this case fulfills the statutory requirements.

First, it discusses the limited investigative procedures which were used, and explains why they were insufficient. It shows that continuance of the surveillance which had been briefly attempted would be unavailing, states that the conspirators are alerted to the law enforcement effort against them, and declares that further attempts to contact known associates of the conspirators would only jeopardize the overall situation.

Second, the application explains why other methods would likely be unsuccessful. It states that the person whose phone was sought to be tapped was in the middle of a large drug conspiracy; that normal investigative procedures would continue to be unproductive because of the clandestine and widespread nature of the criminal conspiracy; and that because of the tightness of the group, infiltration would not work.

The application tells why issuing subpoenas or granting immunity would not only have been useless but would more likely have been detrimental, and concludes that electronic surveillance through wire interception is the only remaining effective alternative.

It is evident this wiretap authorization was not routinely requested as an initial step in a criminal proceeding. The application shows why traditional techniques would not suffice to expose the crime. United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974).

The purpose of the Federal Statute [18 U.S.C. § 2518(l)(c)], which is substantially similar to our Florida Statute, § 934.-09(l)(c), is not to require that electronic surveillance be foreclosed until every other ' imaginable method of investigation has been unsuccessfully attempted, “but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques.” United States v. Pacheco, 489 F. 2d 554, 565 (5th Cir. 1974); United States v. Alfonzo, 552 F. 2d 605, 611 (5th Cir. 1977); Cuba v. State, 362 So. 2d 29, 32 (Fla. 3d DCA 1978), cert. denied 378 So. 2d 344 (Fla.1979).

The State’s application was no mere “boilerplate recitation of the difficulties of gathering usable evidence,” as defendants argue. Although it is clear that the facts set out in the previous investigation (upon which an earlier wiretap order was based) form a part of the application here, this does not invalidate the second affidavit. The second affidavit contains additional facts regarding the conspiracy, as well as a description of the subsequent attempts to investigate, and an explanation of why other investigative techniques would not work here. Those statements are sufficient. See Cuba v. State, supra.

Appellee State contends the appellants lack standing to contest the wiretap order since appellants have failed to show a property or possessory interest in the tapped phone. We find that appellants have standing. Under Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) and State v. News-Press Publishing Co., 338 So. 2d 1313 (Fla. 2d DCA 1976), an individual may attack the validity of any wiretap ordered, if it intercepts telephone conversations to which he is a party, regardless of proprietary interest.

The trial court did not err in denying the motion to suppress.

AFFIRMED.

MILLS, C. J., and LARRY G. SMITH, J., concur.


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Citator

Cited By

  • State v. Eber, 502 So. 2d 32 (Fla. 3d DCA 1987)
    …pursuant to a search warrant, which, in turn, grounded its probable cause on information gained from the [unlawful] wiretap, [he] had standing to contest the wiretap order.” The case relied upon by the trial court for its ruling, Scheider v. State, 389 So. 2d 251 (Fla. 1st DCA), rev. denied, 397 So. 2d 779 (Fla.1981), which involved defendants whose telephone conversations were intercepted during the tap in question, simply does not support the trial court’s decision in this regard. Affirmed in part; rever…
  • …even techniques also listed in the application that had been tried without success or were likely to fail, it is evident that this wiretap authorization was not routinely requested as an initial step in the criminal investigation. Scheider v. State, 389 So. 2d 251, 252 (Fla. 1st DCA 1980). Appellants contend that use of moving surveillance and other untried methods would have precluded the need for a wiretap if they had indeed been attempted. For us to so conclude would amount to a judgment call on the facts,…

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