THE STATE OF FLORIDA, APPELLANT,
v.
STANLEY H. STEINBRECHER, APPELLEE
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Florida appeals from a suppression order excluding tape recordings of conversations between a confidential informant and a police sergeant obtained with the informant's consent but without an intercept warrant. The court reverses, holding that under Franco v. State, no warrant is required when conversations occur outside the home and are recorded by the consenting party.
The court reversed the suppression order, holding that no intercept warrant is required under these circumstances. The case is controlled by Franco v. State, which held that a warrant is not required when recording conversations with consent outside the home.
[1] Tape recordings of conversations obtained with the consent of one party and without an intercept warrant are admissible when the conversations do not occur in the defenda…
[2] A warrant is not required to intercept conversations when one party to the conversation consents to the interception.
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Join FLexlaw to unlock all legal intelligence“a warrant was not required in a situation identical to the one involved here”
Establishing that Franco v. State controls the case and renders the suppression order incorrect
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Join FLexlaw to unlock all legal intelligenceLaw enforcement obtained consent from Angelo Jordan on December 6, 1978 to tape record his phone and in-person conversations with defendant Steinbrech…
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SCHWARTZ, Judge.
The state appeals from an order granting the defendant’s motion to suppress tape recordings of his conversations, which had been secured without an intercept warrant but in accordance with Sec. 934.03(2)(c), Fla. Stat. (1977). The order itself accurately summarizes the controlling facts:
1.On December 6, 1978, law enforcement officers of the Dade County Public Safety Department acquired the consent of one Angelo Jordan to tape record phone calls and in-person conversations between Jordan and the defendant, Stanley H. Steinbrecher, a sergeant with the City of Miami Beach Police Department. The purpose of these records was to gain evidence of alleged criminal acts, to— wit: Bribery and Unlawful Compensation.
2. Phone conversations and person-to-person conversations between Jordan and the defendant were intercepted, after such consent, between December 6, 1978, and January 23, 1979, in an effort to detect said criminal acts.
3. No Intercept Warrant was obtained prior to the interception of the conversations.
4. The State has conceded that there was sufficient time to obtain an Intercept Warrant.
5. None of the intercepted conversations occurred in the residence of the defendant or touched the said residence.
The trial judge based his ruling upon Sarmiento v. State, 371 So. 2d 1047 (Fla.3d DCA 1979), cert. granted and pending, Fla. Sup.Ct., Case no. 57,173, in which this court held that, without a warrant, an eavesdropping officer could not testify to the contents of a conversation which occurred in the defendant’s home. After the entry of the order below, however, we held in Franco v. State, 376 So. 2d 1168 (Fla.3d DCA 1979), cert. denied, 386 So. 2d 636 (Fla.1980), that a warrant was not required in a situation identical to the one involved here. This case is controlled by Franco and is decisively unlike Sarmiento in at least two respects: (a) it concerns the admissibility of the tapes themselves, rather than only the testimony of a person who overhead the conversation, see, Hajdu v. State, 189 So. 2d 230, 233-34 (Fla.3d DCA 1966), cert. denied, 196 So. 2d 923 (Fla.1967); and (b) the conversations in question did not take place in the privacy of the home. For these reasons, it is not necessary to determine whether Sarmiento has continuing viability as applied to its own facts, notwithstanding the quite different constitutional reasoning adopted in Franco.
See, contra, State v. Scott, 385 So. 2d 1044 (Fla. 1st DCA 1980). On the authority, therefore, of Franco v. State, supra, the order under review is
Reversed.
. See also, Jacobs v. State, 389 So. 2d 1054 (Fla.3d DCA 1980); State v. Shaktman, 389 So. 2d 1045 (Fla.3d DCA 1980); Trinidad v. State, 388 So. 2d 1063 (Fla.3d DCA 1980).
HUBBART, Judge
(dissenting).
I must respectfully dissent. I would affirm the order under review in all respects. In my view, the subject tape recordings were properly suppressed by the trial court because they represent the fruit of an unreasonable interception of a private conversation involving the defendant and the police in violation of the defendant’s rights guaranteed by Article I, Section 12 of the Florida Constitution. No intercept warrant was ever obtained for the subject electronic eavesdropping although concededly it was practicable to have obtained one. As such, the subject tape recordings were inadmissible in evidence and the state agent’s “consent” to the subject electronic eavesdropping cannot change this result. I have more fully developed the authorities and reasoning to support this view in my dissenting opinions in State v. Shaktman, 389 So. 2d 1045 (Fla.3d DCA 1980) (opinion filed this date), and Franco v. State, 376 So. 2d 1168, 1170-1172 (Fla.3d DCA 1979), upon which I rely for my dissent herein.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bart Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980)
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State v. Shaktman, 389 So. 2d 1045 (Fla. 3d DCA 1980)…ntercept warrant where there was ample time to do so was dealt-a death blow by Franco. The present case is controlled by Franco, and upon its authority we reverse. See also Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980); State v. Steinbrecher, 389 So. 2d 1043 (Fla. 3d DCA 1980); State v. Scott, supra. Reversed. . These issues are relevant only in the absence of consent. Section 934.03(2)(c), Florida Statutes (Supplement 1978), provides: “It is lawful under this chapter for a law enforcement officer ...…
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Silber v. State, 398 So. 2d 918 (Fla. 3d DCA 1981)…A 1966); United States v. Faulkner, 538 F. 2d 724 (6th Cir. 1976); Gomien v. State, 172 So. 2d 511 (Fla. 3d DCA 1965); Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980); State v. Shaktman, 389 So. 2d 1045 (Fla. 3d DCA 1980); State v. Steinbrecher, 389 So. 2d 1043 (Fla. 3d DCA 1980); Trinidad v. State, 388 So. 2d 1063 (Fla. 3d DCA 1980); Franco v. State, 376 So. 2d 1168 (Fla. 3d DCA 1979); Zamot v. State, 375 So. 2d 881 (Fla. 3d DCA 1979).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sarmiento v. State, 371 So. 2d 1047 (Fla. 3d DCA 1979)
- Bart Jacobs v. State, 389 So. 2d 1054 (Fla. 3d DCA 1980)
- State v. Shaktman, 389 So. 2d 1045 (Fla. 3d DCA 1980)
- Hajdu v. State, 189 So. 2d 230 (Fla. 3d DCA 1966)
- Kellogg v. Found, 376 So. 2d 1168 (Fla. 5th DCA 1979)
- Franco v. State, 376 So. 2d 1168 (Fla. 3d DCA 1979)
- State v. Scott, 385 So. 2d 1044 (Fla. 1st DCA 1980)
- Trinidad v. State, 388 So. 2d 1063 (Fla. 3d DCA 1980)
- Burns v. Washburn, 196 So. 2d 923 (Fla. 1967)
- Horvath v. Five Points Nat'l Bank of Miami, 196 So. 2d 923 (Fla. 1967)