JAMES AALDERINK AND KENNETH S. BLOW, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed the convictions of two defendants charged with marijuana possession where police officers testified about the contents of a confidential informant's warrantless tape-recorded conversation without establishing the informant's prior consent to the taping through competent testimony from the informant himself, violating statutory and constitutional requirements.
No. The court reversed, holding that under Florida Statute § 934.03(2)(c) and the precedent in Tollett v. State, competent and relevant testimony from a party to the communication subject to cross-examination must be presented to establish the requisite consent before any evidence derived from the warrantless interception may be admitted, whether the recording itself or testimony about its contents.
[1] A warrantless interception of an oral communication is permissible under statute if one party consents and the purpose is to obtain evidence of a criminal act.
[2] The requisite consent for a warrantless interception of an oral communication must be established by the testimony of a party to the communication, subject to cross-exami…
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Join FLexlaw to unlock all legal intelligence“To allow police to testify as to the contents of a warrantless interception or an oral communication without first providing competent evidence of consent would allow them to accomplish indirectly what they could not do directly.”
Establishes the core legal principle that police testimony about warrantless interceptions without proven consent violates statutory requirements
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Join FLexlaw to unlock all legal intelligenceAppellants Aalderink and Blow were charged with marijuana possession. During a drug investigation, police wired a confidential informant to enter the …
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OTT, Judge.
Appellants Aalderink and Blow, defendants in the trial court, were charged with possession of greater than five grams of marijuana. Appellant Blow was charged additionally with possession of paraphernalia. Both appellants filed motions to suppress the evidence. The motions were granted in part, and denied in part. Thereafter, Blow and Aalderink entered pleas of nolo contendere, specifically reserving their right to appeal that part of their motions to suppress which was denied.
In the process of a drug investigation and because of indications of possible involvement of appellants, the investigating officers decided to wire a confidential informant for transmission and send him into the appellants’ residence posing as a potential buyer. If the informant actually observed marijuana or other illegal drug activity in the residence he was instructed to utter a prearranged “code word.” Police officers were stationed nearby listening and taping the conversation. Upon hearing the “code word” the officers entered the residence and arrested Aalderink and Blow for possession of marijuana.
Quite obviously there was insufficient probable cause to justify a warrant either for a search of the residence or for communication interception. At the hearing on the motion to suppress the confidential informant did not testify. Appellants contend that failure of the informant to testify that he gave his consent to the taping of the conversation was error, citing Tollett v. State, 272 So. 2d 490 (Fla.1973). We agree and reverse.
Section 934.03(2)(c), Florida Statutes (1975), permits a warrantless interception of an oral communication where one of the parties to the communication has given pri-or consent to the interception and the purpose of the interception is to obtain evidence of a criminal act. The court in Tollett v. State, supra, insisted that the requisite consent must be established by competent and relevant testimony of a party to the communication, subject to cross-examination by the defendant, as a condition precedent to the introduction of the recording into evidence.
In the instant case the recording itself was not introduced into evidence. However, a police officer not a party to the communication or otherwise privy thereto was allowed to testify as to its contents and the requisite consent of one of the parties. That this testimony was critical is apparent since the officer conceded, and we feel accurately, that no probable cause existed until the moment he heard the “code word.” To allow police to testify as to the contents of a warrantless interception or an oral communication without first providing competent evidence of consent would allow them to accomplish indirectly what they could not do directly. This type of tactic was condemned long ago in Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Accordingly, it was error to allow the police officer to testify regarding the taped conversation.
The judgments and sentences are reversed and the cause remanded for further proceeding consistent herewith.
HOBSON, Acting C. J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Leonard, 376 So. 2d 427 (Fla. 3d DCA 1979)…ion where one of the parties to the communication has given his prior consent to the interception and the purpose of the interception is to obtain evidence of a criminal act. Walker v. State, 222 So. 2d 760 (Fla. 3d DCA 1969) and Aalderink v. State, 353 So. 2d 172, 173 (Fla. 2d DCA 1978). This consent must be authenticated through the testimony of the consenting party, not the sole testimony of an officer that the party gave his consent in that “[s]uch direct testimony easily falls in the class of those excep…
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State v. Aalderink, 373 So. 2d 670 (Fla. 1979)…PER CURIAM. On the authority of Zuppardi v. State, 367 So. 2d 601 (Fla.1978), the decision of the District Court of Appeal, Second District, 353 So. 2d 172, is hereby quashed. It is so ordered. ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.…
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Lopez v. State, 372 So. 2d 1136 (Fla. 2d DCA 1979)…pinion in Tollett holds that consent to intercept oral communications cannot be established by the testimony of police officers alone, but must be corroborated by the testimony of one of the parties to the communication. See also Aalderink v. State, 353 So. 2d 172 (Fla. 2d DCA 1978). In neither Tollett nor Aalderink did there exist a written consent form; in each case, [*1138] police testified as to the consent of the informant who was a party to the communication. Thus it might appear that a written consent…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nardone v. United States, 308 U.S. 338 (U.S. 1939)
- Tollett v. State, 272 So. 2d 490 (Fla. 1973)