Opinion
No. 98-692.
Opinion filed May 28, 1999.
Appeal from the Circuit Court for Brevard County, Charles M. Holcomb, Judge.
Robert A. Butterworth, Attorney General, Tallahassee, and Roberta J. Tylke, Assistant Attorney General, Daytona Beach, for Appellant.
Gregory W. Eisenmenger and Robert R. Berry of Eisenmenger Berry, P.A., Melbourne, for Appellee.
This is an appeal from an order granting a motion to suppress. The question is whether a deputy sheriff had authority to intercept a telephone conversation when only one of the parties to the conversation gave consent.
The pertinent statute is section 934.03(2)(c) and it provides that it is lawful for a law enforcement official to intercept a telephone conversation if only one of the parties gives consent if "the purpose of such interception is to obtain evidence of a criminal act." Should the interception not be for the purpose of obtaining evidence of a criminal act then consent of both parties must be obtained or the interception is illegal and any "fruits of the search" must be suppressed from evidence in a criminal trial.
Appellee is the mother of a child who told the deputy that she was the victim of a crime. The deputy began investigating the report and before the investigation was complete, received a message from the child saying she lied about the reported crime and recanted the details. Not believing the recantation the deputy sought to locate the child to reinterview her and put the investigation back on track. The deputy's efforts to find her were fruitless so she (the deputy) enlisted the help of a friend of the child in order to locate her and complete the investigation. When the friend called appellee the deputy taped the conversation, unbeknownst to appellee, and the taped conversation formed the basis for a criminal prosecution because appellee allegedly failed to protect her daughter, and tampered with a witness, the friend, by telling him to lie to the police. The friend knew of the child abuse and had told the appellee about it.
The trial judge ruled that because the deputy was not seeking to obtain evidence of a crime, but was merely trying to locate the child, that the taped conversation is not admissible against appellee in her trial for witness tampering and failure to report child abuse. We disagree with the interpretation and conclusion of the judge. In our view, the purpose of the call was to obtain the critical evidence needed in the child abuse case, the testimony of the child. Without her testimony the crime would go unpunished and without talking to her it would be impossible to get her to testify. The purpose of the call was to obtain the evidence of the child abuse so the interception of the communication was within the statutory allowance mentioned above.
We quash the order suppressing the evidence and remand for trial.
ORDER QUASHED; REMANDED.
HARRIS, J., concurs and concurs specially with opinion.
SHARP, W., J., dissents, with opinion.
I concur with Judge Dauksch because I find section 934.03(2)(c), Florida Statutes, neither complicated nor ambiguous:
It is lawful under §§ 934.03- 934.09 for an investigative or law enforcement officer or a person acting under the direction of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act. (emphasis added).
The statute simply does not require that the evidence being sought must relate to the criminality of the unconsenting communicant. Here, the witness was assisting law enforcement in the investigation of alleged sexual acts committed on a thirteen year old girl who had suddenly become unavailable. Law enforcement believed that the mother of the young girl (the objecting communicant) might know the girl's whereabouts and might reveal this information to the cooperating witness but not to law enforcement. This appears to be a reasonable exception to the prohibitions contained in section 943.03(1), and one the legislature intended, and I concur.
I respectfully dissent. I would interpret the language in section 934.03(2)(c), which makes legal and usable in court wiretap or taping of a telephone conversation when one of the parties has not consented to the taping, strictly rather than liberally. The statute provides that such a conversation may be taped lawfully, if "the purpose of such interception is to obtain evidence of a criminal act." Since the statute is an exception to the constitutionally protected right to privacy, it should be construed narrowly rather than broadly. See In re Grand Jury Investigation, 287 So.2d 43 (Fla 1973); Copeland v. State, 435 So.2d 842 (Fla 2d DCA 1983).
U.S. Const. Amend. IV; § 12, Art. I, Fla Const.
The telephone call in this case was made at the instigation of a police officer, Deputy Reynolds, who was investigating a sexual battery case involving Sobel's minor daughter, Arlene. Reynolds had interviewed Arlene and Sobel, and Arlene told her Arlene's boyfriend, who had been living in their home, had been engaging in sexual relations with her. The next day Arlene left a message on Reynolds' answering machine, claiming what she told her about her boyfriend was a lie.
Reynolds did not believe Arlene's recanting of her earlier interview. In order to get Arlene to reaffirm her prior allegations, Reynolds asked one of Arlene's friends, Eric, to participate in a taped telephone conversation with Arlene. Eric agreed. Had such a telephone conversation taken place under those circumstances, I think the statutory exception of section 934.03(2)(c) would be applicable. The purpose of the call would have been to obtain evidence of the crime Deputy Reynolds was then investigating, and Eric (one party to the call) agreed to the taping.
However, that planned telephone call did not take place because Arlene was unavailable to take the call. Deputy Reynolds then asked Eric to participate in a taped telephone call to Sobel, the express purpose being to discover where Arlene was so that Eric could talk with Arlene. Sobel was not under criminal investigation, and Deputy Reynolds admitted she had no idea Sobel might have committed a crime. During the conversation with Eric, Sobel made statements which were the basis for criminal charges later filed against her — tampering with a witness (advising Eric not to tell the police the truth) and failing to protect her daughter from abuse. But Deputy Reynolds freely admitted obtaining evidence of those crimes was not the purpose of the taped telephone call to Sobel.
The defense counsel argued, and the trial court ruled, that since the admitted "purpose "of the taped conversation was to discover the whereabouts of Arlene, and not to gather evidence about a crime Sobel had committed or even one that had been committed against Arlene, the statutory exception should not have applied to make the taping legal. If "purpose," as used by section 934.03(2)(c) is broadly interpreted, so as to encompass this conversation with Sobel, I fear the statutory exception will eventually swallow the constitutional protection. Any taped conversation that is tangently related to a supposed criminal perpetrator or victim, made for whatever purpose to a non-consenting party, which produces evidence of a crime, even though not the one under investigation, is lawful.
Pursuant to this interpretation, it will be difficult to limit the statutory exception, in future cases. In my view, this jeopardizes Florida's Constitutional Right of Privacy, which is supposed to provide "a very high degree of protection for private communications from governmental intrusions." Mozo v. State, 632 So.2d 623 (Fla. 4th DCA 1994), approved, 644 So.2d 1115 (Fla. 1995). Any exception to this constitutional right ought to be narrowly construed. State v. Rivers, 660 So.2d 1360, 1361 (Fla. 1955), Mozo; Copeland.