Jackson v. State

636 So. 2d 1372, 1994 WL 180402
District Court of Appeal of Florida·Decided May 13, 1994·No. 92-01381·Published·Cited by 3 cases

Opinion

636 So.2d 1372 (1994)

Roberta JACKSON, Appellant,
v.
STATE of Florida, Appellee.

No. 92-01381.

District Court of Appeal of Florida, Second District.

May 13, 1994.

James Marion Moorman, Public Defender, and Robert F. Moeller, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

LAZZARA, Judge.

Roberta Jackson appeals her judgment and sentence for trafficking in cocaine. She contends that the trial court erred in denying her amended motion to suppress. We agree and reverse.

In June of 1991, a detective with the Sarasota police department submitted a sworn ex parte application to a circuit judge for an order authorizing the duplication of Jackson's telephone pager. The judge granted the application and issued an order authorizing law enforcement officers "to acquire a duplicate pager and intercept telephone numbers" called into Jackson's pager for a period of thirty days. He found that "[t]he information *1373 likely to be obtained is relevant to an ongoing criminal investigation" involving Jackson and her violations of Florida's drug laws. He then directed GTE Communications Carrier to cooperate with law enforcement in implementing the order. In July of 1991, another detective repeated the same process before a different circuit judge and obtained an identical order.

Armed with this duplicate display pager, detectives began monitoring numbers called into Jackson's display pager. They determined that the numbers in sequence reflected a two or three digit code that identified the caller, the telephone number of the caller, and a two or three digit code that indicated the amount of drugs the caller wanted to purchase from Jackson. They also corroborated this information with visual surveillance of Jackson in her 1990 Nissan automobile. For example, on one occasion, after intercepting a series of digitized transmissions on their duplicate display pager while monitoring Jackson's display pager, the detectives followed Jackson to a restaurant where they observed her participate in what they characterized as a narcotics transaction.

In late August of 1991, a detective used the information derived from the duplicate display pager in an affidavit to obtain a search warrant for Jackson's automobile. During the course of the search, detectives discovered a quantity of cocaine and, as a result, Jackson was arrested and later informed against for trafficking in cocaine pursuant to section 893.135(1)(b)1., Florida Statutes (1991). After the trial court denied the amended motion to suppress, Jackson entered a plea of nolo contendere, specifically reserving her right to appeal.

Jackson alleges that the search warrant was based primarily on communications illegally intercepted through the duplicate display pager and that without this tainted information the facts relied on to establish probable cause were otherwise stale. She argues that before a judge can authorize law enforcement to acquire and use such a device to intercept numbers called into the original display pager, the specific requirements of sections 934.07 and 934.09, Florida Statutes (1991), must be followed. Thus, she contends, since there was noncompliance with these statutory mandates, the trial court should have excluded evidence derived from the duplicate display pager under section 934.06, Florida Statutes (1991), when it was considering the merits of her motion.

The state's position is that a duplicate display pager is no more intrusive than a pen register and is not governed by these statutory requirements.[1] Instead, it argues a judge need only adhere to the procedure outlined in sections 934.32 and 934.33, Florida Statutes (1991), to authorize law enforcement to use such a device. However, the state candidly concedes that if a duplicate display pager is covered by the requirements of sections 934.07 and 934.09, those requirements were not met in this case. The record supports this concession.

Section 934.07 strictly defines a limited category of individuals who can authorize an application before a judge for a warrant intercepting wire, oral, or electronic communications. The purpose of the statute is to place responsibility in a specifically enumerated "narrow class of officials to insure that such decisions come from a centralized, politically responsive source." State v. Daniels, 389 So.2d 631, 636 (Fla. 1980). A law enforcement officer is not included in this group.

Section 934.09 sets out the stringent procedures that must be followed before a judge can issue a wiretap warrant. These procedures require the submission of a detailed application, a finding of probable cause, and a determination that normal investigative techniques have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. The statute also contains requirements governing the duration of the order and any extensions, the recording and minimization of intercepted communications, periodic reports to the judge, and notice to affected persons. See *1374 Rodriguez v. State, 297 So.2d 15 (Fla. 1974); Miller v. State, 619 So.2d 9 (Fla. 4th DCA 1993).

These statutes are exceptions to the federal and state constitutional rights to privacy and must be strictly construed. Copeland v. State, 435 So.2d 842 (Fla. 2d DCA 1983). To that end, section 934.06 specifically prohibits the use of any evidence obtained or derived from an interception of communications that violates these statutes. This statutory exclusion is absolute and without regard to the good faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). State v. Garcia, 547 So.2d 628 (Fla. 1989).

In contrast, the requirements for obtaining an order for the installation of a pen register under sections 934.32 and 934.33 are considerably less stringent.[2] Unlike a wiretap warrant, a law enforcement officer has the authority to apply for such an order. § 934.32(1)(b). The application need only contain the identity of the applicant and the law enforcement agency conducting the investigation and a certification "that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by the investigating agency." § 934.32(2). Based on this certification, a judge is authorized to issue the order without requiring any greater specificity. § 934.33(1) and (5).

With this background, the issue we confront is whether information intercepted by a duplicate display pager constitutes the interception of a protected electronic communication under section 934.02(12), Florida Statutes (1991), such that the state must first seek authorization pursuant to sections 934.07 and 934.09 before it can lawfully obtain and use such a device. This issue is one of first impression in this state and requires us to examine the interplay between federal and Florida law.

We have held that Congress, through its legislation, has "preempted the field of the interception of wire communications under its power to regulate interstate communications." State v. McGillicuddy, 342 So.2d 567, 568 (Fla. 2d DCA 1977). We have noted that although states are permitted to regulate wiretap warrants, their standards must be "at least as strict as those set forth in the federal act." 342 So.2d at 568. Thus, as in McGillicuddy, we look to the applicable federal law.

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Jackson v. State, 636 So. 2d 1372, 1994 WL 180402 (Fla. Ct. App. 1994).

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