State v. Aurilio

366 So. 2d 71
CourtDistrict Court of Appeal of Florida
DecidedDecember 20, 1978
Docket77-36
StatusPublished
Cited by11 cases

This text of 366 So. 2d 71 (State v. Aurilio) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Aurilio, 366 So. 2d 71 (Fla. Ct. App. 1978).

Opinion

366 So.2d 71 (1978)

STATE of Florida, Appellant,
v.
Carl AURILIO, Eleanore Cinquina, Alfred Campagnuolo, and Joseph Di Pietro, Appellees.

No. 77-36.

District Court of Appeal of Florida, Fourth District.

December 20, 1978.
Rehearing Denied January 31, 1979.

*73 Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, Larry S. Weaver and Marc E. Kirk, Asst. Public Defenders, West Palm Beach, for appellee Joseph Di Pietro.

Robert S. McCain of McCain & Saccocio, Fort Lauderdale, for appellee Alfred Campagnuolo.

Robert L. Saylor of Saylor & Ingalsbe, North Palm Beach, for appellee Eleanore Cinquina.

ANSTEAD, Judge.

This is an appeal challenging an order suppressing evidence obtained from wiretaps on various telephones used by the appellees.

By successive applications, authorizations to intercept the communications of the appellees, starting with Joseph Di Pietro, were secured over a period running from May 12, 1975 to June 25, 1975. Subsequently, appellees were charged in several counts with bookmaking and maintaining a gambling house. The appellees then filed motions to suppress which were granted in an order that found:

1. The electronic surveillance placed on the telephone line of Joseph Di Pietro was maintained beyond the time that the authorized objective was reached by the State of Florida.
2. Several of the reports required to be filed by Section 934.09(6), Florida Statutes, were not filed by the State of Florida.
3. Each of the applications submitted to the Chief Justice of the Florida Supreme Court contained sufficient facts to establish probable cause that the offenses stated were being or were about to be committed by the individuals named and that the telephone lines named were being used to commit the offenses. However, the applications do not contain a full and complete statement of the facts concerning all previous applications involving the persons or telephone lines specified in the applications that were known to the persons making the applications.
4. Subsequent applications for authority to intercept failed to identify Defendants that had been previously intercepted as persons whose communications were going to be intercepted by such subsequent authorization. The agents of the State of Florida knew that the Defendants previously intercepted would be intercepted by the electronic surveillance resulting from the new authorizations.
5. The maximum punishment for conviction of bookmaking in the State of Florida is one year. Authorization for electronic surveillance of telephone lines is limited by Federal law to investigation of crimes punishable by imprisonment for more than one year.

The state contends that the trial court either erred in its findings set out above, or erred in concluding that suppression was necessary as a result of such findings.

Wiretaps are authorized in Florida by Chapter 934, Florida Statutes (1975). This statute contains detailed provisions relating to the contents of applications for wiretaps, standards for issuance of wiretap authorizations, conduct of the taps, use of evidence derived from the taps, and grounds for suppression of wiretap evidence. The Florida Supreme Court has held that the statute is an exception to the federal and state constitutional right to privacy and must be strictly construed and narrowly limited in its application by the specific provisions set out by the legislature. In Re Grand Jury Investigation, 287 So.2d 43 (Fla. 1973). Indeed, the statute itself recites *74 the legislature's findings of the need to protect the right of privacy while at the same time allowing necessary wiretaps as an aid to law enforcement. In addition, it must be noted that federal law has preempted the field of wiretaps, and any state law regulating the interception of wire communications must provide safeguards at least as stringent as those set out in the federal statute. State v. McGillicuddy, 342 So.2d 567 (Fla. 2d DCA 1977). Chapter 934 is, in fact, almost identical to its federal counterpart, Wire Interception and Interception of Oral Communications, 18 U.S.C.A. §§ 2510-2520 (1970).

With regard to the first finding concerning the Di Pietro tap the state contends that the tap was not maintained beyond the time the authorized objective was realized and further maintains that even if it was, only suppression of evidence obtained after reaching the objective would be required. The authorization order for the Di Pietro tap authorized the interception of wire and oral communications between Di Pietro and others

... consisting of the taking or receiving of bets or wagers upon the results of trials, or contests of skill, speed, power or endurance of man, beast, fowl or motor vehicle.

The only limitation as to time provided:

The period of time under which interception is authorized is not to exceed 30 (thirty) days from the date of this ORDER, and said interception pursuant to this ORDER shall not automatically terminate when the above described communications have first been obtained, but such interception shall be terminated upon attainment of the authorized objectives, or in any event 30 (thirty) days.

The application alleged the existence of a conspiracy to violate the Florida laws relating to bookmaking and gambling in an organized manner. The purpose of the wiretap, as stated in the application, was to determine the

... existence of these unknown persons who are part of this conspiracy, and to obtain additional evidence against JOSEPH PATRICK DI PIETRO a/k/a PAT.

The Di Pietro tap commenced on May 12 and terminated on May 25. Appellee, Di Pietro, contends that the state knew the identity of the conspirators involved with Di Pietro even before the tap was started and in any case learned all of their identities by May 17. There was evidence that the applicant for the wiretaps knew the names of all of the appellees in connection with previous gambling investigations. However, there is no evidence that the applicant had already secured evidence that these individuals and Di Pietro were co-conspirators in an illegal gambling operation.

The Di Pietro tap was authorized for thirty days. It was terminated after thirteen days. No "authorized objectives" were actually set out in the order, and we do not believe the authorization was violated even if restricted to the objectives set out in the application. The applicant testified that he terminated the Di Pietro tap after the information he obtained became "redundant", since the same people were detected placing calls to or from the Di Pietro telephone. We can see no violation of the terms of the authorization order. In addition, suppression of all wiretap evidence under circumstances where the tap is continued beyond the authorized objective is only mandated where the procedural requirements to minimize interception are blatantly ignored. Rodriguez v. State, 297 So.2d 15 (Fla. 1974). The trial court specifically found that the police official involved herein acted in good faith. There is no evidence or finding that the official blatantly ignored the requirements in the authorization order for terminating the taps and hence minimizing the interception of Di Pietro's line.

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Bluebook (online)
366 So. 2d 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-aurilio-fladistctapp-1978.