State v. Enriquez

8 Fla. Supp. 2d 70
CourtCircuit Court for the Judicial Circuits of Florida
DecidedOctober 24, 1983
DocketCase No. 82-11333
StatusPublished

This text of 8 Fla. Supp. 2d 70 (State v. Enriquez) is published on Counsel Stack Legal Research, covering Circuit Court for the Judicial Circuits 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. Enriquez, 8 Fla. Supp. 2d 70 (Fla. Super. Ct. 1983).

Opinion

OPINION OF THE COURT

THOMAS M. CARNEY, Acting Circuit Judge.

[71]*71 ORDER ON MOTIONS TO SUPPRESS

The Defendants seek to have evidence gathered by means of electronic surveillance suppressed. The Court has reviewed the legal memoranda, the testimony at the hearing, the applications for warrants, the transcripts of the intercepted calls on warrants, and the applicable law.

STANDING

All Defendants contend they have standing to contest the legality of the series of interlocking taps that comprise the challenged evidence.

In sequence, the taps began by the police record warrantless consent calls between one Marvin McAdams and a suspected narcotics trafficker Frank Barber. The taps that follow are interlocking in the sense that the Barber taps provided the police with probable cause for warrants on the taps that followed.

All of the Defendants were not parties to each conversation recorded. Likewise all Defendants were not recorded at their own premises in each instance.

The first issue for this Court is whether a Defendant not overheard on a tap has standing to contest it because the tap provides police with probable cause to obtain later taps in which he is overheard and that are damaging to that Defendant.

Only those Defendants whose conversations were overheard are “aggrieved persons” with standing to challenge that tap. Alderman v. U.S., 89 S. Ct. 961 (1969). This rule has been adopted in Florida. Here it has been held that a Defendants personal rights are only violated when he has himself been overheard or when the conversation occurs on his premises. State v. Albano, 394 So.2d 1026 (Fla. 2d DCA 1981).

In a case similar factually to the one at bar, the Defendants challenging a second wiretap in which they were implicated in crimes were held to be without standing because an illegally obtained first tap, which was used for probable cause to support the second, did not implicate them. They simply were not “aggrieved parties” under the applicable Federal electronic surveillance statute. U.S. v. Scasino, 513 F.2d 47 (5th Cir. 1975).

Accordingly, only those Defendants who were overheard or if the conversation occurred on their premises may challenge that tap.

Based on these considerations, the Court makes the following findings of fact as to standing.

[72]*72THE BARBER TAP

1. The Defendant Femando Enriquez alone has standing.

THE LUIS VASQUEZ BUSINESS TAP

2. The following Defendants alone have standing;

Angel E. Alvarez

Raymond Baszner

Jorge Casanova

Alberto DeLeon

Fernando Enriquez

Sergio Gonzalez

Maurice Steen

Luis Fernando Vasquez

THE LUIS VASQUEZ RESIDENCE TAP

3. The following Defendants alone have standing;

Bobby

Roberto DeLeon

Alberto J. Cordero

RECORDED TAPS PRIOR TO THE FIRST SURVEILLANCE WARRANT

The original recorded Barber and McAdams telephone conversations that gave rise to the issuance of the Barber Tap Warrant were themselves obtained without a warrant. The Defendants urge that a warrant was necessary and that the recordings were illegal, making suppression of all that flowed from them a requirement. It is true that State v. Sarmiento, 397 So.2d 643 (Fla. 1981) obligates police to obtain a warrant where they seek to overhear conversations conducted in a home. It is also true that the calls were made to Barber’s home. The flaw in the Defendants position is that the home in question belongs to Barber. No telephone conversations were recorded during this prewarrant period that emanated from the home of any Defendant in the case at bar.

The position taken by Defendant Enriquez that since he is implicated [73]*73on the Barber tap, he is entitled to challenge the prior tap on which he is not implicated is thoroughly wrong as the Court understands the cases previously analyzed.

Defendants also raise the constitutionality of Chapter 934, the degree of prior surveillance disclosure, exhaustion of investigative techniques, minimization of intrusion and other issues. But, before passing on those issues the Court will first determine the issue of probable cause to authorize the intercept telecommunications warrants.

PROBABLE CAUSE

The sufficiency of an affidavit in support of an application to intercept telecommunications must be determined from bits and pieces read in isolation. Zuppardi v. State, 367 So.2d 601 (Fla. 1978). It is tested in common sense and realistic fashion. Amerson v. State, 388 So.2d 1387 (Fla. 1st DCA 1980). In reviewing a magistrates determination of probable cause, such finding must stand in the absence of arbitrariness.

The basis for probable cause in this case comes from three areas; the intercepted calls and the two confidential informants. The Court finds therefore, that Judge Scott did not act arbitrarily in determining probable cause to issue the warrants in question.

There is little doubt that the intercepted calls in the transcripts do not suggest definite criminal activity. Even though suspicious, they are not enough. The Court will consider them, however, in conjunction with the information given by informants “A” and “B”.

Under Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509 (1964), and Spinelli v. U.S., 393 U.S. 410, 98 S.Ct. 584 (1969), informants “A” and “B” had to pass a two-pronged test in order for the police to legally use their information. In short, they must show some of the underlying circumstances from which it can be determined that their information is reliable and supply some information from which the police can conclude that they themselves are reliable. As to informant “A”, the Court makes the following findings of fact;

1. “A” stated he was a member of the Alvarez drug organization; engaged in the smuggling of narcotics.

2. He described geographically how a drug smuggling organization is coordinated between the U.S., Colombia and the Bahamas.

3. He accurately informed police as to several meetings between alleged drug kingpins.

4. He gave police accurate information about a shipment of cocaine in [74]*74the spring of 1981, when police witnessed the landing of a plane and followed a van to a house in Miami, where 829 pounds of cocaine was seized.

5. Subsequent to that seizure “A” was unable to obtain any further information.

Based on the information supplied by informant “A”, this Court finds that he satisfied that Aquilar test of reliability. As an insider in the alleged drug conspiracy it can be assumed that “A” was in a position to provide police with accurate information. The Court also finds “A” himself has proven to be a reliable individual. His information directly led to a seizure by the police of a large quantity of cocaine.

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Related

Aguilar v. Texas
378 U.S. 108 (Supreme Court, 1964)
Spinelli v. United States
393 U.S. 410 (Supreme Court, 1969)
Alderman v. United States
394 U.S. 165 (Supreme Court, 1969)
United States v. Chavez
416 U.S. 562 (Supreme Court, 1974)
Pfizer Inc. v. Government of India
434 U.S. 308 (Supreme Court, 1978)
Dalia v. United States
441 U.S. 238 (Supreme Court, 1979)
Smith v. Maryland
442 U.S. 735 (Supreme Court, 1979)
Zuppardi v. State
367 So. 2d 601 (Supreme Court of Florida, 1978)
State v. Sarmiento
397 So. 2d 643 (Supreme Court of Florida, 1981)
Cuba v. State
362 So. 2d 29 (District Court of Appeal of Florida, 1978)
Hudson v. State
368 So. 2d 899 (District Court of Appeal of Florida, 1979)
Daniels v. State
381 So. 2d 707 (District Court of Appeal of Florida, 1979)
Amerson v. State
388 So. 2d 1387 (District Court of Appeal of Florida, 1980)
State v. Albano
394 So. 2d 1026 (District Court of Appeal of Florida, 1981)
State v. Jennings
396 So. 2d 1231 (District Court of Appeal of Florida, 1981)
Hernandez v. State
397 So. 2d 435 (District Court of Appeal of Florida, 1981)
State v. Carney
407 So. 2d 340 (District Court of Appeal of Florida, 1981)
United States v. Turner
528 F.2d 143 (Ninth Circuit, 1975)

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Bluebook (online)
8 Fla. Supp. 2d 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-enriquez-flacirct-1983.