State v. Jackson

650 So. 2d 24, 1995 WL 48439
CourtSupreme Court of Florida
DecidedFebruary 9, 1995
Docket83760
StatusPublished
Cited by18 cases

This text of 650 So. 2d 24 (State v. Jackson) is published on Counsel Stack Legal Research, covering Supreme Court 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. Jackson, 650 So. 2d 24, 1995 WL 48439 (Fla. 1995).

Opinion

650 So.2d 24 (1995)

STATE of Florida, Petitioner,
v.
Roberta JACKSON, Respondent.

No. 83760.

Supreme Court of Florida.

February 9, 1995.

*25 Robert A. Butterworth, Atty. Gen., Robert J. Krauss, Sr. Asst. Atty. Gen., Chief of Crim. Law, and Davis G. Anderson, Jr. and Kimberly D. Nolen, Asst. Attys. Gen., Tampa, for petitioner.

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

HARDING, Justice.

We have for review Jackson v. State, 636 So.2d 1372 (Fla. 2d DCA 1994), wherein the Second District Court of Appeal certified the following question as one of great public importance:

DOES INFORMATION TRANSMITTED TO A DISPLAY PAGER CONSTITUTE AN ELECTRONIC COMMUNICATION AS DEFINED BY SECTION 934.02(12), FLORIDA STATUTES (1991), SUCH THAT TO LAWFULLY INTERCEPT SUCH INFORMATION THROUGH A DUPLICATE DISPLAY PAGER, THE STATE OF FLORIDA MUST FIRST SEEK AUTHORIZATION PURSUANT TO SECTIONS 934.07 AND 934.09, FLORIDA STATUTES (1991)?

Id. at 1377.

We rephrase the question to read:

MUST THE STATE OF FLORIDA SEEK AUTHORIZATION PURSUANT TO SECTIONS 934.07 AND 934.09, FLORIDA STATUTES (1991), TO LAWFULLY INTERCEPT INFORMATION TRANSMITTED TO A DISPLAY PAGER THROUGH A DUPLICATE DISPLAY PAGER?

We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution and answer the rephrased certified question in the affirmative.

In June 1991, a Sarasota police detective petitioned the circuit court for an order authorizing the duplication of Jackson's pager. The judge granted the ex parte application and issued an order directing GTE Communications Carrier to cooperate with law enforcement officers in acquiring a duplicate pager and intercepting telephone numbers called into Jackson's pager for thirty days. In July 1991, another detective repeated the application process before a different circuit judge and obtained a duplicate order. To obtain the court orders, detectives followed the procedures for application and issuance of an order for a pen register or a trap-and-trace device.[1]See §§ 934.32, .33, Fla. Stat. (1991).

The detectives monitored the numbers called into Jackson's display pager and determined *26 that the numbers included a two- or three-digit code that identified the caller, the caller's telephone number, and the amount of drugs the caller wanted to purchase from Jackson. After intercepting a series of digitized transmissions, the detectives verified this information with visual surveillance of Jackson in her car. 636 So.2d at 1373.

Based on the information intercepted through the duplicate display pager, police obtained a search warrant for Jackson's car in August 1991. The detectives searched the car, discovered cocaine, and arrested Jackson. Jackson was prosecuted for trafficking in cocaine. She moved to suppress the evidence and, after the trial court denied her motion, entered a plea of nolo contendere, specifically reserving her right to appeal.

Jackson appealed her judgment and 4 1/2-year prison sentence for trafficking in cocaine, arguing that the trial court erred in denying her motion to suppress because the search warrant was based on illegally intercepted communications. Without this tainted information, she argued, the facts relied on to establish probable cause were otherwise stale. Jackson also argued that the information transmitted to a display pager constitutes an electronic communication as defined by section 934.02(12), Florida Statutes (1991). She contended that anyone who wanted to intercept such communications must follow the wiretap procedures set forth in sections 934.07 and 934.09, Florida Statutes (1991). The wiretap procedures are more stringent than those the police followed in this case.

The Second District Court of Appeal agreed with Jackson and held that the information intercepted by the duplicate display pager constituted interception of a protected electronic communication under the wiretap statute. Jackson, 636 So.2d at 1376. The court held that the State's failure to comply with wiretap procedures precluded the use of this information in the search warrant application. Id. at 1377. Finding the remaining facts insufficient to support the search warrant application, the district court reversed Jackson's judgment and sentence and remanded to the trial court with directions to grant Jackson's motion to suppress. Id. The court also certified the question to this Court.

This is an issue of first impression for this Court. The State urges us to hold that a duplicate digital display pager is similar to a pen register, and, therefore, not governed by the statutory requirements for a wiretap order. In the instant case, police followed the procedure for securing a pen register or a trap-and-trace device. See §§ 934.32, .33, Fla. Stat. (1991). The State concedes that if this Court holds that the interception of a duplicate display pager is governed by the wiretap procedures, it did not comply with those requirements in this case. Jackson, 636 So.2d at 1373, 1377.

Jackson argues, as she did in the court below, that the numbers dialed into her pager are electronic communications and wiretap procedures govern the interception of these numbers. Sections 934.07 and 934.09 set out a stringent procedure that applicants must follow to intercept wire, oral, or electronic communications. The difficulty with Jackson's argument is that the statutory definition of "electronic communication" does not include communication made through a display pager such as the one used in this case.[2]

Chapter 934 protects against the unauthorized interception of oral, wire, or electronic communications. Because the interception of these communications is a statutory exception to the federal and state constitutional right to privacy, In re Grand Jury Investigation, 287 So.2d 43 (Fla. 1973), these statutes must be strictly construed and narrowly limited *27 in their application according to the statutory language.

Until 1988, chapter 934 regulated only wire and oral communications. The Florida legislature substantially revised chapter 934 in 1988 to conform with the federal provisions regarding the interception of wire, oral, or electronic communications.[3] The legislature added electronic communications to chapter 934. As amended in 1988, the statute allows the interception of wire, oral, or electronic communications only when a law enforcement agency follows the wiretap procedures in section 934.09. An order authorizing the interception of wire, oral, or electronic communication requires a judicial finding of probable cause for belief that an individual is committing, has committed, or is about to commit an offense listed in section 934.07, probable cause for belief that communications about the offense will be obtained through the interception, and a determination that normal investigative procedures have failed, or reasonably appear to be unlikely to succeed if tried or to be too dangerous. The interception then remains under the control and supervision of the authorizing court. Tone-only paging devices are specifically excluded from the coverage of both the Florida and federal statutes. See § 934.02(12)(c), Fla. Stat. (1991); 18 U.S.C. § 2510(12)(c) (1988).

The plain language of section 934.09 does not indicate whether it applies to any other type of pager transmission.

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Bluebook (online)
650 So. 2d 24, 1995 WL 48439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jackson-fla-1995.