State v. Otte

887 So. 2d 1186, 2004 WL 2251849
CourtSupreme Court of Florida
DecidedOctober 7, 2004
DocketSC03-330
StatusPublished
Cited by8 cases

This text of 887 So. 2d 1186 (State v. Otte) 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. Otte, 887 So. 2d 1186, 2004 WL 2251849 (Fla. 2004).

Opinion

887 So.2d 1186 (2004)

STATE of Florida, Appellant,
v.
James OTTE, Appellee.

No. SC03-330.

Supreme Court of Florida.

October 7, 2004.

Charles J. Crist, Jr., Attorney General, Belle B. Schumann and Killie A. Nielan, Assistant Attorney General, Daytona Beach, FL, for Appellant.

Gerard F. Keating, Daytona Beach, FL, for Appellee.

CANTERO, J.

In this case, we decide whether a Florida statute that authorizes wiretaps for the investigation of certain crimes conforms to a federal statute that also authorizes wiretaps, but only in certain circumstances. The federal statute preempts any state *1187 laws concerning wiretaps, although states may enact more restrictive provisions.

The State appeals State v. Fratello, 835 So.2d 312 (Fla. 5th DCA 2002),[1] in which the district court declared invalid section 934.07, Florida Statutes (1999), to the extent that it authorizes law enforcement officials to intercept communications related to prostitution. Our jurisdiction is mandatory. See art. V, § 3(b)(1), Fla. Const. The precise question we must address is whether violations of Florida's Racketeer Influenced and Corrupt Organization (RICO) statute, § 895.03, Fla. Stat. (1999), constitute crimes "dangerous to life, limb, or property" under 18 U.S.C. § 2516(2) when the predicate acts are related to prostitution. As explained below, we hold that violations of the Florida RICO statute do constitute crimes "dangerous to life, limb, or property," and therefore section 934.07's authorization of wiretaps for such crimes is consistent with the federal statute.

I. The Facts of the Case

The State filed an information alleging that appellee James Otte was employed by or associated with a business named Elegant Encounters, an escort service that provided prostitution services. It charged Otte with racketeering and conspiracy to commit racketeering in violation of Florida's RICO statute, § 895.03(3)-(4), Fla. Stat. (1999), and with deriving support from prostitution in violation of section 796.05, Florida Statutes (1999). The State obtained an order authorizing a wiretap on a telephone in Otte's home. The order was based on the State's allegation, and the court's finding, that probable cause existed to believe Otte was engaging in racketeering and money laundering in violation of Florida's RICO statute through his management and direction of prostitutes and their clients. Fratello, 835 So.2d at 313. Otte filed a motion to suppress evidence, contending that the wiretap order was illegal. The trial court granted the motion. On appeal, the Fifth District Court of Appeal affirmed, holding that the wiretap was not authorized under federal law. Id. at 316.

II. Federal and State Wiretap Authorization

The issue in this case is the validity of part of the Florida wiretap statute, § 934.07, Fla. Stat. (1999), under the federal wiretap statute, 18 U.S.C. § 2516 (2000). The federal statute specifies that wiretaps may be authorized

when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.

Id. (emphasis added). Therefore, the statute authorizes wiretaps to investigate certain enumerated offenses, as well as other, unspecified offenses that are dangerous to life, limb, or property and punishable by imprisonment for more than one year.

The federal wiretap statute preempts the field of wiretapping and electronic surveillance and limits a state's authority to legislate in this area. State v. Rivers, 660 So.2d 1360, 1362 (Fla.1995). It *1188 allows states to adopt similar procedures authorizing state law enforcement personnel to intercept communications in a criminal investigation. 18 U.S.C. § 2516(2) (2000). Although states are free to adopt more restrictive statutes, they cannot adopt less restrictive ones. Rivers, 660 So.2d at 1362.

Section 934.07, Florida Statutes (1999), establishes the state procedures for authorizing the interception of communications. The statute permits a court to order a wiretap

when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, arson, gambling, robbery, burglary, theft, dealing in stolen property, prostitution, criminal usury, bribery, or extortion; any violation of chapter 893; any violation of the provisions of the Florida Anti-Fencing Act; any violation of chapter 895 [RICO]; any violation of chapter 896 [money laundering]; ... or any conspiracy to commit any violation of the laws of this state relating to the crimes specifically enumerated above.

§ 934.07, Fla. Stat. (1999) (emphasis added).[2] While the Florida statute refers to both prostitution and Florida's RICO statute, the federal statute refers to neither.

III. The Use of Wiretaps to Investigate Prostitution-Related Offenses

We previously have held the Florida statute invalid in authorizing wiretaps to investigate prostitution because that crime is not identified in the federal statute and it is not a crime "dangerous to life, limb, or property." See Rivers, 660 So.2d at 1362. Now we must determine whether the authority in Florida's statute to use wiretaps to investigate RICO violations suffers from the same deficiency, at least as applied to RICO crimes (such as racketeering and money laundering) where the underlying offenses are related to prostitution. The issue presented is a pure question of law subject to de novo review. See State v. Glatzmayer, 789 So.2d 297, 302 n. 7 (Fla.2001) (noting that "[i]f the ruling consists of a pure question of law, the ruling is subject to de novo review").

In holding that the wiretaps were unauthorized under federal law because the underlying crimes were prostitution-related, the Fifth District Court of Appeal largely relied on our decision in Rivers. 835 So.2d at 316. Therefore, we analyze exactly what we determined in that case. In Rivers, law enforcement investigated an alleged prostitution ring. They obtained a wiretap to gather evidence of "ongoing violations of Chapter 796, Florida Statutes, prohibiting prostitution." 660 So.2d at 1361. Based on the information obtained through the wiretap, the State charged the defendants with prostitution-related offenses and RICO violations. 660 So.2d at 1361. We first noted that the wiretap was obtained based solely on allegations of prostitution-related offenses and that the *1189 "RICO charges only materialized after the State obtained evidence through intercepting communications pursuant to the wiretap order." 660 So.2d at 1361 (emphasis added).

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887 So. 2d 1186, 2004 WL 2251849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-otte-fla-2004.