Petition for Writ of Certiorari — Florida v. Eber

Supreme

AUG 13 1997

8 v4 2 7 JOSEPH F SPANIOL, UR,

NO.

Court, U.S.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

THE STATE OF FLORIDA,

Petitioner,

Vs.

SETH EBER, ROBERT RIZZIERI, CHARLES

DELMONICO, SHELDON SPECTOR and

BURTON WOLCOFF,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA THIRD DISTRICT COURT

OF APPEAL

BRIEF OF PETITIONER ON JURISDICTION

ROBERT A. BUTTERWORTH

Attorney General

Tallahassee, Florida

RICHARD E. DORAN

Assistant Attorney General

Of Counsel:

CHARLES M. FAHLBUSCH

Assistant Attorney General

Department of Legal Affairs

401 N. W. 2nd Avenue,

Suite 820

Miami, Florida, 33128

(305) 377-5441

CLERK

.

am.

i

QUESTION PRESENTED

WHETHER THE OPINION OF THE

THIRD DISTRICT COURT OF

APPEAL OF FLORIDA DISREGARDED

THE OPINION OF THIS COURT IN

FRANKS v. DELAWARE, 438 U.S.

154, 98 S.CT. 2674, 57

L.ED.2D 667 (1978), ADOPTED

BY FLORIDA IN’ ANTONE V.

STATE, 382 SO.2D 1205 (FLA.

1980); CERT. DENIED, 449 U.S.

912; 101 S.CT. 287, 66

L.ED.2D 141 (1980) AND MAN-

DATED BY ARTICLE I, SECTION

12 OF THE FLORIDA CONSTI-

TUTION (1982).

ii

TABLE OF CONTENTS

QUESTION PRESENTED... cccccccccccce i

WHETHER THE OPINION OF THE

THIRD DISTRICT COURT OF APPEAL

OF PLORIDA DISREGARDED THE

OPINION OF THIS COURT IN FRANKS

V. DELAWARE, 438 U.S. 154, 98

S«eGre 26/4, 57 L.ED.2D 667

(1978), ADOPTED BY FLORIDA IN

ANTONE V. STATE, 382 SO.2D 1205

(FLA. 1980) CERT. DENIED, 449

U.S. 913; 101 S.cT. 287, 66

L.ED.2D 141 (1980) AND MANDATED

BY ARTICLE I, SECTION 12 OF THE

FLORIDA CONSTITUTION (1982).

TABLE OF AUTHORITIES..... cecccccces ii

OPINIONS BELOW... ccccccccccccccccce 1

JURISDICTION... ccccce cecccccccccecs 2

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS...... ecccee 3-5

STATEMENT OF THE CASE.....ccccccece 6-8

REASONS FOR GRANTING CERTIORARI..9-15

CONCLUSION. .cccc e*eeee#s eeeeeeee#ee#2e#8e?e#2e#ee# 16

iii

TABLE OF AUTHORITIES

United States Cases Page

United States v. Martin,

615 F.2d 318

CSO ie; SO oc kwcdacwd holes 14

United States v. Thomas,

489 F.2d 664 (5th Cir. 1973)

cert. denied, 423 U.S. 844,

96 S.Ct. 7/9,

46 t.; BO.98 G6 (iS7S) cuss o ne 14

Franks v. Delaware,

438 U.S. 154, 98 S.Ct. 2674,

S7 £..886.28 G67? CiStOdcscctds 9,10,

Liisa

CASES

Antone v. State,

382 So.2d 1205 (Fla. 1980);

cert. denied, 449 U.S. 913,

101 S.Ct. 287, 66 L.Ed.2d 141

BS PP ere rer ere er 9,19,

Hudson v. State,

368 So.2d 899

(Fla. . a - |, o, See 8,10,

State v. Eber,

502 So.2d 32

[Pia; Be OER 2OOS) ook é as'vdds 1

OTHER AUTHORITIES

Rule 1/(c) of the Supreme Ct..... 2

ee Oe}: fo ) eee 2

Filia. Const. (1962) Art. I, $12... 9,34

1

I.

OPINION BELOW

The opinion of the Florida Supreme

Court declining conflict jurisdiction is

not yet reported (A.1).+

The opinion of the Florida Third

District Court of Appeal on Petitioner's

direct appeal from the trial court order

granting motions to suppress evidence

from electronic surveillance is repored

as State v. Eber, 502 So.2d 32 (Fla. 3d

DCA 1984) (A.3).

The order of the trial court

granting motions to suppress from

electronic surveillance is unreported

(A.18).

1 The symbol "A" is used _ to

designate the appendix to this brief.

2

JURISDICTION

The jurisdiction of this Court is

invoked pursuant to the provisions of

Rule 17 (c) of the Rules of the Supreme

Court and 28 U.S.C. §1257(3). The

opinion of the Florida Third District

Court of Appeal was filed on January 20,

1987 (A.3). A timely filed Motion for

Rehearing and Clarification was denied

on February 25, 1987 (A.16). A timely

filed Petition for Review to the Florida

Supreme Court was denied on June 19,

1987 (A.1).

3

III

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The applicable provisions of the

United

States Constitution read

follows:

AMENDMENT IV

The right of the people to be

secure in their persons,

houses, papers, and effects,

against unreasonable searches

and seizures, shall not be

violated, and no Warrants

shall issue, but upon pro-

bable cause, supported by

Oath or affirmation, and

particularly describing the

place to be searched, and the

persons or things to be

seized.

as

ae

4

The applicable provisions of the

Constitution of the State of Florida

read as follows:

ARTICLE I

SECTION 12. Searches and

seizures. - The right of the

people to be secure in their

persons, houses, papers and

effects against unreasonable

searches and seizures’ and

against the unreasonable

interception of »rivate com-

munications by any means,

shall not be violated. No

warrant shall be issued

except upon probable cause,

supported by affidavit, par-

ticularly describing the

place or places to be

searched, the person or

persons, thing or things to

be seized, the communication

to be intercepted, and the

nature of evidence to be

obtained. This right shall

be construed in conformity

with the 4th Amendment to the

United States Constitution,

as interpreted by the United

States Supreme Court. Arti-

cles or information obtained

in violation of this right

shall not be admissible in

evidence if such articles or

re eS ee

5

information would be inad-

missible under decisions of

the United States Supreme

Court construing the 4th

Amendment to the United

States Constitution.

ee

6

STATEMENT OF THE CASE

The respondents were charged in the

Circuit Court of Dade County, Florida

with multiple charges relating to

Extortion, Grand Theft and Dealing in

Stolen Property.” The respondents filed

a joint motion to suppress evidence

obtained by electronic’ surveillance

(A.18). The primary ground for the

motion was alleged errors and omissions

contained in the affidavits in support

of the warrants concerned (A.26-31).

The trial court found that a number

of errors and omissions, in affidavits

concerning different warrants, were,

when added together, material to the

2 ‘The charging documents are

multiple and somewhat lengthy = and,

therefore, are omitted from the

appendix. Should this Court accept

jurisdiction, they will be provided as a

portion of the Record-on-Appeal.

7

establishment of probable cause and,

therefore, required reversal under the

standard of Hudson v. State, 368 So.2d

899 (Fla. 3d DCA 1979). MThis standard

requires that the affidavits concerned

be invalidated, ". . .if the errors in

the affidavit were committed with intent

to deceive the magistrate, whether or

not the errors were material to a show-

ing of probable cause, or if the errors

were made nonintentionally, but the

erroneous statements are material to the

establishment of probable cause...."

(A.26).

The Third District Court of Appeal

reversed the trial court as to one (1)

defendant, who was found not to have

standing, but affirmed it as to all

other defendants, implicity approving

the trial court's order and the appli-

clei a ead

8

cation of the standard in Hudson v.

State, 368 So.2d 899 (Fla. 3d DCA 1979).

The Petitioner applied to’ the

Florida Supreme Court for discretionary

review, on the grounds of direct and

express conflict with Antone v. State,

382 So.2d 1205 (Fla. 1980); cert denied,

449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d

141 (1980), which applied to the State

of Florida the standard of Franks Vv.

Delaware, 438 U.S. 154, 98 S.Ct. 2674,

57 L.Ed.2d 667 (1978). However, the

Florida Supreme Court denied juris-

diction on June 19, 1987 (A.1).

9

V

REASONS FOR GRANTING CERTIORARI

Appeal has

fact,

PROPOSITION I

The decision of the trial

court, approved by the Third

District Court of Appeal, to

apply the standard of Hudson

v. State, 368 So.2d 899 (Fla.

3d DCA 1979) to the issue of

whether alleged errors’ and

omissions contained in affi-

davits in support of warrants

for electronic surveillance

is in direct and express con-

flict with the decision of

this Court in Franks v.

Delaware, 438 U.S. 154, 98

S.Ct. 2674, 57 L.Ed.2d 667

(1978), which was applied to

the State of Florida in

Antone v. State, 382 So.2d

1205 (Fla. 1980); cert.

denied, 449 U.S. 913, 101

S.¢e. 267, 4 b.88.24 141

(1980) and is mandated by

Article I, Section 12 of the

Florida Constitution (1982).

incorrectly applied and,

The Florida Third District Court of

in

rejected the standard this Court

set for review of alleged errors and

|

10

omissions in affidavits in support of

warrants for electronic surveillance in

the case of Franks v. Delaware, 438 U.S.

154, 98 S.Ct. 2674, 57 L.Ed.2d 667

(1978).

The order of the trial court

properly set forth the standard for

reviewing such affidavits pursuant to

Hudson v. State, 368 So.2d 899 (Fla. 3d

DCA 1979). That is;

...-Affidavits in support of

a wiretap order are invalid

if the errors in the affi-

davit were committed with

intent to deceive the magis-

trate, whether or not the |

errors were material to show-

ing of probable cause, or if

errors were made noninten-

11

tionally, but the erroneous

statements are material to

the establishment of probable

cause. Hudson v. State, 368

So.2a 899 (3d DCA 1979)....

(A.26).

This is in clear contradiction to

the standard set in Franks, as follows;

There is, of course, a pre-

sumption of validity with

respect to the affidavit sup-

porting the search warrant.

To mandate an evidentiary

hearing, the challenger's

attack must be more than

conclusory and must be sup-

ported by more than a mere

desire to cross examine.

There must be allegations of

deliberate falsehood or of

reckless disregard for the

truth, and those allegations

must be accompanied by an

offer of proof. They should

point out specifically the

portion of the warrant affi-

davit that is claimed to be

false; and they should be

12

accompanied by a statement of

supporting reasons. Affi-

davits or sworn or otherwise

reliable statements of wit-

nesses should be furnished,

or their absence satisfac-

torily explained. Alilega-

tions of negligence or

innocent mistake are insuf-

ficient. The deliberate

falsity or reckless disregard

whose impeachment is- per-

mitted today is only that of

the affiant, not of any

nongovernmental informant.

Finally, if these require-

ments are met, and if, when

material that is the subject

of the alleged falsity or

reckless disregard is set to

one side, there remains

sufficient content in the

warrant affidavit to support

a finding of probable cause,

no hearing is required. On

the other hand, if the

remaining content is insuffi-

cient, the defendant is

entitled, under the Fourth

and Fourteenth Amendments, to |

his hearing. Whether he will

prevail at that hearing is,

of course’ another issue.

(footnote omitted).

Franks v. Delaware, 438 U.S.

154, l?l-l?2 (1978).

a a

13

The Hudson case had relied on the

prior standard of United States v.

Thomas, 489 F.2d 664 (5th Cir. 1973);

cert. denied, 423 U.S. 844, 96 S.Ct. 79,

46 L.Ed.2d 64 (1975) which was replaced

by the Franks standard. United States

v. Martin, 615 F.2d 318, 328 (5th Cir.

1980).

Further, there can be no question

that Federal Law, not State Law was

applied. First, the Franks opinion was

adopted as the law of Florida in Antone

v. State, 382 So.2d 1205 (Fla. 1980);

cert. denied, 449 U.S. 913, 101 S.Ct.

287, 66 L.Ed. 2d 141 (1980).

Second, the application of Franks

is mandanted by the 1982 revision of the

Florida Constitution, as follows:

SECTION 12. Searches and

seizures. - The right of the

people to be secure in their

§12.

14

persons, houses, papers and

effects against unreasonable

searches and seizures, and

against the unreasonable

interception of private

communications by any means,

shall not be violated. No

warrant shall be issued

except upon probable cause,

supported by affidavit,

particularly describing the

place or places to be

searched, the person or

persons, thing or things to

be seized, the communication

to be intercepted, and the

nature of evidence to be

obtained. This right shall

be construed in conformity

with the 4th Amendment to the

United States Constitution,

as interpreted by the United

States Supreme Court. Arti-

cles or information obtained

in violation of his right

shall not be admissible in

evidence if such articles or

information would be inad-

missible under decisions of

the United States Supreme

Court construing the 4th

Amendment to the United

States Constitution. (empha-

sis added).

Florida Constitution (1982) art.

I,

15

Therefore, the Third District Court

of Appeal of Florida implicity overruled

this Court's Franks decision in this

case.

16

vi

CONCLUSION

This Court is therefore urged to

accept this case to resolve the conflict

concerned in the instant issues of

compelling national importance.

RESPECTFULLY SUBMITTED on this

day of August, 1987 at Tallahasse,

Florida.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

RICHARD E. DORAN

Assistant Attorney General

Dept. of Legal Affairs

401 N. W. 2nd Avenue

Suite 820

Miami, Florida 33128

ee i

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

THE STATE OF FLORIDA,

Petitioner,

vs.

SETH EBER, ROBERT RIZZIERI, CHARLES

DELMONICO, SHELDON SPECTOR and

BURTON WOLCOFF,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA THIRD DISTRICT COURT

OF APPEAL

APPENDIX TO BRIEF OF PETITIONER ON

JURISDICTION

ROBERT A. BUTTERWORTH

Attorney General

Tallahassee, Florida

RICHARD E. DORAN

Assistant Attorney General

Of Counsel:

CHARLES M. FAHLBUSCH

Assistant Attorney General

Department of Legal Affairs

401 N. W. 2nd Avenue,

Suite 820

Miami, Florida, 33128

(305) 377-5441

A-1

SUPREME COURT OF FLORIDA

FRIDAY, JUNE 19, 1987

STATE OF FLORIDA,

Petitioner,

Vv. CASE NO.

70,217

SETH EBER, ROBERT RIZZIERI 3d DCA

CHARLES DELMONICO, SHELDON Case Nos.

SPECTOR, RICHARD SAN ROMAN 86-65,

and: BURTON WOLCOFF, 86-70,

86-71

Respondents. 86-72

86-75

/

This cause having heretofore been

submitted to the Court on jurisdictional

briefs and portions of the record deemed

necessary to reflect jurisdiction under

Article V, Section 3(b), Florida Consti-

tution (1980), and the Court having

determined that it should decline to

accept jurisdiction, it is ordered that

the Petition for Review is denied.

A-2

No Motion for Rehearing will be

entertained by the Court. See Fla. R.

App. P. 9.330(d).

EHRLICH, Acting C.J. SHAW, BARKETT,

GRIMES and KOGAN, JJ., concur

Respondents' Motion to Strike Brief

of Petitioner on Jurisdiction is hereby

denied.

EHRLICH, Acting C.J. BARKETT, GRIMES and

KOGAN, JJ., concur SHAW, J., dissents

A True Copy H

TEST:

Sid J. White

Clerk Supreme Clerk

cc: Hon. Louis J. Spallone,

Clerk, Hon. Richard P. Brinker,

Clerk, Hon. D. Bruce Levy, Judge,

Charles M. Fahlbusch, Esquire,

Mel Black, Esquire,

Burce Rosenthal, Esquire

Craig Stella, Esquire

Arthur W. Tifford, Esquire

Neal Sonnett, Esquire

By _ yon

Deputy Clerk

A-3

IN THE DISTRICT COURT OF APPEAL OF

FLORIDA THIRD DISTRICT

JANUARY TERM, 1987

THE STATE OF FLORIDA,

Appellant,

vs. CASE NO.

SETH EBER and ROBERT RIZZIERI, 86-65

Appellees.

THE STATE OF FLORIDA,

Appellant,

vs. CASE NO.

CHARLES DELMONICO 86-70

Appellee.

THE STATE OF FLORIDA,

Appellant,

vs. CASE NO.

SHELDON SPECTOR, 86-71

Appellee.

aaa ai ai bi

THE STATE OF vunghee”

Appellant,

vs. CASE NO.

“4 86-72

RICHARD SAN ROMAN,

Appellee.

THE STATE OF FLORIDA,

Appellant,

vs. CASE NO.

BURTON WOLCOFF, 86-75

Appellee.

Opinion filed January 20, 1987.

Appeals from a non-final order from

the Circuit Court for Dade County, D.

Bruce Levy, Judge.

Robert A. Butterworth, Attorney

General, and Charles M. Fahlbusch,

Assistant Attorney General for

appellant. .

Mel Black, for appellee Eber;

Bennett H. Brummer, Public Defender, and

Bruce A. Rosenthal, Assistant Public

Defender, for appellee Rizzieri; Black

and Furci and Roy E. Black, and Maria

A-5

Tinkler Mendez, for appellee Delmonico;

Bierman, Sonnett, Shonat and Sale and

Benedict PP. Kuehne, for appellee

Spector; Arthur Tifford, for appellee

San Roman; C. Craig Stella (Fort

Lauderdale), for appellee Wolcoff.

Before BARKDULL and DANIEL S.

PEARSON and JORGENSON, JJ.

PER CURIAM.

The trial court's order granting

the defendants’ consolidated motions to

suppress evidence gathered by court

authorized electronic surveillance,

being amply supported by substantial

competent evidence and controlling case

law, is affirmed as to all defendants,

except Richard San Roman. Unlike the

other defendants, San Roman is not an

aggrieved person as that term is defined

in Section 934.02(9), Florida Statutes

(1981),+ and has no standing to complain

1 Section 934.02(9) reads:

(Continued )

A-6

of infringements on the constitutional

rights of others. Alderman v. United

States, 394 U.S. 165, 89 S.Ct. 961, 22

L.Ed.2d 176 (1969); Sarno v. State, 424

So.2d 829 (Fla. 3d DCA 1982), rev.

denied, 434 So.2d 888 (Fla. 1983); State

v. Ferguson, 411 So.2d 963 (Fla. 3d DCA

1982).

Although the trial court = appa-

rently--and correctly--concluded that

San Roman was neither a party to any

unlawfully intercepted wire or oral

communication nor a person against whom

such interception wire or oral communi-

cation nor a person against whom such

interception was directed, it neverthe-

less suppressed the evidence as to San

"*Aggrieved person' means a

person who was a party to any

intercepted wire or oral communi-

cation or a person against whom

the interception was directed."

A-7

Roman on the theory that because he was

"arrested pursuant to a search warrant,

which in turn, grounded its probable

cause on information gained from the

Cunlawful] wiretap, [he] had standing to

contest the wiretap order." The case

relied upon by the trial court for its

ruling, Scheider v. State, 389 So.2d 251

(Fla. lst DCA), rev. denied, 397 So.2d

779 (Fla. 1980), which invelved defen-

dants whose telephone conversations were

intercepted during the tap in question,

simply does not support the trial

court's decision in this regard.

Affirmed in part; reversed in part.

A-8

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA THIRD DISTRICT

CASE NO. 86-65, 86-70,

86-71, 86-72, 86-75

THE STATE OF FLORIDA, )

Appellant, ) MOTION

FOR RE-

vs. ; ) HEARING

AND

CLARIFI

SETH EBER, ROBERT RIZIERI, ) CATION

CHARLES DELMONICO, SHELDON

SPECTOR, RICHARD SAN ROMAN,

and BURTON WOLFF,

— ~~

Appellees. )

The Appellee, THE STATE OF FLORIDA,

through its undersigned attorneys,

pursuant to Rule 9.330 Fla.R.App.P.,

hereby moves this Court for rehearing

and clarification of its order of

January 20, 1987 on the following

grounds:

A-9

i. Although this Court properly

found that defendant Richard San Roman

did not have standing to contest the

validity of the warrants concerned, it

overlooked the fact that none of the

defendants except Charles Delmonico were

“aggrieved persons" under the statute to

contest the validity of the "body bug"

warrant of August 18, 1982. There is no

question that none of the other defen-

dants were named targets of the warrants

Or were overheard on the bug, clearly

removing them from the definition of

persons who have standing to contest the

warrant under F.S. §934.09 (9)(a).

» Second, this court overlooked

the fact that the trial court applied an

incorrect standard in finding that cer-

tain errors and omissions in the

supporting affidavit precluded a finding

A-10

of probable cause. The trial court

expressly applied the standard of Hudson

v. State, 368 So.2d 899 (Fla. 3d DCA

1979), as shown by its attached opinion,

which required only a showing that the

errors were either intentional or

material. This standard has long since

been replaced by the standard of Franks

v. Delaware, 438 U.S. 154 (1978),

adopted by this state and district in

Antone v. State, 382 So.2d 1205 (Fla.

1980); cert. denied, 449 U.S. 913 (1980)

and Vetter v. State, 395 So.2d 1199

(Fla. 3d DCA 1981). This standard

requires that deliberate falsity or

reckless disregard for the truth and

materiality be established to even be

entitled to a hearing.

3. This court also overlooked the

fact that the one (1) omission of the

oe

A-11

eleven (11) alleged errors and omissions

cited by the trial court which was

actually supported by the evidence, that

the affiant failed to notify the issuing

magistrate that the informant was paid,

is completely immaterial to any finding

of probable cause. The courts of this

state have held that there is no prac-

tical difference between a lay informer

and a paid informer. State v. Harring-

ton, 307 So.2d 466 (Fla. 2d DCA 1975).

Further, admissions against eiotine:;

many of which were contained in the

statements of the informant concerned,

have been held to provide sufficient

indicia of an informant's credibility to

support the issuance of warrants. State

v. Patterson, 309 So.2d 555 (Fla. 2d DCA

1975): See, also, United States v.

Harris, 403 U.S. 573 (1971); United

A-12

States v. Pate, 451 F.2d 1381 (7th Cir.

1971).

Certainly, there is no question

that there was any violation of the

standards of Cruz v. State, 465 So.2d

516 (Fla. 1985) or State v. Glosson, 462

So.2d 516 (Fla. 1985) where there was no

evidence, whatsoever, that payment to

the informant was contingent upon his

testimony. State v. Ruiz, 495 So.2d 256

(Fla. 3d DCA 1986); State v. Prieto, 479

So.2d 320 (Fla. 3d DCA 1985).

WHEREFORE, the Appellee, THE STATE

OF FLORIDA, through its undersigned

attorneys, hereby moves this court for

rehearing and for clarification of its

opinion on the above bases.

Respectfully submitted,

A-13

ROBERT A. BUTTERWORTH

Attorney General

CHARLES M. FAHLBUSCH

Assistant Attorney General

Dept. of Legal Affairs

401 N. W. 2nd Ave., # 820

Miami, Florida 33128

(305) 377-5441

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and

correct copy of the foregoing MOTION FOR

REHEARING AND CLARIFICATION was furn-

ished by mail to ROY E. BLACK, ESQ., 100

Chopin Plaza, Suite 1300, Miami, Florida

33131, HOWARD LUBEL, ESQ., Assistant

Public Defender, 1351 N. W. 12th Street,

Miami, Florida, 33125, ARTHUR W.

TIFFORD, ESQ., 1385 N. W. 15th Street,

Miami, Florida 33125, MEL BLACK, ESQ.,

3050 Biscayne Blvd. Suite 1002, Miami,

Florida 33137, CRAIG STELLA, ESQ., 524

S. Andrews Avenue, Suite 204E, Fort

‘eae

A-14

Lauderdale, Florida 33301, and NEIL

SONNETT, ESQ., 200 S.E. lst Street,

Suite 500, Miami, Florida 33131, on this

4th day of February, 1987.

CHARLES M. FAHLBUSCH

Assistant Attorney General

ml

A-15

IN THE DISTRICT COURT OF APPEAL OF

FLORIDA THIRD DISTRICT

WEDNESDAY FEBRUARY 25, 1987

THE STATE OF FLORIDA,

Appellant,

vs. CASE NO.

SETH EBER and POBERT RIZZIERI, 86-65

Appellees.

THE STATE OF FLORIDA,

Appellant,

vs. CASE NO.

CHARLES DELMONICO 86-70 ©

Appellee.

THE STATE OF FLORIDA,

Appellant,

vs. CASE NO.

SHELDON SPECTOR, 86-71

Appellee.

A-16

THE STATE OF FLORIDA,

Appellant,

vs.

RICHARD SAN ROMAN,

Appellee.

CASE NO.

86-72

THE STATE OF FLORIDA,

Appellant,

vs.

BURTON WOLCOFF,

Appellee.

CASE NO.

86-75

Upon consideration,

motion for rehearing and

is hereby denied.

A True Copy

ATTEST:

LOUIS J. SPALLONE

Clerk District Court of

Appeal, Third District

appellant's

Clarification

A-17

By Evelyn A. Hillman

cc:

/hb

Deputy Clerk

Charles M. Fahlbusch

Roy E. Black

Howard Lubel

Arthur Tifford

Mel Black

Craig Stella

Neil Sonnett

A-18

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT, IN

AND FOR DADE COUNTY, FLORIDA

CASE NOS. 84-2627, 84-2628

84-2629, 84-2630, 84-2631

STATE OF FLORIDA,

Plaintiff, ORDER

vs. P TO SUPPRESS

SETH EBER, ROBERT RIZZERI, TRONIC

BURTON WOLCOFF, CHARLES SURVEILLANCE

DELMONICO, RICHARD SAN

ROMAN & SHELDON SPECTOR,

Defendants.

/

THIS CAUSE came to be heard

pursuant to the Defendants' joint

motions to suppress evidence gathered by

court authorized electronic surveillance

pursuant to Chapter 934 of the Florida

Statutes. This Court held an eviden-

tiary hearing, lasting three days, from

the 18th to the 20th day of June, 1985,

and has also reviewed all the numerous

. A-19

written memoranda submitted by both

sides.

Chapter 934 sets up strict

requirements with regard to electronic

surveillance, which must be adhered to

in order to prevent improper govern-

mental easedropping and safeguard the

individual's right to privacy. Based on

the requirements of Chapter 934, and the

following Findings of Fact and Conclu-

sions of Law, this Court must suppress

all the evidence of the eedadeone

wiretaps pursuant to the June 10th, and

all subsequent applications, and the

body plug placed on informant CI-V16,

along with all the testimony derived

therefrom.

The events leading up to this case

originated in March of 1982. On March

10, 1982, the chief investigating

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officer and affiant in this case, Metro-

Dade Det. Sgt. John Collins, first met

with Moshe Perlman, shortly after

Perlman was arrested for receiving

stolen property. Perlman agreed to

cooperate with Sgt. Collins in the

investigation of Charles Delmonico, and

his associates, who the Miami Beach

Police Dept. believed to be involved in

the receiving of, and dealing in, stolen

jewelry. The Miami Beach Police Depart-

ment had been investigating this case

for some time before deferring to the

superior investigative resources of the

Organized Crime Bureau of the Metro Dade

Police Department.

Perlman was then set up in his own

jewelry store on Miami Beach by the

Metro Dade Police Department. Based on

information the police received from

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wiretaps on Perlman's phones, and the

easedropping equipment in his store, the

police, with Sgt. Collins as_— the

affiant, applied for a court order to

place wiretaps on certain phone lines of

Charles Delmonico, and other alleged

conspirators, to monitor their conver-

sations pertaining to receiving stolen

jewelry. This first application was

dated June 10, 1982, and was granted by

Judge Robert Kaye.

Additionally, the police gathered

information by placing a body bug on

Robert Distillator, who had been

involved with most of the named

Defendants. He agreed to work as an

information after some of the Defen-

dants' allegedly tried to "“strongarm"

him to scare him into repaying his

debts.

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STANDING

The first issue to be determined is

whether each of the Defendants has

standing to contest the legal

sufficiency of these wiretaps and other

electronic easedropping in this case.

Standing to challenge intercepted

communications is governed by §934.09(9)

(a), Florida Statutes. Any “aggrieved

person,” pursuant to §934.02(9), Florida

Statutes, is a person, who was a party

to any intercepted wire or oral

communication, or a person against whom

the interception was directed.

Under this standard, the Defen-

dants, Charles Delmonico, Seth Eber and

Robert Rizzieri have standing to contest

the validity of the wiretapped telephone

conversations. Delmonico, Eber and

Rizzieri were either named in the

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applications for wiretaps and/or were

parties to intercepted conversations.

In addition, the Defendants,

Sheldon Spector and Burton Wolcoff, have

standing to contest the validity of all

the wiretapped phone’ conversations,

since both were specifically named in

Attachment "A" to the July 9, 1982,

application and order. This applica-

tion, from the information gained from

the June 10th and 17th orders, and the

information derived from the July 9

order itself, subsequently was used to

support the August 11 and 18th orders.

The standing of Spector is’ further

strengthened by the fact that according

to Sgt. Collins, Spector, despite being

unidentified, frequently conversed with

Delmonico in the intercepted conversa-

tions on the subjects of dealing in

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stolen property and loansharking/

extortion.

The standing of the Defendant,

Richard San Roman, is a bit’ more

tenuous. But, based on the authority of

Schneider v. State, 389 So.2d 251 (Fla.

1 DCA 1980), rev. denied 397 So.2d 779,

which held that despite the fact defen-

dants failed to show a proprietary, or

possessory interest, in the tapped

telephone, defendants who were arrested

pursuant to a search warrant, which, in

turn, grounded its probable cause on

information gained from the wiretap, had

standing to contest the wiretap order,

this Court finds that the Defendant, San

Roman, also has standing to contest the

wiretaps at issue here.

Also supporting the standing of San

Roman, and the other Defendants, is the

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fact the affiants failed to show that

other more normal investigative techni-

ques, could not have been successfully

used in lieu of wiretaps in the stolen

property (jewelry) case. This topic

will be discussed further below.

Lastly, all defendants have

standing to contest the validity of the

Placement of an electronic monitoring

device (body bug) on the body of

informant CI-V16, which turned out to be

Distillator since the order, applied for

on August 18, 1982, provided for the

monitoring of any conversation between

DISTILLATOR and DELMONICO and/or any

other party that may occur at

Delmonico's residence.

A-26

PROBABLE CAUSE

Under §934.07, Florida Statutes,

authorizations for interceptions’ for

wire or oral communications must be

supported by a strong showing of

probable cause. Affidavits in support

of a wiretap order are invalid if the

errors in the affidavit were committed

with intent to deceive the magistrate,

whether or not the errors were material

to showing of probable cause, or if

errors were made nonintentionally, but

the erroneous statements are material to

the establishment of probable cause.

Hudson v. State, 368 So.2d 899 (3d DCA

1979). In this case, the affiant made

several key omissions and misstatements

of facts in his affidavits, which, when

added together were certainly material

to the establishment of probable cause,

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and thus these wiretaps must be

suppressed due to a lack of probable

cause in support thereof.

The affiant, Sargeant Collins, made

numerous material omissions of fact and

unsupported conclusions in his

affidavits. One example is his account

of a telephone conversation. between

Perlman and Delmonico, where Collins

reported that Delmonico toid Perlman to

say, "Hello, Moshe's Jewelry. This is

where we do the stealing and every-

thing," when he answered the phone in

Perlman'‘s jewelry store. Collins

included this to show Delmonico's

disregard for the law, but Collins

doesn't fully disclose the surrounding

circumstances that existed when

Delmonico said this. In fact, Delmonico

was joking with Perlman about his glum

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manner in answering the phone. Sgt.

Collins took these joking words out of

context instead of presenting the full

picture to Judge Kaye. (See transcript

of hearing, pp. 64-70).

Next, when intercepting conversa-

tions between Perlman and Delmonico

concerning the price they sold goods

for, and the amount of profits they

earned, Collins concludes in his affi-

davit that these discussions indicated

that stolen goods were being dealt in,

without giving any real explanation to

support his conclusions and interpreta-

tions. (See transcript, pp. 74-81).

For example, it appears that Collins has

editorialized the use of the word

"score" in intercepting the discus-

sions. On examination, Collins admits

that a large profit alone would not show

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an item was stolen and admits that a

large profit alone would not show an

item was stolen and admits that some of

his conclusions may be unfounded.

Collins also concludes that Delmonico

indicated he had control over Perlman,

while another interpretation may have

been that Delmonico was counseling

Perlman on effective retail sales

techniques. (Tr. p. 79).

Next the affidavits omitted the

fact that Distillator, who Wolcoff

allegedly extorted money from, is a

“junkie and a thief," and that Wolcoff

had threatened to call Distillator's

probation officer (Tr. pp.127-136).

They also omit the fact that Delmonico,

Eber and Rizzieri are all laughing and

joking when talking about "oiling the

guns." (Tr. pp. 136-148). The affiant

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further fails to tell the judge that he

is using the same facts to support his

August llth application as he used for

earlier applications. (See Tr. pp. 149-

501).

Sgt. Collins also omits the fact

that Delmonico, at one point in a

conversation with Eber, turned down a

deal to get stolen safe deposit box keys

(fe. m. 167). He also admits that

Delmonico told Eber to get a lawyer and

go to the State Attorney's Office to

file charges against Perlman for

bouncing a $10,000 check (Tr. pp. 194-

204).

Lastly, Collins failed to disclose

to Judge Kaye that he was paying Perlman

about $18,000 to cooperate with the

police, a fact which seriously questions

Perlman's credibility and reliability as

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a confidential informant (Tr. pp. 211l-

214).

When taken together, these omis-

sions and unfounded conclusions were

material and essential to the finding of

probable cause. The judge should have

been presented with all the facts in the

application and affidavits and _ been

allowed to draw his own conclusions.

Since the court rules that all of

the applications, including the original

of June 10, 1982, standing alone lack

probable cause, it is unnecessary to

determine whether the subsequent

applications could have been validated

by “tacking" them onto the original June

10th application. Most likely, they

could not have been so validated. See

Bagley v. State, 397 So.2d 1036 (5 DCA

1981).

A-32

NECESSITY

In addition to probable: cause,there

is an exhaustion requirement under

§934.09(1)(c) that requires an applica-

tion for a wiretap order to include a

complete statement as to whether other

investigative techniques have been tried

and/or why they reasonably appear to be

unlikely to succeed if tried, or to be

too dangerous. See State v. Weedon, 425

So.2d 125 (4 DCA 1982). In this case,

the affiant failed to satisfy this

procedural exhaustion requirement in the

August 18 application. Sgt. Collins

failed to state other investigative

techniques that could have been used

(See Tr. pp. 188-194).

This exhaustion requirement is

substantive, as well as procedural. The

judge must make a determination that

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normal investigative techniques have

been tried and failed, or reasonably

appear to be unlikely to succeed if

tried, or to be too dangerous $934.09(3)

(c). In this case, the affiants have

both failed to prove that prior normal

investigative techniques they used have

failed, and that the future use of more

normal investigative techniques would

fail. This ground, in and of itself,

requires suppression.

Even without the wiretaps, the

police gained extensive information on

the alleged stolen property activities

of the Defendants. Moshe’ Perlman

cooperated fully with the police. He

let them set him up in his own jewelry

store for the the sole purpose of

gathering evidence against Delmonico.

Perlman consented to wear body bugs,

A-34

have electronic easedropping equipment

placed in the store, and to have the

phone in his jewelry store wiretapped.

The police gathered a great deal of

evidence from Perlman's cooperation (See

Tr. pp. 215-227).

Further, the Miami Beach Police had

extensive surveillance of Delmonico for

a long time as did the OCB at a later

time. During the period of the

wiretaps, the police accumulated eighty

(80) pages of surveillance reports (see

Tr. om~. 238),

In this case, there was simply no

need for a wiretap. As was established

during the hearing on the Motion to

Suppress, the State's investigation of

the alleged stolen property organization

was progressing successfully. The real

motivation of the State was to conduct

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intelligence gathering with regards to

Defendant, Delmonico, and his suspected

underworld connections. As of May,

1982, the State had ample evidence to

arrest and prosecute those individuals,

who were involved in the alleged stolen

property ring.

The State has failed to show why

continued and more extensive surveill-

ance of Delmonico would be unsuccessful

and have thus failed to prove they

couldn't have made a case by using

other, normal investigative techniques

without resorting to court ordered

wiretaps. They have thus failed to meet

the necessity requirements of §934.09.

THE BODY BUG ISSUE

Lastly, the evidence of the body

bug placed on the informant, Distil-

A-36

lator, which was used to listen to

conversations in Delmonico's house, and

the testimony derived therefrom, must be

suppressed. Although there was a signed

order, dated August 18, 1982, autho-

rizing the body bug, the application

contained several defects in that it was

not signed by the elected State

Attorney, was silent regarding alter-

native investigative techniques, and did

not provide for automatic termination.

See §934.09 Florida Statutes. This

evidence thus must be suppressed under

the authority of Sarmiento v. State, 397

So.2d 643 (Fla. 1981), and Article I,

Section 12, of the Florida Consti-

tution. The constitutional amendment to

Article I, Sec. 12 of the Florida

Constitution (approved in 1983) cannot

be applied retroactively. State v.

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Lavazzoli, 434 So.2d 321, 323 (Fla.

1983).

In conclusion, the Court finds that

it must suppress all evidence of all

electronic surveillance pursuant to the

applications of June 10, 1982, and all

subsequent applications in this case, as

well as all testimony derived from such

evidence. When taken in its totality,

the police did not adhere to the strict

requirements of Ch. 934 in this investi-

gation. They failed to demonstrate

sufficient probable cause and necessity

to justify the intrusive use of wiretaps

in the stolen property investigation

which is at issue here.

Perhaps he greatest intrusion to a

citizen's constitutionally protected

right to privacy is the interception of

his private lives of our citizens.

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In light of the about Findings of

Fact and Conclusions of Law, it is

hereby

ORDERED AND ADJUDGED- that the

Motions to Suppress are hereby granted.

DONE AND ORDERED at Miami, Florida,

this 20 day of December, 1985.

D.BRUCE LEVY

CIRCUIT COURT JUDGE