# Petition for Writ of Certiorari — Florida v. Eber > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0784%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 897 ## Text 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 A-20 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 A-21 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. A-22 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 A-23 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 A-24 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 A-25 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, A-27 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 A-28 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 A-29 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 A-30 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 A-31 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 A-33 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 A-35 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. A-37 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. A-38 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0784%3A1. Public record. Not legal advice.