CopyCited 236 times | Published | Court of Appeals for the Eleventh Circuit
...omplete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous” — a requirement common to the Florida and federal statutes. § 934.09(l)(c), Fla.Stats.; 18 U.S.C....
CopyCited 99 times | Published | Court of Appeals for the Eleventh Circuit | 1986 U.S. App. LEXIS 24069
...requirement imposed by federal and Florida statutes that the application contain a complete statement about why alternative investigative procedures have been unsuccessful, or would be futile or too dangerous.
742 F.2d at 1347-48 ; see Fla.Stat.Ann. §
934.09(l)(c) (West 1973); 18 U.S.C....
CopyCited 85 times | Published | Court of Appeals for the Eleventh Circuit | 2004 U.S. App. LEXIS 1858, 2004 WL 225538
...Florida’s wiretap scheme, and thus should be suppressed; (8) that during the
wiretaps, law enforcement officials failed to minimize the recordings of
conversations not otherwise subject to the interception authorization, as required
by Florida Statute § 934.09(5) (1997); and (9) that the county detectives had not
met the elements of Florida Statute § 934.09(1)(c) (1997), requiring that they
demonstrate that they had tried other reasonable investigative procedures before
applying for electronic surveillance....
CopyCited 36 times | Published | Supreme Court of Florida | 1989 WL 120852
...[13] We add that there is no statutory requirement for the making of periodic reports relative to pen register operation; however, the issuing court may require periodic reports in connection with the interception of wire, oral, or electronic communication. § 934.09(6), Fla....
CopyCited 36 times | Published | Court of Appeals for the Eleventh Circuit | 1985 U.S. App. LEXIS 28158
...equirement imposed by federal and Florida statutes that the application contain a complete statement about why alternative investigative procedures have been unsuccessful, or would be futile or too dangerous.
742 F.2d at 1347-48 ; see Fla. Stat.Ann. §
934.09(l)(c) (West 1973); 18 U.S.C....
CopyCited 31 times | Published | District Court, S.D. Florida | 1983 U.S. Dist. LEXIS 19258
...not an attack on the affiant's veracity but rather is merely a facial attack on the affidavit. See Franks v. Delaware, supra. Defendants Jernigan and Harvey, among others, argue that there was insufficient probable cause in accordance with Fla.Stat. § 934.09(3) to issue the order....
...Hyde,
574 F.2d 856, 865 (5th Cir.1978). 2. Lack of Necessity. Defendant Jernigan contends that the application fails to adequately demonstrate the necessity for wiretapping as opposed to less invasive investigatory procedures as required by Fla.Stat. §
934.09(3)....
CopyCited 28 times | Published | Supreme Court of Florida
...should have been suppressed for failure to conduct the tapping in such manner as would minimize interception of telephone conversations not within the scope of the intent of F.S. Ch. 934, F.S.A. We deal with these issues in turn. PROBABLE CAUSE F.S. § 934.09, F.S.A....
...provides the procedure under which a wiretap order may be issued; subsection (1)(b) requires a full and complete statement of the facts and circumstances relied upon to justify the applicant's belief that an order should be issued, including a number of particular required details. § 934.09(3) sets forth the matters which the judge must find to exist on the basis of the facts submitted by the applicant before a wiretap order can be issued....
...uance of a wiretap order must be determined from a reading of the affidavit as a whole, not from bits and pieces read in isolation. We have thoroughly examined the affidavit involved here to determine its sufficiency in meeting the standards of F.S. § 934.09(3), F.S.A. After most carefully weighing its contents, we are impelled to conclude that the affidavit is insufficient due principally to "staleness." As can be readily seen from an examination of § 934.09(3), one of the matters which must be shown sufficiently to establish probable cause for belief is that the offense in question is being committed or is about to be committed and that the phones sought to be tapped are being used or are about to be used in connection with the commission of such offense. F.S. § 934.09(3)(a) and (b), F.S.A....
...While this recitation of facts indicates grounds for suspicion that Rodriguez was involved in a gambling operation using these telephones, the facts *18 shown are not sufficient to raise this suspicion to the level of probable cause to believe that the offense was still being committed or was about to be committed (§ 934.09(3)(a)) and that the telephones were still being used or were about to be used in the commission of the offense as compelled by § 934.09(3)(d)....
...The most generous construction we could place on this affidavit would be that it showed probable cause that the offense had been committed at some prior time or times and that it showed grounds for suspicion that it might still be continuing. Mere suspicion is insufficient to authorize issuance of a wiretap order; § 934.09 specifically requires a finding of probable cause....
...man in believing party is guilty of offense charged"; more generally, probable cause is there defined as, "A reasonable ground for belief in the existence of facts warranting the proceedings complained of." In the context of the requirements of F.S. §
934.09(3), F.S.A., this may be stated as reasonable grounds for belief that the party whose communications are to be intercepted is committing or is about to commit one of the offenses enumerated in §
934.07; that particular communications concer...
...n illegal lottery. This is not a present fact which would sustain a finding of timeliness sufficient to establish probable cause for issuance of the wiretap order. MINIMIZATION We turn now to the issue of minimization requirements of a wiretap. F.S. § 934.09(5), F.S.A....
...our own examination of this voluminous record does not reveal any other attempts at minimization. This is not a sufficient compliance with the statutory mandate incorporated into the authorizing order. Although the wiretap minimization provision of § 934.09(5) has apparently never been construed by the courts of this State, we note that, with the exception of one comma, the above-quoted section is identical to 18 U.S.Code § 2518(5)....
CopyCited 24 times | Published | Court of Appeals for the Eleventh Circuit | 1991 U.S. App. LEXIS 1180
...ted procedures or certain prior state court procedures. In this case, the officers followed a state court procedure with virtually identical standards as those found in the federal procedure and any resulting error was harmless. B. Probable Cause 28 Section 934.09(3)(a), Florida Statutes, requires that issuance of an order authorizing the interception of wire or oral communications be predicated on a judicial finding of "probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in s....
...e communications must include "[a] full and complete statement as to whether or not other investigative procedures had been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Fla.Stat.Ann. Sec. 934.09(1)(c) (West....
...rst interception of a communication of the type sought, the application must contain "a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter." Fla.Stat.Ann. Sec. 934.09(1)(d) (West Supp.1990); 18 U.S.C....
...pocket pager does not require a court order) 3 Wiretap applications must contain a "full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued...." Fla.Stat.Ann. Sec. 934.09(1)(b) (West Supp.1990); 18 U.S.C....
CopyCited 21 times | Published | Supreme Court of Florida
...d jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter." (Emphasis supplied.) F.S. § 934.09(9)(a), F.S.A., provides as follows: " Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority may move to suppress the contents of any intercepted wi...
...§
934.06, F.S.A., supra, the disclosure of any information derived therefrom in violation of Chapter 934 should not be received by a grand jury, but, nevertheless, concluded that the movant had no standing as a witness (called to testify before the grand jury) to move to suppress such violative information because F.S. §
934.09(9)(a), F.S.A., supra, did not include the words "grand jury"....
...tes Congress' Omnibus Crime Control and Safe Streets Act. The District Court's conclusion, however, overlooks several factors. First, our *46 Legislature in 1969 could have simply through inadvertence failed to include the words "grand jury" in F.S. § 934.09(9)(a), F.S.A., supra....
...Notwithstanding our conclusion on this singular issue, another point remains *47 patently clear. If as per the District Court of Appeal's conclusion, F.S. §
934.06, F.S.A., supra, that no unauthorized wiretap information is to be received by a grand jury, but F.S. §
934.09(9)(a), F.S.A., supra, does not permit an aggrieved person to question it prior to indictment or information, then who supervises the plain intent and meaning of F.S....
...Petitioners were subpoenaed by the grand jury as witnesses, and at this stage of the proceeding they filed in the Circuit Court of Volusia County motions to suppress evidence. The subject motions alleged that petitioners were `aggrieved' persons within the purview of Section 934.09, Florida Statutes; that the orders of authorization and approval under which the wire and oral communications were intercepted were not properly issued; the communications were unlawfully intercepted in that they were not in conformity...
...`1. The communication was unlawfully intercepted; `2. The order of authorization or approval under which it was intercepted is insufficient on its face; or `3. The interception was not made in conformity with the order of authorization or approval. [Section 934.09(9)(a)] "A careful examination of the two foregoing sections of the statute makes it clearly apparent that no intercepted wire or oral communication illegally obtained contrary to the provisions of the act may be received in evidence in...
...the public welfare." *52 In Kennedy, of course, this Court simply held that the State Constitution did not preclude any Justice of this Court from issuing an order for the interception of wire and oral communications, pursuant to Sections
934.02 and
934.09, Florida Statutes, 1971, F.S.A....
...helming weight of authority, the majority, however, replies: "The District Court's conclusion, however, overlooks several factors. First, our Legislature in 1969 could have simply through inadvertance failed to include the words `grand jury' in F.S. § 934.09(9)(a), F.S.A....
CopyCited 14 times | Published | Florida 1st District Court of Appeal
...ourt, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter." Florida Statute 934.09(8), F.S.A....
...The State further contends that we erred in holding that evidence illegally obtained contrary to the provisions of Chapter 934 Florida Statutes is not admissible in evidence. In that regard, we point out that it was not necessary for us to so hold. The legislature made that determination. (F.S.
934.06; F.S.
934.09(8)) Further, the Supreme Court of Florida has already so interpreted Chapter 934 Florida Statutes....
CopyCited 12 times | Published | Supreme Court of Florida | 1995 WL 48439
...LECTRONIC 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....
...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)....
...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....
...munications. [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....
...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....
...pager with a duplicate digital display pager is more intrusive than using a pen register or a trap-and-trace device. We therefore hold that any communication via a pager other than a tone-only pager requires a wiretap order under sections
934.07 and
934.09....
...ers), or electronic (all other types pagers except tone-only paging devices) communications. Strict construction of the statute requires that interception of these transmissions be made under the stringent procedures set forth in sections
934.07 and
934.09, Florida Statutes (1991)....
...Although we do not agree with the district court's *29 conclusion that information transmitted to a duplicate display pager constitutes an electronic communication, we find that the information is a communication subject to the wiretap procedures in sections
934.07 and
934.09....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 1988 WL 26257
...evidence of current criminal activity, i.e., that the suspected bookmaking offenses were being committed or were about to be committed, and that the telephones were being used or were about to be used in connection with these offenses as required by section 934.09(3)(a), Florida Statutes (1983)....
...ved, and, therefore, that the affidavits were not stale. D. Necessity The appellants additionally allege that the affidavits in support of the Mart wiretap application were fatally defective because they failed to meet the "necessity" requirement of section 934.09(1)(c), Florida Statutes (1983)....
...zed. United States v. Pacheco,
489 F.2d 554, 565 (5th Cir.1974), cert. denied,
421 U.S. 909,
95 S.Ct. 1558,
43 L.Ed.2d 774 (1975). If wiretapping appears to be the most reasonable investigative technique to secure evidence of criminal activity, then section
934.09(1)(c) is satisfied. Covello v. State,
462 So.2d 1206 (Fla. 4th DCA 1985). See Zuppardi v. State,
367 So.2d 601 (Fla. 1978) (affidavits satisfied section
934.09(1)(c) where they explained that bookmaking suspects were known to transact business only with members of country club, that suspects communicated only in codes, and that informants were unwilling to assist in the investigation due to fear of physical danger)....
...Kalustian,
529 F.2d 585 (9th Cir.1975) (error to deny appellants' motion to suppress electronic surveillance evidence where wiretap application failed to show why traditional investigative techniques were not viable alternatives). [16] We find that the affidavits fulfilled the necessity requirement of section
934.09(1)(c) by stating that normal investigative techniques had been tried and that other traditional avenues of investigation were not likely to succeed....
...o the occupants of the premises, Rodriguez v. State,
420 So.2d 655 (Fla. 3d DCA 1982), rev. denied,
429 So.2d 7 (Fla. 1983), we find that in the instant case the affidavits established in sufficient detail activities consistent with bookmaking. [14] Section
934.09, Florida Statutes (1983), provides in relevant part: (3) Upon such application, the judge may enter an ex parte order ......
...authorizing or approving interception of wire or oral communications ... if the judge determines on the basis of the facts submitted by the applicant that: (a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in s.
934.07. §
934.09(3)(a), Fla. Stat. (1983). [15] The necessity requirement of section
934.09 is set forth as follows:
934.09 Procedure for interception of wire or oral communications....
...Each application shall include the following information: * * * * * * (c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. § 934.09(1)(c), Fla....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal
...sequent to the denial of her motion to suppress evidence obtained through a court-ordered wiretap. Hudson contends that the trial court should have suppressed the tape recordings and transcripts obtained through the court-ordered wiretap pursuant to Section 934.09, Florida Statutes (1975) on the grounds of (1) lack of probable cause and staleness, (2) omissions and misrepresentations in the affidavit of application, (3) failure to demonstrate that other investigative techniques had failed or would be unlikely to succeed, *901 (4) nonrecognition of an authorized object under Section 934.09(5), Florida Statutes (1975), (5) lack of proper description of the communications to be intercepted, and (6) deficiencies in the intercept order....
...uling. McNamara v. State,
357 So.2d 410 (Fla. 1978). We turn now to the first ground that the affidavit submitted in support of the application was insufficient as a matter of law to give rise to probable cause. Before a wiretap order can be issued, Section
934.09(3), Florida Statutes requires that the judge based upon the facts submitted by the applicant must find the existence of probable cause to believe that (1) an individual is committing, has committed or is about to commit an offense enum...
...or are about to be used in connection with the commission of such offense or are leased to, listed in the name of or commonly used by such person. Rodriguez v. State,
297 So.2d 15, 17 (Fla. 1974). Probable cause in the context of the requirements of Section
934.09(3), Florida Statutes (1975) has been defined by the Supreme Court in Rodriguez v....
...alid. See Stipp v. State,
355 So.2d 1217, 1219 (Fla. 4th DCA 1978). Hudson's third ground for her motion to suppress is that the application was deficient in providing a full and complete statement about other investigative techniques as required by Section
934.09(1)(c), Florida Statutes (1975)....
...her normal investigation was not likely to succeed. Cf. United States v. DiMuro,
540 F.2d 503, 511 (1st Cir.1976). We next considered the fourth ground that the wiretap authorization was invalid because it did not meet the specificity requirement of Section
934.09(5), Florida Statutes (1975) and was not sufficiently limited in purpose....
...Cohen,
530 F.2d 43, 46 (5th Cir.1976), supra, and cf. United States v. Steinberg,
525 F.2d 1126, 1131-32 (2nd Cir.1975). Closely related to the preceding is the fifth ground for reversal that the wiretap order lacked a proper description of the communications to be intercepted as required by Section
934.09(1)(b) and (5), Florida Statutes (1975)....
...In my view, the wiretap evidence obtained by the police was unreasonably seized in violation of the defendant's rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution, Article I, Section 12, of the Florida Constitution and Sections 934.09(3), (4), Florida Statutes (1977), and should have been suppressed....
...ed are being used or about to be used in connection with the commission of such offense. Mere suspicion of current criminal activity or probable cause solely as to past criminal activity is insufficient. Rodriguez v. State,
297 So.2d 15 (Fla. 1974); §
934.09(3), Fla....
...except upon probable cause, supported by affidavit, particularly describing ... the communication to be intercepted, and the nature of the evidence to be obtained." See Tollett v. State,
272 So.2d 490, 492-93 (Fla. 1973). It is finally prohibited by Section
934.09(4)(c), Florida Statutes (1977), which requires that wiretap orders must *906 contain "[a] particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates." As such, the wiretap order is clearly invalid....
...iretap order herein. These facts, however, were neither included in the wiretap affidavit nor otherwise presented to the issuing magistrate. As such, these facts can form no part of the alleged probable cause for the issuance of the wiretap order. §§ 934.09(1), (2), (3), Fla....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2 Media L. Rep. (BNA) 1240
...t, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter." On the other hand, Section
934.09(9)(a), Florida Statutes (1973) provides that any "aggrieved person" may move to suppress an unlawful intercept, and Section
934.02(9), Florida Statutes (1973) defines an "aggrieved person" as "a person who was a party to any intercepte...
...Moreover, in Alderman,
394 U.S. at 175, n. 9,
89 S.Ct. at 968, the Court held that `"aggrieved person" . . should be construed in accordance with existent standing rules'." Since the defendant in its brief concedes that its contention of standing does not derive from Section
934.09(9)(a), Florida Statutes, our discussion of this point could stop here....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 1998 WL 653600
...McCormick and Jerome Mitchell. We reverse. THE FACTS Detective Ronald King of the Melbourne Police Department filed an application and affidavit seeking authorization to intercept and record oral and wire communications under subsections
934.07 and
934.09(1)(a), Florida Statutes....
...and authorization order. However, we find no violation which would alternatively furnish a basis for suppression here. Detective King followed the circuit judge's instructions regarding sealing and custody of the tapes, thus complying with paragraph 934.09(7)(a), Florida Statutes....
...[3] This paragraph provides in part: "Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his or her directions. Custody of the recordings shall be wherever the judge orders." § 934.09(7)(a), Fla....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal
...o interception at one time or another. Appellants suggest that the applications for these other authorizations, and extensions thereof, were merely "piggybacked" upon one another, were boilerplate in nature, and did not meet the standards set out in Section 934.09(1)(c), Florida Statutes (1977), concerning the exhaustion of normal investigative techniques....
...In this setting of an expanding investigation uncovering continually widening segments of a large illegal operation, the Cuba test for valid "piggybacking" was met. The alleged lack of exhaustion of normal investigative techniques presents a different question. Section 934.09(1)(c), Florida Statutes (1977), requires inclusion in an application of "[a] full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to suc...
CopyCited 9 times | Published | Florida 2nd District Court of Appeal
...ntercepted. To intercept is to take or seize by the way, or before arrival at the destined place; to stop or interrupt the progress or course of. Webster's New International Dictionary (2d Ed. unabridged) [7] Chapter 934 contains the same provision. § 934.09(7)(a), Fla....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal
...one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act." See also State v. Napoli,
373 So.2d 933 (Fla. 4th DCA 1979) (holding that the custody and seal provisions of Section
934.09 do not apply to consent interceptions which require no judicial authorization)....
CopyCited 8 times | Published | Florida 5th District Court of Appeal
...We find that the supplement and amendment to the original affidavit is insufficient on its face. The fact that the original valid affidavit was incorporated by reference, and thus "tacked" onto the subsequent affidavit, *1038 cannot cure the insufficiency. Wilson v. State,
377 So.2d 237 (Fla.2d DCA 1979). Both section
934.09(1), Florida Statutes (1979), and its federal counterpart, 18 U.S.C. § 2518(1), state that " [e]ach application for an order ... shall include the following ... ." (emphasis added). Section
934.09(1)(a)-(f) then sets forth the procedural requirements for an application for an order authorizing a wire tap....
...nterception of wire and oral communications." United States v. Giordano,
416 U.S. 505, 513,
94 S.Ct. 1820, 1827,
40 L.Ed.2d 341 (1974). While the original affidavit and application are sufficient in all aspects, the amendment, however, is deficient. Section
934.09(1)(c), Florida Statutes (1979), requires "A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too danger...
CopyCited 7 times | Published | Florida 2nd District Court of Appeal
...on its face and that the insufficiencies cannot be cured by "tacking" on the original valid affidavit by reference. Appellant's argument is correct inasmuch as the supplement and amendment fails to comply with the procedural requirements set out in Section 934.09(1)(c), Fla....
...State, 34 Md. App. 365, 367 A.2d 40 (1977). As we noted above, there is no question but that the original affidavit and application are sufficient in all respects. The problem we must resolve occurs in the supplement and amendment to the application. Section 934.09(1)(c), Florida Statutes, requires "A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." [...
...ination of such criminal lottery activities. Id. at 32. We cannot agree with our sister court that "common knowledge" of the difficulties involved in a case relieve the State from the strict requirements of state and federal wiretap procedures. Both § 934.09(1), Florida Statutes, and 18 U.S.C....
...onal wiretap order be set out with specificity. See Ward v. State, 40 Md. App. 410, 392 A.2d 559 (1978). In summary, we hold that the Supplement and Amendment to Affidavit for Application dated March 21, 1977 does not comply with the requirements of Section 934.09(1)(c), Fla....
CopyCited 6 times | Published | Supreme Court of Florida | 2004 WL 2251849
...prosecution and was sentenced accordingly." Fratello,
835 So.2d at 313 n. 1. [2] To obtain an order authorizing a communications intercept, the State must file a sworn application providing detailed information in accordance with the requirements of section
934.09(1), Florida Statutes (1999)....
...d; (3) that normal investigative procedures have been tried and failed or reasonably appear unlikely to succeed or are too dangerous; and (4) that the place where the intercept will occur is being used in connection with the commission of the crime. 934.09(3), Fla. Stat. (1999). Under section 934.09(4), the authorizing order must be very specific....
CopyCited 6 times | Published | Florida 5th District Court of Appeal
...Appellant contends (1) the wiretap order was illegal because the information upon which it was based was both illegally obtained and stale; (2) the evidence obtained by the wiretap was inadmissible in evidence because appellant did not receive notice of the wiretap within the ninety day period provided by section 934.09(7)(e), Florida Statutes (1977); (3) that the indications by the drug dog were not sufficient probable cause for either his arrest or for the issuance of a search warrant for his vehicle; and (4) that the evidence is legally insufficien...
...State,
297 So.2d 15 (Fla. 1974); Hudson v. State,
368 So.2d 899 (Fla. 3d DCA 1979); State v. Manning,
379 So.2d 1307 (Fla. 4th DCA 1980). Appellant has demonstrated no prejudice accruing to him by reason of the delayed service of notice of the wiretap required by section
934.09(7)(e), Florida Statutes (1977)....
CopyCited 6 times | Published | District Court, M.D. Florida | 2003 U.S. Dist. LEXIS 2496, 2003 WL 403071
...§
934.07; (b) particular communications concerning that offense will be obtained through such interception; and (c) the facilities where the oral communications are to be intercepted are to be used or have been used in the commission of such an offense. See FLA. STAT. §
934.09(3)(a), (b), and (d)....
...pect). Because Franks requires me to modify the applications in light of these findings, the issue is whether either revised extension application supplies probable cause and otherwise meets Florida's surveillance scheme. [75] Pursuant to FLA. STAT. § 934.09(5) (1997), an application to extend an intercept must meet the requirements of § 934.09(1) and (3)....
...§ 2518(5); United States v. Giordano,
416 U.S. 505, 532-33,
94 S.Ct. 1820,
40 L.Ed.2d 341 (1974). [76] After redacting and modifying the challenged paragraphs of the extension applications per my Franks findings, I conclude the authorizations are invalid. As required by §
934.09(1), the revised applications do not support probable cause to believe one or both of the Defendants are *1348 committing, have committed, or will commit murder, the only targeted offense permissible under FLA....
...specific offenses. See FLA. STAT. §
934.07 (1997). The applicant must set out a full and complete statement of the facts and circumstances justifying his or her belief the enumerated crime has been, is being, or is about to be committed. FLA. STAT. §
934.09(1)(b)(1)....
...A judge must then find probable cause exists not only to believe that an individual is committing, has committed, or is about to commit an enumerated offense, but also that communications concerning such an offense will be obtained through the interception. FLA. STAT. § 934.09(3)(a) and (b)....
...But it neglects to admit the affiants never proposed such a theory in their applications. Their applications are devoid of any details suggesting how the particular offense of felony-murder "has been, is being, or is about to be committed." FLA. STAT. § 934.09(1)(b)(1)....
...These actions were not minor technical mistakes; limiting intercepts to prescribed offenses goes to the heart of the surveillance statute. C. Non-listed offenses The starting place for any analysis begins with the statute giving an "aggrieved party" the right to seek relief. FLA. STAT. § 934.09(9)(a) (1997) provides in pertinent part as follows: Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority may move to suppress the contents of any...
...1849,
40 L.Ed.2d 380 (1974); and United States v. Donovan,
429 U.S. 413,
97 S.Ct. 658,
50 L.Ed.2d 652 (1977). Two essential themes emerge from these decisions as they relate to this case. First, subsection (ii) (and therefore its state corollary, FLA. STAT. §
934.09(9)(a)(2) (1997)) is limited to those instances where the order on its face is deficient. Giordano,
416 U.S. at 526 n. 14,
94 S.Ct. 1820. Namely, the order omits some statutory requirement. Second, the term "unlawfully intercepted" as used in subsection § 2518(10)(a)(i) (and its state counterpart, FLA. STAT. §
934.09(9)(a)(1) (1997)) does not mean all violations of the wiretap scheme require suppression....
...ion is invalid under § 2518(10)(a)(i) because an Executive Assistant to the Attorney General authorized the application without the appropriate designation of authority). Because the orders are not invalid on their face, the Defendants must look to §
934.09(9)(a)(1) for relief by demonstrating the communications were unlawfully intercepted. That is to say, the Defendants must show §§
934.07 and
934.09(3)(a), the statutory requirements violated, occupy "a central, or even functional, role in guarding against unwarranted use of wiretapping or electronic surveillance." Chavez, 416 U.S....
...See 18 U.S.C. § 2517(4); FLA. STAT. §
934.08(4) (1997). Following Title III, Florida requires authorization orders instruct monitors to minimize the interception of conversations not otherwise subject to interception under the statute. FLA. STAT. §
934.09(5) (1997); 18 U.S.C....
...ge is governed by Fed.R.Evid. 501. United States v. Mathis,
96 F.3d 1577, 1583-84 (11th Cir.1996); United States v. Malekzadeh,
855 F.2d 1492,1496 (11th Cir.1988). E. Investigative Need Lastly, the Defendants contend the affiants violated FLA. STAT. §
934.09(1)(c) (1997) by applying for the intercept too soon....
...Because the investigation was only eighteen days old, the Defendants reason, the state had not given enough time for traditional investigative methods to work. The Defendants, however, do not specifically identify what authorities should have done short of acquiring the intercept. Section 934.09(1)(c) mirrors 18 U.S.C....
...I can think of no other local investigation in the past several years which has commanded such dedicated and laudatory efforts by so many agencies. The difficulty is that the government seeks to equate the efforts to find the child with the efforts to satisfy its obligation under § 934.09(1)(c) and 18 U.S.C....
...By December 12, law enforcement had dedicated most of its effort to looking for the infant and tracing all potential leads as to her whereabouts. They had not done some of the basic detective work for building a case against the Defendants for the crimes outlined in the application. *1357 Adherence to FLA. STAT. § 934.09(1)(c) and 18 U.S.C....
...Had they unveiled all this to him, he likely would have reviewed the application in a different light. Judge Alvarez, unaware, had to fulfill his responsibilities in a vacuum of information. After considering the respective arguments, I find the initial application did not meet the requirements of FLA. STAT. § 934.09(1)(c) (1997)....
...Homicide is defined as the killing of one person by another; thus, not every homicide is a murder or even a criminal act. See Black's Law Dictionary 739 (7th ed.1999). Florida statutorily recognizes this distinction. See Fla. Stat. ch. 782 (1997). Thus, §
934.09(3)(a) limits intercepts for the most serious criminal homicidemurder (and its varying degrees) as outlined in §
782.04. Intercepts for other types of criminal homicides, like manslaughter, are not authorized under Florida's wiretap scheme. The Defendants concede "homicide" means "murder" for purposes of §§
934.09(3)(a) and
934.07 in this case. [78] Admittedly, the Defendants do not specifically cite in their papers §
934.09(9)(a)(1) or 18 U.S.C....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...Blackburn,
97 So.2d 247 (Fla. 1957))" (356 So.2d at page 71) Turning now to appellants' second point, [8] they contend that the trial judge erred in finding that other investigative techniques were tried and failed or reasonably appeared to be unlikely to succeed if tried. F.S.
934.09 sets forth the procedure for interception of wire or oral communications in Florida....
...27.181(3), above quoted, assistant state attorneys are entitled to authorize an application for an order authorizing or approving the interception of wire or oral communications, observing: "* * * Of course, this authorization only puts in motion the procedure to obtain such authority from a judicial officer pursuant to Section
934.09 Florida Statutes, and it is assumed that any judicial officer will comply with the requirements of chapter 934 before he permits the interception of any such communication." (261 So.2d at page 200) In Mitchell v. State,
381 So.2d 1066 (Fla. 1st DCA 1979), Chief Judge McCord, writing for this court, speaking of an application for a postponement of serving of inventories pursuant to F.S.
934.09(7)(e), said: "Appellant's contention is that because the application for extension was authorized by an assistant state attorney rather than the state attorney, it is invalid....
...Pacheco,
489 F.2d 554 (5th Cir.1975). [11] State v. Barnett,
354 So.2d 422 (Fla. 2nd DCA 1978), and authorities therein cited. [12] For a case involving the same wiretap denying a motion to suppress because of delay in service of the post-interception inventory required by F.S.
934.09 see Hicks v....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...Brainard, supra . Appellants' contention that the police failed to pursue other investigative practices is refuted by the application affidavit for wiretap one. The showing that normal investigative techniques have failed or are unlikely to succeed, required by section 934.09(1)(c), Florida Statutes (1975), is made if wiretapping appears to be the most reasonable investigative technique under the circumstances to secure other and conclusive evidence of criminal involvement....
...eptions. See United States v. Giordano,
416 U.S. 505,
94 S.Ct. 1820,
40 L.Ed.2d 341 (1974). Appellants' argument that remand is necessary for a hearing by the trial court concerning the issue of nonminimization of the interception of communications, section
934.09(5), Florida Statutes (1975), *14 must also fail....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...state constitutional right of privacy. In re Grand Jury Investigation,
287 So.2d 43 (Fla. 1973). As such, they must be strictly construed. Id. Appellant contends here that the application did not comport with the requirements of sections
934.07 and
934.09(1)(c) and that the order did not satisfy the requirements of sections
934.09(3)(c) and (4)(e)....
...Appellee's brief, p. 2. It is settled, of course, that section
934.07 does not empower an assistant state attorney to authorize an application for the interception of wire or oral communications. State v. Daniels,
389 So.2d 631 (Fla. 1980). Sections
934.09(1)(c) and (3)(c) read:
934.09 Procedure for Interception of Wire or Oral Communications....
...hat: ... . (c) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; ... . (Emphasis added.) The state admits that the application did not indicate pursuant to section
934.09(1)(c) whether law enforcement officials tried normal investigative procedures which failed or why such procedures reasonably appeared either to be unlikely to succeed or to be too dangerous if tried. Appellee's brief, p. 2. There is no question but that such silence is fatal to the validity of an application. Wilson v. State,
377 So.2d 237 (Fla. 2d DCA 1979). Given that the application did not comply with section
934.09(1)(c), it necessarily follows that the issuing court was precluded from issuing an intercept order: section
934.09(3)(c) unequivocally requires that a court, before issuing an order, determine on the basis of the facts submitted in the application that normal investigative procedures have been tried and failed or reasonably appeared to be unlikely to succeed if tried or to be too dangerous. Lastly, section
934.09(4)(e) states: (4) Each order authorizing or approving the interception of any wire or oral communication shall specify: ......
...(Emphasis added.) The issuing court, while specifying in the order that the order would remain in effect for the 30-day statutory maximum, [2] failed to state therein whether it would automatically terminate when the described communication had been first obtained. We construe section 934.09(4)(e) to mean that an issuing court may allow in the order for a continued interception after the desired communication has been first obtained if the application, pursuant to section 934.09(1)(d), includes a particular description of facts establishing probable cause to believe that, after the described type of communication has been first obtained, additional communications of the same type will occur....
...In this case, the application did not contain such a description. Thus, the issuing court had no choice but to state in the order that the order would automatically terminate when the desired communication had been first obtained. Of course, the court failed to so state. The purpose of the requirement in section 934.09(4)(e) that the issuing court indicate in the order whether the order shall automatically terminate when the desired conversation has been first seized is to prevent a "general search" in violation of the fourth and fourteenth amendments to the federal constitution and article I, section 12 of the Florida Constitution. Where, as here, the application does not, pursuant to section 934.09(1)(d), contain a particular description of facts establishing probable cause to believe that, after the described type of communication has been first obtained, additional communications of the same type will occur, the inclusion within the order of a statement pursuant to section 934.09(4)(e) that the order shall automatically terminate once the described type of communication has been obtained ensures that, once the described type of communication has been seized, executing officers are not free to continue intercepting conversations until the expiration of the 30-day period....
...ry of persons described in section
934.03(2)(c) ( e.g., an undercover police officer or informant), as here, the constitutional requirements for a search warrant need be satisfied, but the other procedures of chapter 934, such as sections
934.07 and
934.09, need not be....
...NOTES [1] See §§
934.01, et seq., Fla. Stat. (1981). Most of the provisions of chapter 934 are identical, or nearly identical, to those contained in Title III of the federal Omnibus Crime Control & Safe Streets Act of 1968. 18 U.S.C. §§ 2510, et seq. (West 1978). [2] See §
934.09(5), Fla. Stat. (1981). [3] We note that the intercept order also failed to satisfy section
934.09(5), which states in pertinent part: Every order ......
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...Second, the court determined that the application and affidavit were insufficient to establish probable cause. Third, the court held that the application and affidavit failed to establish that normal investigative procedures had been tried and failed or were too dangerous, as required by Section 934.09(3) Florida Statutes (1979)....
...Thus, the trial court's finding that the issuing magistrate was misled by a false interpretation is not supported by the record. Accordingly we determine that the affidavit was sufficient to establish probable cause. The third basis for suppression of the evidence below was a supposed failure to comply with Section 934.09(3)(c), Florida Statutes (1979)....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...The appellees then filed motions to suppress which were granted in an order that found: 1. The electronic surveillance placed on the telephone line of Joseph Di Pietro was maintained beyond the time that the authorized objective was reached by the State of Florida. 2. Several of the reports required to be filed by Section 934.09(6), Florida Statutes, were not filed by the State of Florida....
...The trial court found that the applications did not contain a complete statement as to previous wiretap applications involving the persons whose communications were going to be intercepted or the identity of all such persons. This information is specifically required to be set forth in the application by Sections 934.09(1)(b) and (1)(e)....
CopyCited 3 times | Published | Supreme Court of Florida
...Informations were subsequently filed, charging the appellants with bookmaking. Appellants moved to dismiss the charges against them, alleging that the "bookmaking" statute is unconstitutionally vague and overbroad. They also moved to suppress the intercepted communications, on grounds of non-compliance with Section
934.09(1)(c), Florida Statutes (1975), and to compel disclosure of one confidential informant's identity in order to establish whether the state had obtained consent to the first intercepted communication as required by Section
934.03(2)(c), Florida Statutes (1975)....
...ails as well. [6] 2. Appellants argue that the wiretap affidavit furnished by undercover officials [7] did not include a "full and complete statement" that other investigative procedures had been tried or appeared unlikely to succeed, as required by Section 934.09(1)(c), Florida Statutes (1975)....
...ist law enforcement personnel in establishing direct contact with the suspects due to fear of physical danger. These recitations constitute a sufficient factual predicate on which the magistrate could properly have concluded that the requirements of Section 934.09(1)(c) were satisfied, and that normal investigative procedures were not reasonably likely to succeed....
...Perhaps bare allegations of a concern for safety or for premature disclosure of an investigation might not suffice in all circumstances, but the totality of the allegations here are sufficient to justify the magistrate's conclusion that the potential for harm was real and that, under Section 934.09(3)(c), alternate procedures "reasonably appear ......
...The legislature has expressly recognized that [t]he interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensible aid to law enforcement and the administration of justice. [15] Adherence to the strict statutory procedures prescribed in Section 934.09, as occurred here, accommodates both the needs of law enforcement officials and the legislature's asserted objective simultaneously "to protect effectively the privacy of ......
...It is noteworthy, however, that the court in Kerrigan went on to sustain the validity of the affidavit, adding that "the law does not require that a wiretap be used only as a last resort." Id. [13] Rodriguez v. State,
297 So.2d 15, 17 (Fla. 1974). [14] §
934.09(3)(c), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1994 WL 180402
...stablish probable cause were otherwise stale. She argues that before a judge can authorize law enforcement to acquire and use such a device to intercept numbers called into the original display pager, the specific requirements of sections
934.07 and
934.09, Florida Statutes (1991), must be followed....
...[1] Instead, it argues a judge need only adhere to the procedure outlined in sections
934.32 and
934.33, Florida Statutes (1991), to authorize law enforcement to use such a device. However, the state candidly concedes that if a duplicate display pager is covered by the requirements of sections
934.07 and
934.09, those requirements were not met in this case....
...The purpose of the statute is to place responsibility in a specifically enumerated "narrow class of officials to insure that such decisions come from a centralized, politically responsive source." State v. Daniels,
389 So.2d 631, 636 (Fla. 1980). A law enforcement officer is not included in this group. Section
934.09 sets out the stringent procedures that must be followed before a judge can issue a wiretap warrant....
...With this background, the issue we confront is whether information intercepted by a duplicate display pager constitutes the interception of a protected electronic communication under section
934.02(12), Florida Statutes (1991), such that the state must first seek authorization pursuant to sections
934.07 and
934.09 before it can lawfully obtain and use such a device....
...Finally, to conform to the federal act, the legislature mandated for the first time that the interception of electronic communications were to be governed by the same strict requirements as the interceptions of wire and oral communications. Ch. 88-184, § 5, at 1024, and § 7, at 1025 (codified as amended at §§
934.07 and
934.09, Fla....
...Accordingly, we hold that information transmitted to a display pager is an electronic communication under section
934.02(12), and that to lawfully intercept such information through a duplicate display pager, the state must strictly comply with the requirements of sections
934.07 and
934.09....
...Moreover, unlike the beeper messages in Dorsey, we are dealing with a communication that Congress has found is not readily accessible to the general public. Thus, we distinguish Dorsey. As noted, the state concedes, and the record reflects, noncompliance with sections
934.07 and
934.09....
...LECTRONIC 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)? Reversed and remanded with directions....
CopyCited 3 times | Published | Supreme Court of Florida | 8 Media L. Rep. (BNA) 1251
...Edwin T. Mulock and Robert A. Farrance of Mulock & Farrance, Bradenton, for John Doe, Appellants. Larry K. Coleman of Knowles, Blalock, Coleman & Landers, Bradenton, for appellee. OVERTON, Justice. This is an appeal from a trial court judgment holding section 934.091, Florida Statutes (1977), unconstitutional because it violates the freedom of the press provisions of the United States Constitution....
...We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. (1972). We affirm. This cause commenced when the Bradenton Herald, a newspaper of general circulation, sought a declaratory judgment against State Attorney James Gardner as to the constitutional application of section 934.091....
...The sole and limited issue for our determination concerns the authority of the state to direct without exception or procedural safeguards the criminal punishment of any person who truthfully publishes without malice the name of an unindicted subject of interceptions or wiretaps. Section 934.091, Florida Statutes (1977), reads as follows: (1) No person shall print, publish, or broadcast, or cause to be printed, published, or broadcasted, in any newspaper, magazine, periodical, or other publication, or from any television or radio broadcasting station, the name or identity of any person served with, or to be served with, an inventory or notification of interception of wire or oral communications pursuant to s. 934.09(7)(e) until said person has been indicted or informed against by the appropriate prosecuting authority....
...ory scheme would be seriously undermined. While not dispositive, we note that although most of chapter 934 tracks the federal wiretap law contained in 18 U.S.C. §§ 2510-2520 (1976), there is no provision in the federal statute which corresponds to section 934.091....
...persons might have for libel or invasion of privacy against any news medium. We decline appellant Gardner's invitation at oral argument to retroactively apply our newly approved constitutional right of privacy [1] to sustain the constitutionality of section 934.091....
...SUNDBERG, C.J., and BOYD, ALDERMAN and McDONALD, JJ., concur. ADKINS, J., dissents with an opinion. ADKINS, Justice, dissenting. The Bradenton Herald, Inc., hereinafter referred to as the Herald, filed an action seeking a declaratory judgment as to the constitutional application of section 934.091, Florida Statutes (1977), by James A....
...Gardner as state attorney. The Herald alleged that it had the name and identity of persons neither indicted nor informed against by Gardner, which persons had not been served with an inventory or notification of interception of wire or oral communications pursuant to section 934.09(7), Florida Statutes (1977). The Herald alleged that it intended to publish the names of these individuals, which publication is prohibited by the provisions of section 934.091, Florida Statutes....
...sity. Having succeeded in meeting such a burden in initially procuring a wiretap order, it should not be necessary to go through a repetitious procedural hearing which would fail to prove anything that has not already been shown. Procedural rules in section 934.091 would be a mere charade, accomplishing nothing and complicating much....
...ociety. In accordance with the principles announced in Katz v. United States , the legislature of Florida by section
934.01, Florida Statutes (1977), safeguarded the privacy of innocent persons during the interception of wire or oral communications. Section
934.091 only abridges publication of the name or identity of the person served with or to be served with an inventory or notification of interception until that person has been indicted or informed against....
...ted intrusion into the first amendment, the results indicate that the statute passes constitutional muster. The majority declines to retroactively apply our newly approved constitutional right of privacy amendment to sustain the constitutionality of section 934.091, Florida Statutes (1977)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...The trial court's order suppressing the use of the tape recorded evidence at Napoli's probation revocation hearing arising from the alleged bribe, rested on two grounds: 1. The tape was not properly safeguarded by the State in accordance with the provisions of Section 934.09(7)(a), (b), Florida Statutes (1977)....
...rcept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act. Section 934.09(7)(a), (b) provides: The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device....
...on for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom under §
934.08(3). (Emphasis supplied.) The trial court applied the provisions of Sections
934.09(7)(a), (b) in requiring the state, even in conducting consent interceptions under Section
934.03(2)(c), to seal its tapes with the court. There is no indication in the record that the recordings were altered in any way. We believe that the custody and seal provisions of Section
934.09 apply only to intercepts made pursuant to court authorization....
...o judicial authorization. Valid consent interceptions are lawful and require no prior judicial authorization. All other interceptions must be judicially authorized and regulated and the contents thereof protected in accordance with the provisions of Section 934.09(7)(a), (b)....
CopyCited 3 times | Published | Court of Appeals for the Eleventh Circuit | 1991 WL 2188
...ndated procedures or certain prior state court procedures. In this case, the officers followed a state court procedure with virtually identical standards as those found in the federal procedure and any resulting error was harmless. B. Probable Cause Section 934.09(3)(a), Florida Statutes, requires that issuance of an order authorizing the interception of wire or oral communications be predicated on a judicial finding of “probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in s....
...nica- *1565 tions must include “[a] full and complete statement as to whether or not other investigative procedures had been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” Fla.Stat.Ann. § 934.09(l)(c) (West....
...nterception of a communication of the type sought, the application must contain “a particular description of facts establishing probable cause to believe that additional communications of the same type will *1566 occur thereafter.” Fla.Stat.Ann. § 934.09(l)(d) (West Supp.1990); 18 U.S.C....
...1981) (police interception of messages broadcast over radio waves to a pocket pager does not require a court order). . Wiretap applications must contain a "full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued_” Fla.Stat.Ann. § 934.09(l)(b) (West Supp.1990); 18 U.S.C....
CopyCited 2 times | Published | Supreme Court of Florida | 2002 WL 351500
...cations for an order authorizing the interception of a wire or oral communications and orders granted pursuant to Chapter 934, Florida Statutes. Also included are original recordings of the contents of any wire or oral communication made pursuant to Section 934.09, Florida Statutes....
CopyCited 1 times | Published | Supreme Court of Florida
...The grounds on which Relators rely for issuance of the Rule Nisi are that neither Justice Adkins nor any other member of this Court had authority under the State Constitution, F.S.A., (particularly Article V, Section 1, Section 2, Section 3 and Section 4(2)), or Section 4(2), or under Florida Statutes Section
934.02 and
934.09(1), (2), (3), and Chapter 25, Florida Statutes, F.S.A., to authorize the interception of said oral or wire communications; that the Supreme Court of Florida is a court of limited jurisdiction having powers of organic law only as appears in Art...
..., not places." Florida thus far has little case law on the subject of probable cause as required by the Fourth Amendment to the Constitution of the United States and until such is forthcoming, in addition to the rigid requirement of Florida Statute, 934.09, F.S.A., I would borrow the case law relating to probable cause for the search of a home....
CopyCited 1 times | Published | Court of Appeals for the Eleventh Circuit
...In deciding this issue, we look, of course, not to the language of the statute alone, but to the state and federal court decisions interpreting the different statutes. 21 The federal statute, Title 18 U.S.C. Sec. 2518 (1)(a-f), is, in all relevant aspects, identical with the Florida statute, 934.09(1)(a-f)....
...as to which the application failed to include a statement as to previous wiretap applications involving the persons whose communications were sought to be intercepted, i.e., the information specifically required to be set forth in the application by Section 934.09(1)(e)....
...to privacy. Therefore, as an exception to a constitutional right it must be strictly construed and narrowly limited in application to the uses delineated by the Florida Legislature. 41
287 So.2d at 47 . 42 A "narrow limitation" in the application of Section
934.09(1)(e) must, as determined by the Florida Fourth District Court of Appeals, require the suppression of evidence obtained from an interception that was not validly authorized....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 2160, 1987 Fla. App. LEXIS 12152
against whom the interception was directed. See §
934.09(9)(a), Fla.Stat. (1981). At the least, the witness
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 17838
...rom a wiretap. They contend the trial court erred in denying their motion to suppress the fruits of the wiretap because the police failed to use sufficient “other investigative techniques” before seeking court authorization for the interception. § 934.09(l)(c), Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 6356
...The period allowed therefor in the orders was limited to thirty days, or until completion of the authorized intercepts, if sooner accomplished. The .intercepts were conducted during the authorized period, and affidavits so stating were filed. The statute, by § 934.09(7)(e), Fla.Stat., F.S.A., provides that within a reasonable time, but not later than ninety days “after the termination of the period of an order or extension thereof” for such an intercept, the court shall cause to be served on the per...
...ion of this court, thereby hindering potential prosecution of those persons.” Acting thereon the judge granted an extension for an indefinite period, by ordering that “the serving of the inventories in the above captioned matters, as required by Section 934.09(7)(e), Florida Statutes [F....
...We hold that on the facts of this case the court ruled correctly. In so concluding we note that with reference to the periods for which an intercept may be authorized and extended, the statute imposes definite and reasonably short time limitations. By § 934.09(5) it is provided that no intercept order shall be for a period of more than thirty days, and that orders for extension thereof are required to “terminate upon attainment of the authorized objective or in any event in thirty days.” Furt...
...s such shall be served “within a reasonable time,” which is there shown to be not later than ninety days after the termination of the intercept period. Although in authorizing an order postponing (for cause) the service of inventory the statute (§ 934.09(7) (e) 3) did not fix a time limit therefor (as it did for *698 an order extending the period for an intercept), in view of the express time limitations contained in the statute the permission to postpone service of the inventory-should be...
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 17157
...Appellant argues that the failure to record the conversation deprived him of the opportunity to corroborate his testimony that he did not sell heroin to Officer Herron. Campbell argues further that Herron’s testimony should have been suppressed 1 since § 934.09(7)(a) 2 requires that once an *753 interception is made, the contents shall, if possible, be recorded and kept in such a way as to protect the recording from editing or other alterations, the statute can only be logically interpreted as requiring any intercepted communication which is not preserved be suppressed. We disagree. Section 934.09 pertains to the procedure for interception of wire or oral communications after an order is issued authorizing such interceptions....
...The statute requires only that the contents of the recorded conversation be preserved for the benefit of the court. The conversations which were intercepted here were not authorized by court order nor were they required by law to be; therefore, the provisions of § 934.09 have no application to the conversation intercepted by Officer Herron....
CopyPublished | Florida 1st District Court of Appeal
...And with respect to wiretapping in
particular, “[u]pon such application, the judge may enter an ex
parte order, as requested or as modified, authorizing or approving
2
interception of wire, oral, or electronic communications.”
§ 934.09(3), Fla....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 3115, 1990 WL 58281
...Section
934.03(2)(c) allows a law enforcement officer to intercept a communication when one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act. Section
934.09(9)(a) permits any aggrieved person to bring an action to suppress the contents of an unlawful interception, and section
934.02(9) defines an “aggrieved person” as “a person who was a party to any intercepted wire, oral, or electr...
...The defendant claims that her friend was coerced into making the call. The friend agrees she was nervous, she was not read the consent form which she eventually signed in the wrong place, she was frightened, and she was pressured into cooperating. The defendant, as an aggrieved person to an unlawful interception, § 934.09(9), claimed the conversation should be suppressed because her friend had not voluntarily consented to place the call....
...The trial court was empowered to make a credibility assessment as to the employee’s testimony that she was coerced into calling the defendant. Further, the defendant is clearly an aggrieved person under the statute’s definition and therefore under section 934.09(9)(a) she had the right to move for suppression of the eonversation....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 16065
...terception inventory was made more than 90 days after interception ceased. Specifically, Appellant complains of two 60-day extensions of time for service of post-interception inventory granted by the court on motion of Appellee under Florida Statute § 934.09(7)(e)....
...2 Appellant contends that lack of strict compliance with post-interception procedures requires suppression of evidence which was otherwise obtained in full compliance with the act. No reported authority supports that contention. Under Florida Statute § 934.09 the trial court’s discretion is properly exercised as to post-interception *477 procedures, including extension of time for serving inventory. 3 In the absence of an affirmative showing of prejudice, subsection (8) of § 934.09 provides that even the minimum furnishing of copies of the court order and application for wiretap to a party ten days before the trial or hearing can be waived where it is not possible for the State to furnish such information....
...nent “for the legislative history of the federal statute of which ours is a counterpart.” In U. S. v. Donovan,
429 U.S. 413 ,
97 S.Ct. 658 ,
50 L.Ed.2d 652 , the Supreme Court considered the purpose for the federal counterpart of Florida Statute §
934.09(7)(e) 4 and held that failure to serve notice on all parties whose communications were intercepted did not invalidate the interceptions, stating: “The legislative history indicates that postintercept notice was designed instead to assure the community that the wiretap technique is reasonably employed....
...nation whether to suppress wiretap evidence on a claim of failure of notice should be prejudice to the defendant . ” Further, we note that the grounds stated by the State in its motions for extensions of *478 time constitute “good cause” under § 934.09(7)(e)....
...n to suppress for delay in service of the post-interception inventory. Other matters raised by appellant have been considered and found to be without merit. The judgment below is AFFIRMED. SMITH, Acting C. J., and ERVIN, J., concur. .Florida Statute § 934.09(7)(e): “Within a reasonable time but not later than ninety days after the termination of the period of an order or extension thereof, the issuing or denying judge shall cause to be served on the persons named in the order or the applicati...
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 6559
for inspection under Chapter 934 F.S. F.S. Section 934.-09(7) (e) (3) F.S.A. provides: “The judge, upon
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 670, 1989 Fla. App. LEXIS 1364, 1989 WL 22509
...On March 2, 1987, after obtaining authorization from the State Attorney’s Office, Detective Lenz of the Indian River County Sheriffs Office filed a seventeen-page application for a wiretap involving the phone lines at the residence of Jimmy Killings. The authorization and application fully complied with the requirements of section 934.09, Florida Statutes (1987)....
...5th DCA 1981), and Wilson v. State,
377 So.2d 237 (Fla. 2d DCA 1979). In both of these cases, after a wiretap was entered, the subject of the tap changed residences and phone numbers. The Bagley and Wilson courts reasoned that, when a residence change occurs, section
934.09 requires that any supplemental application set out anew whether other investigative procedures have been tried and failed and, if not, why such measures would be too dangerous or reasonably appear unlikely to succeed....
CopyPublished | Florida 2nd District Court of Appeal | 1982 Fla. App. LEXIS 20461
...Defendant entered a plea of guilty to failure to appear, contrary to §
843.15, Fla. Stat. (1981). During the sentencing hearing the trial court heard testimony which was obtained from an intercepted wire communication. Over defense counsel’s objection, the trial court refused to require disclosure under §
934.09(8), Fla.Stat. (1981) of the court order and accompanying application under which the interception was authorized or approved before allowing such testimony. The trial court found that disclosure under §
934.09(8) was not required for the purposes of the sentencing hearing....
...failure to appear and sentenced him to four years imprisonment. Defendant contends that the trial court erred in hearing and considering the testimony which was derived from an intercepted wire communication without requiring disclosure pursuant to §
934.09(8). We agree. The issue to be resolved is whether a sentencing hearing is a “trial, hearing, or other proceeding” within the meaning of §
934.09(8), Fla.Stat. Section
934.09(8) is for all intents and purposes identical to 18 U.S.C. § 2518 (9) (1976), State v. Albano,
394 So.2d 1026 (Fla. 2d DCA 1981). Therefore, federal decisions interpreting the federal statute are instructive in determining the meaning of §
934.09(8)....
...n for reduction of sentence.” S.Rep.No. 1097, 90th Cong., 2d Sess. (1968), reprinted in [1968] U.S.Code Cong. & Ad. News, 2112, 2194, 2195. It is therefore clear that a sentencing hearing is a “proceeding” within the federal counterpart to § 934.09(8). We see no reason why the same interpretation should not be given to § 934.09(8). Accordingly, we hold that a sentencing hearing is a “proceeding” within the meaning of § 934.09(8), Fla.Stat. The trial' court erred in admitting testimony at the sentencing hearing which was derived from an intercepted wire communication, without requiring the disclosure provided for by § 934.09(8)....
CopyPublished | Florida 3rd District Court of Appeal | 1974 Fla. App. LEXIS 8867
the wiretap minimization requirements of F.S. § '
934.09(5), the judgments are hereby reversed on the authority
CopyPublished | District Court of Appeal of Florida | 1973 Fla. App. LEXIS 7640
...For the commission of that unrelated offense, the respondent was properly convicted. The petitioner contends, and we agree, that the offense was unrelated to the “wiretap,” and that the evidence to prove the offense was not derived from the wiretap, and therefore the pretrial delivery of pa *239 pers under § 934.09(8) was not required, and the absence thereof was immaterial....
CopyPublished | District Court of Appeal of Florida | 1984 Fla. App. LEXIS 14257
...determine if the victim’s telephone number was dialed from appellant’s telephone. At appellant’s hearing the court admitted into evidence data which showed that appellant’s telephone number was one of the numbers which the trace identified. Section 934.09(9)(a), Florida Statutes (1981), provides for unlawfully intercepted evidence to be suppressed on an aggrieved party’s motion....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 14879
...We find no merit in the other point raised on this appeal. In view whereof the order appealed from should be and it is hereby reversed, and the cause is remanded for further proceedings not inconsistent herewith. BOARDMAN, C. J., and RYDER, J., concur. . Section
934.01-10, Florida Statutes (1976). . Section
934.09(1)(b), Florida Statutes (1976)....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 16348
...934.07, Florida Statutes (1975), or probable cause for belief that communications concerning such an offense would be obtained through such interception. Appel- . lants, therefore, contend the trial court erred in denying their motions to suppress. § 934.09(3)(a) and (b), Florida Statutes (1975), provides in pertinent part as follows: “(3) Upon such application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception or wire or oral communica...
...Appellants contend that the application is insufficient in that it does not state the time when the confidential informants observed the illegal activity. They contend further that there was not a full and complete statement of the necessary facts and circumstances to support the issuance of the wiretap order, as required by § 934.09, in that it does not relate when in point of time the confidential informants observed the illegal activity and does not indicate how the informants were in a position to obtain the information they passed on to Layman, They further contend...
...ly limitations or restrictions on the use of common sense. In addition to the foregoing, appellants contend that postponement of serving of inventories upon them by the state was invalid and should have resulted in an order suppressing the evidence. § 934.09(7)(e), Florida Statutes (1975), provides: “Within a reasonable time but not later than 90 days after the termination of the period of an order or extension thereof, the issuing or denying judge shall cause to be served on the persons name...
CopyPublished | Court of Appeals for the Eleventh Circuit
...as to which the application failed to include a statement as to previous wiretap applications involving the persons whose communications were sought to be intercepted, i.e., the information specifically required to be set forth in the application by Section 934.09(l)(e)....
...t to privacy. Therefore, as an exception to a constitutional right it must be strictly construed and narrowly limited in application to the uses delineated by the Florida Legislature.
287 So.2d at 47 . A “narrow limitation” in the application of Section
934.09(l)(e) must, as determined by the Florida Fourth District Court of Appeals, require the suppression of evidence obtained from an interception that was not validly authorized....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 331, 1985 Fla. App. LEXIS 12301
...arch to be admissible against him. Appellant further contends that the state did not exhaust traditional investigative techniques or at least did not show that normal investigative techniques had failed or were unlikely to succeed, as is required by Section 934.09(l)(c), Florida Statutes. This argument is without merit because Section 934.09(l)(c) is satisfied if wiretapping appears to be the most reasonable investigative technique under the circumstances to secure other and conclusive evidence of criminal involvement, and it is not necessary that the state show that all possible techniques or alternatives have been exhausted....
CopyPublished | Florida 4th District Court of Appeal | 2004 WL 360881
...1998)("`[T]he term `proceeding' is used to refer to the steps within the `case' and to any sub-action within the case that may raise a disputed or litigated matter.'")(quoting In re Wolverine,
930 F.2d at 1141 n. 14); Jackson v. State,
416 So.2d 853, 854 (Fla. 1st DCA 1982)(finding that the term "proceeding" under section
934.09(8) included all adversary type hearings, including sentencing); Cooper v....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 905, 1990 WL 12747
...there is “probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of” an authorizing offense. § 934.09(3)(d), Fla.Stat....
CopyPublished | Court of Appeals for the Eleventh Circuit | 1994 WL 684514
...In Florida, the issuance of an order authorizing the interception of wire or oral communications must be predicated upon a judicial finding of “probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in s.
934.07.” Fla.Stat.Ann. §
934.09(3)(a) (West Supp....
...An application for an order authorizing the interception of wire communications must also include “[a] full and complete statement as to whether or not other investigative procedures had been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” Fla.Stat.Ann. § 934.09(l)(e) (West Supp....
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 21948
...aine and quaa-ludes. By information, the state asserted these statements were knowingly false. Defendant moved to suppress evidence of her recorded telephone conversations with Dennis Hogan which had been acquired under a wiretap. issued pursuant to Section 934.09, Florida Statutes (1979). The trial court granted the motion to suppress and the state appeals. Section 934.09, Florida Statutes (1979), provides numerous safeguards protecting citizens from unwarranted wiretaps. The sole basis for the motion to suppress as adopted by the trial court in its order granting same related to Section 934.09(l)(c) which provides in relevant part as follows: (1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall ......
...include the following information: (c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. Under the procedures required by Section 934.09, Florida Statutes (1979), the state made an application to a circuit judge for authorization to place a tap on Dennis Hogan’s phone....
...One co-conspirator may not preclude the use of evidence acquired through a tap by merely pointing to abundant probable cause already in possession óf the government to arrest others. We therefore conclude that the motion to suppress filed pursuant to Section 934.09(9)(a) was erroneously granted and the order in question is vacated and the matter remanded to the trial court for further proceedings....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 15702
...The same points raised in these motions are now before us on appeal. Each defendant contends that the trial court erred in denying his motion to suppress the evidence procured by the State pursuant to orders for the interception of wire communications entered under author *571 ity of Section 934.09, Florida Statutes (1977)....
...In this regard, it is argued that the trial court should have suppressed all the evidence procured by the State by the use of wiretaps because there was an unexcused delay between the time of authorization and the time of execution of the order. The relevant portion of Section 934.09(5), Florida Statutes (1977), provides: * * * * * * “Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable ...” ****** The defendants do no more than claim that this was not done....
CopyPublished | Florida 5th District Court of Appeal
...o-way communication
device to facilitate the unlawful possession of heroin, fentanyl or
methamphetamine. Appellee moved to suppress evidence obtained from the
wiretaps, arguing that the evidence was derived from unlawful wiretaps in
violation of section 934.09, Florida Statutes (2021)....
...burden of establishing a violation of the Fourth Amendment.” State v. Mobley,
98 So. 3d 124, 125 (Fla. 5th DCA 2012). “The initial burden requires the
defense to make some showing that a search occurred and was invalid.” Id.
Wiretaps are governed by sections
934.03–
934.09 of the Florida
Statutes. Suppression of the results of the use of this investigative tool is
addressed in section
934.09, which provides in relevant part as follows:
(10)(a) Any aggrieved person in any trial, hearing, or
proceeding in or before any court ....
...The communication was unlawfully intercepted;
2. The order of authorization or approval under which
it was intercepted is insufficient on its face; or
3. The interception was not made in conformity with
the order of authorization or approval.
§ 934.09(10)(a), Fla....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 8009, 1994 WL 419603
...cause to believe appellees were engaged in prostitution and prostitution related crimes. However, McQue believed that he could not obtain the evidence necessary to prosecute these individuals without using wiretap surveillance. As such, pursuant to section 934.09(l)(a) of the Florida Statutes, McQue filed an affidavit and application for an order authorizing the interception of wire, oral and electronic communications....
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 20729
...name, and the unreliable anonymous tip into probable cause. While the other tenuous or stale information supports the suspicion that the phone itself was being used for a gambling operation, it does no more than that. The probable cause required by Section 934.09, Florida Statutes (1979), has not been shown....
CopyPublished | Florida 3rd District Court of Appeal | 1973 Fla. App. LEXIS 6915
“aggrieved” persons within the purview of Section 934.-09, Florida Statutes, F.S.A.; that the orders
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 4668, 1993 WL 130968
...Section
934.06 prohibits the use of any information obtained from wire or oral communications as evidence if the use of such information violates chapter 934. Thus, if the State’s wiretap violated chapter 934, then the State may not ask Miller any questions which arose from information obtained in the illegal wiretap. Section
934.09(8) states: The contents of any intercepted wire, oral, or electronic communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding unless each party, not...
...Likewise, the instant case also involves an interpretation of chapter 934, not an interpretation of Florida or United States constitutional law. In the instant case, we are unable to determine from the record whether Miller received the ten day notice required under section 934.09(8), nor whether Miller timely filed his motion to suppress....
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 6849
...he State, Assistant State Attorneys would be entitled to authorize an interception of communication pursuant to the Section. Of course, this authorization only puts in motion the procedure to obtain such authority from a judicial officer pursuant to § 934.09, Fla.Stat, F.S.A., and it is assumed that any judicial officer will comply with the requirements of Ch....
CopyPublished | Florida 2nd District Court of Appeal
...)
___________________________________)
Opinion filed April 18, 2018.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court
for Pinellas County; Frank Quesada,
Judge.
Jamie Geer, pro se.
PER CURIAM.
Affirmed. See § 934.09(10)(a), Fla....
