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reversing conviction, holding that recording of confidential informant's telephone conversation could not be admitted into evidence absent proof of informant's consent to taping
Summary of this case from Daniels v. StateOpinion
No. 89-0975.
May 23, 1990.
Appeal from the Circuit Court, Broward County, Robert B. Carney, J.
Richard L. Jorandby, Public Defender, and Marcy K. Allen, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Deborah Guller, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant raises two points. As to the first point, we reverse and remand for a new trial because of the absence of proof of the confidential informant's consent to the taped conversation. See State v. Welker, 536 So.2d 1017 (Fla. 1988). We find no merit to appellant's second point; namely, her attack upon the information.
GLICKSTEIN, J., concurs.
DELL, J., concurs specially with opinion.
GARRETT, J., concurs in part and dissents in part with opinion.
I agree with Judge Glickstein that appellant's conviction must be reversed and this case remanded for a new trial. The record does not support the state's argument that the police officer's testimony furnished a sufficient predicate for the admission of the tape. See State v. Welker, 536 So.2d 1017 (Fla. 1988). The officer testified:
Q. All right. And did Derrick [the confidential informant] know he was being taped?
A. I told him I taped a couple of times. I don't know on that particular time. I know most of the time I will tell him any time we met with him.
. . . .
Q. As to the tape containing the voices of the parties of the conversation, whoever they may be, did you tell Derrick at any time that you were going to record his conversation with the person he was speaking to?
A. I don't know if he had knowledge that day or not. I don't remember if I said I am going to record this or not. Like I stated, all the other meetings with him we did record anything concerning narcotics trafficking in the Northwest area.
(Emphasis added.)
A Fort Lauderdale police officer testified that he taped a telephone conversation while assigned to a special crack cocaine investigation unit. The telephone call began as a two-party conversation between the CI and the officer. The CI then dialed a third party. The officer testified that the CI "let [him] listen in to the conversation." The officer tape-recorded both conversations. On the same day, the officer obtained a warrant to search a house. At trial, over defense counsel's objection, the judge admitted the tape into evidence.
I respectfully dissent to the majority holding that the state failed to prove the confidential informant's (CI) consent to the taping.
The CI did not have to testify about giving his consent to the officer's interception of appellant's conversation. State v. Welker, 536 So.2d 1017, 1020 (Fla. 1988). The officer's testimony that the CI consented to the intercept sufficed to permit the introduction of the tape recording. Id.
I also differ with Judge Dell's concurring opinion. No Florida statute or case requires that the party who consents to the interception must also consent to the method chosen by a police officer to memorialize the intercepted conversation.
We should affirm the trial judge's ruling to admit the tape. A police officer is authorized to use electronic, mechanical or other device to intercept a telephone conversation to obtain evidence of a crime when one of the parties to the conversation has given prior consent to such interception. § 934.03(2)(c), Fla. Stat. (1987).
Merely listening on a telephone does not constitute an interception. A police officer can testify about a telephone conversation which he has overheard. State v. Tsavaris, 394 So.2d 418, 420, 424 (Fla. 1981). A telephone furnished in the ordinary course of business by a telephone company to one of its subscribers or users is not included in the definition of "electronic, mechanical or other device." § 934.01(4)(a), Fla. Stat. (1987). Therefore, no interception occurred when the police officer used a telephone to listen as appellant and the CI talked.
But a tape recorder is an electronic device and the tape recording of a telephone conversation is an interception. Id. at 421. However, the CI, as one of the parties to the conversation, consented to the interception by the police officer to obtain evidence of cocaine trafficking. Therefore, no unlawful interception occurred when the police officer tape recorded appellant's telephone conversation.
Where the initial interception is legal, so too is the recording of that interception. Tsavaris, 394 So.2d at 424 (citing State v. McDermott, 167 N.J. Super. 271, 400 A.2d 830 (Ct.App. Div. 1979) and Amsler v. United States, 381 F.2d 37, 50 (9th Cir. 1967)).
Contrary to appellant's argument, the state did prove that she was one of the persons talking on the telephone with the CI. I recognize that self-identification is not competent evidence to identify a party to a telephone call, See Byer v. Florida Real Estate Comm'n., 380 So.2d 511 (Fla. 3d DCA 1980), but the identity of the third party was circumstantially proven. The officer testified that "when I spoke with [appellant] the voice matched the voice on the tape." See Worley v. State, 263 So.2d 613 (Fla. 4th DCA 1972); See Cason v. State, 211 So.2d 604 (Fla. 2d DCA), cert. dismissed, 218 So.2d 167 (Fla. 1968).
On direct examination, appellant admitted that she was the third person on the tape.
I concede that the portion of the tape which recorded the two-party conversation between the CI and the officer was irrelevant or hearsay evidence. Although such evidence may have been proper to provide the probable cause for the search warrant, the same should have been excluded from appellant's trial.
We should also affirm appellant's conviction and sentence. I find that the admission of the objectional part of the tape did not reasonably affect the verdict. Nor, if erroneously admitted, did the tape. The police officer testified that the conversation recorded on the tape was the conversation he heard on the telephone. The admissible evidence proved appellant's guilt beyond a reasonable doubt. Her telephone conversation with the CI speaks for itself. Appellant was present in the house when the officers executed the warrant. After appellant was advised of her rights, she admitted that there was cocaine in her purse and she showed the officers more cocaine hidden behind a bedroom dresser. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).
Appellant: Hello.
Confidential informant (CI): Hello, mom?
Appellant: Yeah.
CI: You got anything with you now.
Appellant: That is done [cooked] up?
CI: That you know he can see that [is] straight.
Appellant: Oh, yeah, that is already done up.
CI: Okay, I am going to just get one, you know, for five dollars fifty cents, you know what I am talking about? I want to get one that is done up.
Appellant: The one that is done up is 585 [dollar price of one cake — an ounce]
CI: Okay. That is straight, right? And you know what I am talking about?
Appellant: Uh-huh. You get a 25 return [dollar profit].
CI: 25 return?
Appellant: Right, guaranteed.
CI: I will come by myself now, I am not going to bring him.
Appellant: Make sure you [are] not followed so don't come straight.
CI: You know me.
Appellant: Okay.
CI: All right.
I concur that appellant's other point is without merit.