State v. Sarmiento

We have for review the decision of the District Court of Appeal, Third District, in Sarmiento v. State, 371 So.2d 1047 (Fla. 3d DCA 1979), which conflicts with Franco v. State, 376 So.2d 1168 (Fla. 3d DCA 1979). The issue we address is whether the war-rantless, electronic interception by state agents of a conversation between defendant and an undercover police officer in defendant’s home is an unreasonable interception of defendant’s private communications in violation of article I, section 12, Florida Constitution. Jurisdiction vests in this Court pursuant to article V, section 3(b)(3), Florida Constitution (1972).

Closely paraphrased from the district court opinion, the pertinent facts follow. On February 14, 1978, Detective Charles Hitchins of the Monroe County Sheriff’s Office, working as an undercover narcotics officer, was at a bar in Key West, Florida. Also present in the bar were defendant Julian Sarmiento and a young girl reputed to be living with him. Detective Hitchins told Sarmiento’s girlfriend that he was interested in purchasing some heroin. The girl thereupon left and had a conversation with defendant outside the presence of the detective. She later returned to inform Detective Hitchins that he could make a buy of heroin at the defendant’s house trailer which was located next door at 10:30 p. m. that night. Arrangements were made to meet at that location and time.

Detective Hitchins thereafter notified his superior officer of the proposed narcotics purchase who in turn alerted other law enforcement officers. Detective Hitchins was equipped with a hidden electronic “body bug” for the purpose of allowing the surveilling police officers to monitor any conversation Detective Hitchins might have with defendant in the defendant’s house trailer that night. No effort was made by any police officer connected with this case to apply for an intercept warrant for the electronic eavesdropping.

Detective Hitchins later went to the defendant’s house trailer as planned with a confidential informer and made a purchase of heroin from the defendant. Several law enforcement officers were stationed nearby outside the house trailer pursuant to a prearranged police plan. Two of these officers monitored and overheard certain conversations inside the house trailer by means of the electronic “body bug” worn by Detective Hitchins. The conversations overheard in the house trailer tended to establish that the defendant had participated in selling a quantity of heroin to Detective Hitchins.

At trial, defendant objected to and moved to suppress the testimony of the police officers as to what they heard on the electronic monitor relating to the conversations between defendant and Detective Hitchins in the defendant’s house trailer. He argued that such evidence was inadmissible as constituting an unreasonable interception of private communications because of the failure of the police to obtain a prior intercept warrant for the electronic surveillance in this case. The trial court denied the motion. The defendant was convicted as charged and sentenced to ten years in the state penitentiary.

The district court reversed, holding that the electronic interception of the conversation in the trailer was unreasonable and violative of article I, section 12. For the following reasons we approve the district court’s decision.

Article I, section 12 of the Florida Constitution provides in relevant part:

The right of the people to be secure in their persons, houses, papers and effects against ... the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, ... the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.

The district court correctly analyzed that the definition of “interception of private communications” is a function of one’s reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The court also correctly concluded that

[t]he defendant without question assumed the risk that this officer might betray the defendant’s trust and reveal, as he did, the contents of this conversation to the outside world. That, in our view, is a reasonable risk which any person assumes when he talks to anyone as the speaker has it within his power to gauge whether to take such a risk based on his personal assessment of the person to whom he is talking. As such, there was no invasion of the defendant’s reasonable expectation of privacy [and thus no “interception” in the constitutional sense] for the officer to listen to and later testify, as he did, to the content of the defendant’s conversation in the home.

371 So.2d at 1050.

But what makes the issue before us different from the situation above is that Sarmiento did enjoy a reasonable expectation of privacy that no one else was listening to the conversation in the home besides the undercover police officer and others present therein. To assume the risk that one who participates in a conversation held in the home might later reveal the contents of that conversation is one thing, but to assume the risk that uninvited and unknown eavesdroppers might clandestinely participate in that conversation and later reveal its contents is another, and indeed proves too much. We echo Judge Hub-bar t’s sentiments:

We are unwilling to impose upon our citizens the risk of assuming that the uninvited ear of the state is an unseen and unknown listener to every private conversation which they have in their homes. That is too much for a proud and free people to tolerate without taking a long step down the totalitarian road. The home is the one place to which we can retreat, relax, and express ourselves as human beings without fear that an official record is being made of what we say by unknown government agents at their unfettered discretion.

Id. at 1051.

We further concur, for the reasons expressed in the district court opinion, that the interception of Sarmiento’s conversation in his home was “unreasonable.”

Our colleague in dissent contends vigorously that the Florida Legislature recognizes the right of a police officer to intercept an oral communication when such person is a party to the conversation or where one of the parties to the communication has given prior consent to the interception. § 934.03(2)(c), Fla.Stat. (1977). Our response to this contention is simple; insofar as that statute authorizes the warrantless interception of a private conversation conducted in the home, it is unconstitutional and unenforceable. Our colleague continues that the United States Supreme Court has held that the Federal Constitution permits the type of electronic interception found here. But surely he would concede that the citizens of Florida, through their state constitution, may provide themselves with more protection from governmental intrusion than that afforded by the United States Constitution. A fundamental task of the judiciary is to safeguard the constitutional rights of the citizenry. The criminal justice system must protect the rights of the innocent as swiftly and as certainly as it punishes the guilty, less it impinge upon the rights of those whom it, with good intentions, seeks to protect.

Accordingly, the petition for writ of cer-tiorari is granted, and the decision of the District Court of Appeal, Third District, is approved.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND and McDONALD, JJ., concur.

ALDERMAN, J., dissents with an opinion, with which BOYD, J., concurs.