GILBERT HOWARD SHAYNE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Shayne was convicted based on legally recorded telephone conversations about illegal bookmaking. He appealed arguing the evidence should be suppressed as derived from an earlier illegally recorded call, but the court rejected the derivative evidence argument, finding the later recordings sufficiently attenuated from the initial illegality.
The court affirmed the conviction, holding that the January recordings were not subject to suppression because they were obtained through lawful means that were sufficiently distinguishable from the initial illegality to purge any taint, and the connection between the two recordings was too attenuated to warrant suppression.
[1] A telephone conversation recorded with the consent of one party and under police direction is permissible under Florida law.
[2] Evidence derived from an illegally intercepted communication may be admissible if it is sufficiently distinguishable from the initial illegality to be purged of the prima…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the evidence of the January conversations, recorded as they were in a perfectly lawful and authorized manner which would be sustained if the September call had never occurred, was obtained, in the words of Wong Sun, by means "sufficiently distinguishable [from the initial illegality] to be purged of the primary taint."”
Establishes the court's primary holding that evidence obtained through lawful means is not tainted by earlier illegality when the legal process would stand independently.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn September 26, 1977, an informant named Alpert recorded a conversation with Shayne about bookmaking without police authorization, which was subseque…
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SCHWARTZ, Judge.
The defendant-appellant was found guilty after a nolo plea to several charges which were ultimately based on two recorded telephone conversations of January 12 and 13, 1978, in which he engaged in illegal bookmaking. Since these conversations were recorded with the consent of the other party, one Alpert, and under police direction and supervision, there is no question that the “bugging” was entirely permissible under Section 934.03(2)(c), Florida Statutes (1977).
Tollett v. State, 272 So. 2d 490 (Fla.1973).1 Shayne contends, however, that the contents of the January calls should have been suppressed pursuant to Section 934.06, Florida Statutes (1977) because they were “derived from” an illegally intercepted telephone call from the same informant which took place on September 26, 1977.2 It is argued in this regard that the police would not have authorized the tap on Alpert’s phone, thus legalizing the recording of the January conversations, if they had not been aware of the “hard evidence” of Shayne’s bookmaking activities contained in the transcription of the September call. We completely disagree with this position.
Shayne was under intense police suspicion and scrutiny both before and after September, 1977 on grounds unrelated to the improperly recorded call. In addition, the officers in question were otherwise fully aware of Alpert’s avowed continuing ability to engage the defendant in a bookmaking conversation at any time.
Therefore, it is highly doubtful that there was even a “but for” relationship between the September and the January recordings. Assuming, however, that this was in fact the case, it is not enough to permit Shayne to prevail. State v. Maier, 378 So. 2d 1288 (Fla. 3d DCA 1979) and cases cited. It is obvious that the evidence of the January conversations, recorded as they were in a perfectly lawful and authorized manner which would be sustained if the September call had never occurred, was obtained, in the words of Wong Sun,
by means “sufficiently distinguishable [from the initial illegality] to be purged of the primary taint.” The fact that information which is preserved through unlawful means provides a subjective reason for motivating a lawful investigation is no basis for suppressing evidence which is thereafter properly secured. See Bush v. State, 369 So. 2d 674 (Fla. 3d DCA 1979).
This description of the present situation itself sufficiently demonstrates that the relationship between the pieces of evidence was so extremely “attenuated as to dissipate the taint” as a matter of law. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312 (1939).
It is, in other words, irrelevant that the officer smelled the blossom of the poisonous tree before he authorized the tap. See also United States v. Crews, - U.S. -, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980).
Affirmed.
. The appellant raises no issue concerning the absence of an intercept warrant authorizing the recording. See Franco v. State, 376 So. 2d 1168 (Fla. 3d DCA 1979).
. The September 26, 1977 conversation was suppressed (and the charge based upon it thereafter nol prossed) because no officer had expressly directed Alpert to record it. The state does not dispute the correctness of this ruling.
.Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bouler v. State, 389 So. 2d 1197 (Fla. 5th DCA 1980)…was obtained by police listening in on a telephone conversation between appellant and a confidential informant with the latter’s consent. This was not an illegal interception as one party consented. § 934.03(2)(c), Fla.Stat. (1977); Shayne v. State, 384 So. 2d 711 (Fla. 3d DCA 1980); State v. Scott, 385 So. 2d 1044 (Fla. 1st DCA 1980). In addition, the wiretap affidavit as a whole indicated a continuing pattern of criminal activity with sufficient currency as to be legally fresh and viable. Rodriguez v. State…
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Smith v. State, 438 So. 2d 10 (Fla. 2d DCA 1983)…other procedures were initiated principally because of knowledge gained from the first wiretap. Exploitation of the wiretap information, not independent lawful investigation or fortuitous discovery, led to the evidence obtained. See Shayne v. State, 384 So. 2d 711 (Fla. 3d DCA 1980); State v. Maier, 378 So. 2d 1288 (Fla. 3d DCA 1979). We are thus unable to find support for the trial court’s finding that the arrests and seizures were attenuated from and independent of the first wiretap. Therefore, if this wire…
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State v. Matera, 401 So. 2d 1361 (Fla. 3d DCA 1981)…United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Shayne v. State, 384 So. 2d 711 (Fla. 3d DCA 1980); State v. Maier, 378 So. 2d 1288 (Fla. 3d DCA 1980). Accordingly, this claim by Matera cannot be a basis for relief.5 III. Suggestive Identification. The record affirmatively and abundantly shows that Matera’s trial counsel kne…
Authorities Cited
- Wong SUN v. United States, 371 U.S. 471 (U.S. 1963)
- Nardone v. United States, 308 U.S. 338 (U.S. 1939)
- United States v. Crews, 445 U.S. 463 (U.S. 1980)
- Tollett v. State, 272 So. 2d 490 (Fla. 1973)
- Kellogg v. Found, 376 So. 2d 1168 (Fla. 5th DCA 1979)
- Franco v. State, 376 So. 2d 1168 (Fla. 3d DCA 1979)
- Mavis L. Harris v. Metro. Prop. & Liab. Ins. Co., 369 So. 2d 674 (Fla. 3d DCA 1979)
- Dixon v. State, 369 So. 2d 674 (Fla. 3d DCA 1979)
- Bialowas v. Nat'l R.R. Passenger Corp., 378 So. 2d 1288 (Fla. 3d DCA 1979)
- State v. Maier, 378 So. 2d 1288 (Fla. 3d DCA 1979)