Motion to Suppress Evidence – Controlled Calls

COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Rule 3.190(h), Florida Rules of Criminal Procedure, and §§ 934.03 and 934.06, Fla. Stat., and respectfully moves the Court to suppress any and all evidence of the controlled calls made by the alleged victim to the Defendant, and in support thereof, states as follows:

STATEMENT OF FACTS

1. On January 12, the alleged victim reported to Officer J. F. R. of the Jacksonville Sheriff’s Office (JSO) that she had been sexually abused by the defendant in Jacksonville, when she was 9 or 10 years old.
2. On January 14, the alleged victim met with JSO Det. R. R., and discussed her allegations of sexual battery against the defendant in more detail. (R. Supp. Report #2).
3. During his meeting with the alleged victim, Det. R. explained controlled calls to her. She did not agree to make a controlled call at that time, but stated she would travel back to her home in North Carolina on January 15, and would discuss it with her husband. (R. Supp. Report #2, p. 4).
4. On January 16, Det. R. contacted the alleged victim again to discuss the controlled call. (R. Supp. Report #2, p. 4).
5. On January 18, Det. R. spoke to the alleged victim a third time about the controlled call, and she agreed to conduct the call the following day. (R. Supp. Report #2, p. 5).
6. On January 19, JSO Detectives R. and K. N. M. traveled to the alleged victim’s residence at Camp Lejeune, North Carolina. (R. Supp. Report #2, p. 5).
7. On January 19 and 20, the alleged victim made two (2) controlled calls to the defendant on his cellular phone, from her residence at Camp Lejeune, North Carolina. Both calls were surreptitiously recorded by the JSO detectives. (R. Supp. Report #2, p. 5).
8. Because the JSO detectives were on a U.S. Marine Corps (USMC) military installation, two USMC Criminal Investigation Agents arrived at the residence, and remained present during the recorded calls, “but were not involved in the investigation in any capacity.” (R. Supp. Report #2, p. 5).
9. On January 21, Det. R. obtained an arrest warrant for the defendant for sexual battery. The defendant was arrested the same day.
10. On January 29, the State filed an Information against defendant, alleging four (4) counts of sexual battery, which allegedly occurred in Duval County, Florida, between July 31, and July 30.
11. On February 2, the State filed its Discovery Exhibit and Demand for Reciprocal Discovery, and listed “all statements on controlled call” as evidence they planned to use at a trial in this matter.
MEMORANDUM OF LAW

A. Controlled Calls – Generally

The controlled calls made by the alleged victim to the defendant were private oral communications. Chapter 934, Fla. Stat., governs the security and surveillance of private communications in Florida. Section 934.03, Fla. Stat., prohibits the interception and disclosure of wire, oral, or electronic communications, except as specifically provided in Chapter 934.
One of the provided exceptions is outlined in § 934.03(2)(d), Fla. Stat. That subsection permits interception of the communication “when all parties to the communication have given prior consent to such communication.” That exception does not apply to the controlled calls made in this case, because, as confirmed by Det. R., the calls were “surreptitiously recorded.” The Client was not made aware of, and did not consent to, the interception of the private calls made by the alleged victim to him on January 19 and 20.
A second exception to § 934.03 is contained in subsection (2)(c). It states as follows:
It is lawful under this section and ss. 934.04-934.09 for an investigative or law enforcement officer or a person acting under the direction of an investigative or law enforcement officer to intercept a wire, oral, or electronic 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. (Emphasis added).
Thus, under § 934.03(2)(c), a law enforcement officer, or someone acting under the direction of a law enforcement officer, may lawfully intercept a private communication, if the purpose of the interception is to obtain evidence of a criminal act.
The State necessarily relies on this exception to § 934.03, in order to introduce evidence of the controlled calls at a trial in this matter. Thus, the relevant question is whether JSO officers, operating outside their territorial jurisdiction, could lawfully intercept and record a call, without the defendant’s knowledge or consent. We will address that issue in Part B, infra.

B. Jurisdiction of Law Enforcement Officers

In the instant case, as noted, Det. R. and Det. M. were employed by the Jacksonville Sheriff’s Office, and had the authority to investigate crimes that allegedly occurred within their territorial jurisdiction of Jacksonville, Duval County, Florida. Although the law permits officers to conduct an investigation outside their territorial jurisdiction, when the subject matter of the investigation originated within their own jurisdiction, law enforcement officers cannot use the “power or color of their office in order to gather evidence or ferret out criminal activity not otherwise observable” in a foreign jurisdiction, as they did here. State v. Sills, 852 So. 2d 390 (Fla. 4th DCA 2003); State v. Phoenix, 428 So. 2d 262 (Fla. 4th DCA 1982) approved and remanded, 455 So. 2d 1024 (Fla. 1984); Wilson v. State, 403 So. 2d 982 (Fla. 1st DCA 1980).
In this case, the JSO detectives were not within their territorial jurisdiction when they intercepted the controlled calls made by the alleged victim in Camp Lejeune, North Carolina. Therefore, they were not permitted to utilize “the power or color of their office” to intercept the calls made by the alleged victim to the defendant. Id.
In Phoenix, 428 So. 2d 262, the court addressed whether officers could make an arrest outside of their territorial jurisdiction. The Phoenix court held that, under the common law in Florida, the police could have made a valid “citizen’s arrest,” but the court specifically stated the following:
We recognize the line of cases holding that municipal police officers may conduct investigation outside of their territorial jurisdiction, if the subject matter of the investigation originated in their own jurisdiction. Nonetheless, the principle espoused in these cases is subject to the proviso set forth in the text of our opinion, viz., that officers who act outside their jurisdiction, but not in fresh pursuit, may investigate and gather evidence only through the use of their own senses and through the voluntary cooperation of citizens; they may not employ the power or color of their office either expressly or by implication in order to gather evidence or ferret out criminal activity not otherwise observable.

Phoenix, at 266 n. 2 (citations omitted, emphasis added).

In the instant case, the JSO detectives were outside of their territorial jurisdiction when they intercepted and recorded the calls made by the victim to the defendant. The exception provided in § 934.03(2)(c), permits a law enforcement officer or a person acting under the direction of an investigative or law enforcement officer to intercept a private communication in order to obtain evidence of a crime. Such action involves the officer utilizing the “power or color of their office,” to intercept or approve the intercept, “in order to gather evidence or ferret out criminal activity not otherwise observable.” A private citizen, in these same circumstances, could not have lawfully intercepted the controlled calls, without the consent of all parties to the call. Because the detectives were outside of their territorial jurisdiction, they could not lawfully intercept the calls, or direct the alleged victim to do so.
In addition to Chapter 934, Fla. Stat., the Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution guarantee the right to be free from “unreasonable searches and seizures….” The interception of a private call is a search for purposes of the Fourth Amendment. And, “…when a private party acts as an ‘instrument or agent’ of the State, in effecting a search and seizure, fourth amendment interests are implicated.” State v. Moninger, 957 So .2d 2, 4 (Fla. 2d DCA 2007) quoting Treadway v. State, 534 So. 2d 825, 827 (Fla. 4th DCA 1988).
In State v. Iaccarino, 767 So. 2d 470, 476 (Fla. 2d DCA 2000), the court outlined a two prong test for determining whether a private individual acts as an instrument of the state. The first prong is “whether the government was aware of and acquiesced in the conduct,” and the second is “whether the individual intended to assist the police or further his own ends.” Here, the alleged victim only agreed to make the calls after Det. R. discussed it with her on three separate occasions (including one discussion while she at her mother’s home in Jacksonville, Florida). She did not make the calls until the detectives traveled from Jacksonville, Florida, to her home in North Carolina. Finally, it was the detectives who intercepted and recorded the call, not the alleged victim. These facts establish that the detectives not only were “aware of and acquiesced” to the alleged victim’s conduct in making the controlled calls, but encouraged and enabled those calls to be intercepted and recorded. Second, the alleged victim’s purpose in making the controlled calls was to assist law enforcement in obtaining additional evidence against the defendant. Thus, there is no question that the alleged victim acted as an agent of law enforcement, when she placed the calls to the defendant.
Because the detectives were outside of their territorial jurisdiction, they had no authority to “use the power or color of their office” to intercept the calls or to direct another to do so. Therefore, the exception provided in § 934.03(2)(c), permitting a law enforcement officer or a person acting under the direction of an investigative or law enforcement officer does not apply here. Thus, the controlled calls obtained in this matter were unlawfully intercepted and recorded by law enforcement, in violation of § 934.03, Fla. Stat., the Fourth Amendment of the U.S. Constitution, and Article I, section 12 of the Florida Constitution.

C. Suppression

Chapter 934, Fla. Stat., contains its own suppression provision. Section 934.06, Fla. Stat., states as follows:
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court … of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.

Here, because the controlled calls were obtained in violation of § 934.03, all evidence derived from them must be suppressed. State v. Walls, 356 So. 2d 294 (Fla. 1978); Horn v. State, 298 So. 2d 194 (Fla. 1st DCA 1974). Furthermore, suppression is required by the Fourth Amendment of the U.S. Constitution, and Article I, section 12 of the Florida Constitution.
WHEREFORE, the Client moves the Court to enter an order suppressing any and all evidence of the controlled calls obtained by officers of the Jacksonville Sheriff’s Office in this matter.