Now you see it, now you don't, privacy and search and seizure in the Florida constitution: trying to make sense out of a tangled mess.

• Author: Marks, Jr., Thomas C.

We also agree with the state that our right-of-privacy provision, article I, section 23, (1) of the Florida Constitution, does not modify the applicability of article I, section 12, (2) particularly since the people adopted section 23 prior to the present section 12. (3)

1. STATEMENT OF THESIS

   The thesis of this article is relatively simple. The only way sense can be made of the decisions of the Florida courts that have considered section 23, Florida's constitutional right of privacy, in search and seizure contexts is to focus on the phrase "applicability of article I, section 12" in the above quotation from State v. Hume.

   The conformity amendment to section 12, Florida's search and seizure provision, fully connects section 12 to the Fourth Amendment of the United States Constitution as interpreted by the United States Supreme Court. (4) That Court has connected the applicability of the Fourth Amendment to the existence of a "reasonable expectation of privacy." (5) The Fourth Amendment does not protect the person who lacks that requisite reasonable expectation. For example, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." (6) If there is no Fourth Amendment "reasonable expectation of privacy" in a given situation, the Fourth Amendment cannot apply. The conformity amendment makes that same Fourth Amendment standard--a "reasonable expectation of privacy"--applicable to cases involving searches and seizures in Florida.

   In at least two instances, the Florida Supreme Court has, after the effective date of the conformity provisions of section 12, applied section 23, Florida's right of privacy provision, in a search and seizure context without, in one instance, even mentioning section 12. In the other instance, it only gave section 12 a passing reference in a note. In those two cases, Winfield v. Division of Pari-Mutuel Wagering (7) and Shaktman v. State, (8) the factual situations were such that there existed no reasonable expectation of privacy under the precedent of the U.S. Supreme Court. (9) Thus, the Fourth Amendment was inapplicable, as was section 12 because of the conformity amendment. Thus, the court's use of section 23 in Winfield and Shaktman may be explained with the argument that, when section 12 is inapplicable because there is no "reasonable expectation of privacy," then section 23 cannot "modify [its] applicability." (10) Therefore, the Hume prohibition, quoted above, against using section 23 in search and seizure cases is inapplicable.

2. THE GENESIS OF THE CONFORMITY PROVISIONS

   The apparent genesis of the conformity provisions of section 12 (11) can be largely traced to two cases--one federal and one state.

   1. Federal

      In United States v. Leon, (12) the Supreme Court for the first time created a "good faith" exception to the Fourth Amendment's judicially manufactured exclusionary rule. (13) In Leon, the court "conclude[d] that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant [could not] justify the substantial costs of exclusion." (14) It could be argued, with considerable force, that this common sense exception to the exclusionary rule would benefit society by ensuring more effective law enforcement.

      The Florida Legislature was certainly of this view. (15) The legislature feared, however, that the absolute nature of the preconformity amendment language in section 12 would discourage Florida courts from establishing

      a good faith exception to the exclusionary rule. (16) In fact, the legislature reasoned that the language of section 12 would preclude the Florida Supreme Court from either recognizing what would become the Leon "good faith" exception or creating a similar exception under section 12. A Florida House of Representatives report stated, "[d]espite [the pre-Leon] efforts of the United States Circuit Court of Appeals for the Fifth Circuit (17) and the United States Supreme Court (18) to recognize a 'good faith' exception to the 'exclusionary rule,' it is unlikely that the Florida courts will soon adopt a similar rule." (19)

   2. State

      By 1981, the United States Supreme Court had held several times--both before and after Katz v. United States (20) was decided--that a person engaged in a conversation was not entitled to Fourth Amendment protection against the "seizure" of his words and their use against him. This rule held true, even if the conversation partner was carrying a concealed microphone and the conversation was transmitted to another person and/or was recorded. (21)

      In the face of this, in 1981, the Florida Supreme Court held, in State v. Sarmiento, (22) that it would not follow that precedent, (23) but would instead interpret section 12 to find that such police procedures amounted to an illegal search and seizure. (24) The reaction of the Florida Legislature was not long in coming. In advocating for the search and seizure aspect of the conformity amendment to section 12, the legislature reported:

      Many law enforcement officials and the sponsor of this bill feel that the Sarmiento case unreasonably restricted the ability of officers to gather evidence. Prior to this opinion it was standard operating procedure for an undercover officer to wear an electronic "bug" on his body and simultaneously transmit the conversation he was having while an illegal transaction occurred in the person's home or elsewhere. (25) Thus, it can be reasonably assumed that the Legislature's concern with the "good faith exception" problem led to the "conformity amendment" of the section 12 exclusionary rule, while Sarmiento led to the search and seizure provision of the "conformity amendment." (26)

3. THE ARTICLE I, SECTION 12, SECTION 23 PROBLEM

   The struggle to use section 23 in lieu of the now substantially unusable section 12 (27) can be said to have begun in Hume with the above quoted words: "[w]e also agree with the state that our right-of-privacy provision, article I, section 23, of the Florida Constitution, does not modify the applicability of article I, section 12, particularly since the people adopted section 23 prior to the present section 12." (28)

   Justice Barkett's rather imaginative dissent in Hume began with the argument that, unlike the Fourth Amendment, section 12 contains language protecting "against the unreasonable interception of private communications by any means." (29) Because of this language, she argued that Fourth Amendment jurisprudence, as developed by the Supreme Court, was not dispositive in the Hume case. Rather, the Florida court was required to adhere to the jurisprudence of the stricter Florida doctrine. (30) Perhaps recognizing the weakness of this argument, (31) she then quickly turned her attention to section 23, the privacy provision. (32) Barkett argued that section 23 provides the citizens of Florida additional privacy rights above those that derive from United States Supreme Court jurisprudence via the conformity amendment to section 12. (33) She seemed to argue, on this point, that section 23 has "no counterpart in federal law." (34) Also, she argued that federal doctrines derived from the Fourth Amendment are not controlling because of the existence of section 23. Again her reasoning is somewhat murky, but presumably this is because of the "no federal counterpart" argument. What is clear is that neither of her section 23 arguments confront the Hume majority argument that section 23 "does not modify the applicability of article I, section 12." (35) Perhaps the most that can be said of her dissent regarding the applicability of section 23 in search and seizure cases is that it reflects her vision of how it should be applied. (36)

   Thus, the majority opinion in Hume, bolstered by the Fourth District Court of Appeal's decision in Madsen, (37) had seemingly destroyed any chance of using section 23 in search and seizure cases. At the time of the Hume decision, the only things pointing toward a different rule were Justice Barkett's dissent in Hume and Division of Pari-Mutuel Wagering v. Winfield, (38) which used section 23 in a search and seizure context without discussing the problems that might be stirred up with respect to the conformity amendment.

   Subsequent to Hume, however, the Third District Court of Appeal decided Shaktman v. State. (39) Its opinion can be charitably described as a model of obfuscation. After recognizing, perhaps somewhat reluctantly, the effect of the conformity amendment, (40) the court then turned its attention to section 23. (41) That discussion began with the rather startling statement that the appellants' argument--that the pen register search violated section 23--presented a question of first impression. (42)

   Having thus provided a basis for a discussion of section 23, the district court explored, at some length, the nature and scope of that section. (43) This exploration, not surprisingly, led the court to conclude that section 23 "clearly applie[d]" to pen register cases. (44) That conclusion necessarily led the court to "address the interrelationship between" sections 12 and 23. (45) After attempting to establish that section 23, at least in theory, could reach a search and seizure situation, (46) it had to confront the supreme court's statement in Hume that section 23 could not "modify the applicability" of section 12. (47)

   The court also had to recognize what its sister district court said in Madsen v. State, (48) a case that, like Hume, involved the electronic interception of a conversation between a suspect and an officer who was wired for sound. (49) As described by the court in Shaktman, the Fourth District in Madsen opined that applying the privacy right embodied in section 23 to this factual situation would "effectively nullify" the conformity amendment. (50)

   The Third District in Shaktman also made reference to Adams v. State, (51)...