Shaktman v. State
1989 WL 120852, 553 So.2d 148 (1989)
Rule of Law:
Article I, section 23 of the Florida Constitution establishes a fundamental right to privacy that applies to the use of pen registers, requiring the state to demonstrate a compelling state interest and the use of the least intrusive means, including judicial approval based on founded suspicion, to justify such an intrusion.
Facts:
- Bernard Shaktman was a probationer from a prior bookmaking conviction.
- The Miami Beach Police Department received information from an undisclosed person that Shaktman was again engaged in similar criminal activity.
- On October 12, 1983, investigators physically surveilled Shaktman at a Miami Beach cafe, where they observed him conversing with petitioner Mart (known for gambling and bookmaking) and Norman Rothman (known to have a lengthy felony record).
- During this surveillance, Shaktman was overheard discussing illegal gambling activities.
- Physical surveillance was thereafter extended to petitioner Mart.
- On November 28, 1983, the circuit court approved the state's motion for a lease line for pen register operation on three instruments located in Mart's Miami Beach apartment.
- Pen register activity was provided from December 6, 1983, until January 17, 1984.
- The information obtained from the pen register, together with information from a concurrent investigation by the Metro-Dade Police Department, led to the filing of formal charges against the petitioners.
Procedural Posture:
- Petitioners (Bernard Shaktman et al.) were charged by information on November 13, 1984, with violations of the Racketeer Influenced and Corrupt Organization statute, conspiracy to violate that statute, bookmaking, and conspiracy to commit bookmaking.
- The circuit court (trial court/court of first instance) denied petitioners' consolidated motions to suppress evidence derived from the pen register and to dismiss the information.
- Petitioners appealed the circuit court's decision to the Florida Third District Court of Appeal (intermediate appellate court), which affirmed the circuit court's ruling.
- The Third District Court of Appeal then certified two questions of great public importance to the Supreme Court of Florida (highest court).
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
1) Does article I, section 23, of the Florida Constitution, which guarantees a right to privacy, apply when a law enforcement agency installs a pen register device on an individual's telephone? 2) If so, is the compelling state interest test satisfied when a law enforcement agency involved in the installation has founded suspicion of criminal activity and meets statutory criteria?
Opinions:
Majority - Barkett, Justice
Yes, Article I, section 23 of the Florida Constitution is implicated when a law enforcement agency installs a pen register device on an individual's telephone, and the compelling state interest test is satisfied in this case because the agency had founded suspicion and used the least intrusive means. The Court affirmed the district court's decision, emphasizing Florida's unique, strong, and freestanding constitutional right to privacy, adopted in 1980, which is broader in scope than the federal right. This right ensures individuals can control "when, how and to what extent information about them is communicated to others" and creates a "zone of privacy" into which the government cannot intrude without a compelling state interest. The Court found that telephone numbers dialed are personal information, and the act of dialing does not defeat one's expectation of privacy, even if the telephone company records the numbers for business purposes. Thus, pen registers intrude upon fundamental privacy interests, requiring the state to meet the compelling state interest test. This test demands that the state demonstrate two things: (1) a reasonable founded suspicion that the targeted telephone line was being used for a criminal purpose, and (2) that the least intrusive means were employed. In this case, law enforcement had reasonable founded suspicion due to information and surveillance activities. Regarding the least intrusive means, the Court held that judicial approval prior to the intrusion is a minimum procedural safeguard. Although the order did not explicitly set a time limit, the pen register was used for a period less than what was later statutorily authorized, and the court found no procedural violation.
Concurring - Ehrlich, Chief Justice
I concur. The Florida right to privacy under Article I, section 23 is intentionally broader than the federal standard, as evidenced by the deliberate omission of "unreasonable" or "unwarranted" from the text. This means the Florida right protects an individual's expectation of privacy whether or not society deems that expectation "reasonable." However, this does not mean any subjective expectation is protected; rather, it protects a "legitimate expectation of privacy," which is determined by considering all circumstances, particularly objective manifestations such as the type of information, where it is kept, who has access, and under what circumstances. The information gathered by a pen register—telephone numbers dialed—is personal and has limited access, similar to bank records, reinforcing the individual's legitimate expectation that it would not be released without authorization. Therefore, such information falls within the zone of privacy protected by the Florida Constitution.
Analysis:
This case significantly broadens privacy protections in Florida compared to federal standards, establishing that Florida's constitutional right to privacy (Art. I, § 23) applies to pen registers, a matter where federal law generally does not find a Fourth Amendment privacy interest. It reinforces the "compelling state interest" and "least intrusive means" test as the standard for any governmental intrusion into Florida's strong privacy right, even for less invasive surveillance techniques. This decision has a substantial impact on law enforcement practices in Florida, requiring judicial oversight and a higher evidentiary standard (founded suspicion) for pen register use than might be necessary under federal law, and sets a precedent for how other forms of governmental data collection might be scrutinized under the state's privacy clause.
