Criminal law — Search and seizure — Intercepted communications — Wiretaps — Under Florida law, statewide prosecutor is deemed principal prosecuting attorney for state and may authorize applications for wiretaps — Motions to suppress information gathered on defendant and codefendant from wiretap of defendant’s phone, on grounds that statewide prosecutor did not have authority to authorize application for wiretap, are denied
STATE OF FLORIDA, v. LASONYA SAVAGE and DELMETRICE ROGERS, Defendants. Circuit Court, 2nd Judicial Circuit in and for Leon County. Case No. 2021-CF-776. March 1, 2025. Lance E. Neff, Judge. Counsel: Guillermo Vallejo, Special Assistant State Attorney, Office of Statewide Prosecution, Tallahassee, for State. Kristian Dunn, Law Office of Kris Dunn, P.A., Tallahassee, for Defendants.ORDER DENYING THE MOTIONS TOSUPPRESS AND GRANTING THEMOTION FOR RECONSIDERATION
This matter is before the Court upon the Defendant Savage’s Motion to Suppress filed on November 4, 2024. After a response from the State, a hearing was held on December 10, 2024. After an hour-long hearing, questions remained. Therefore, I requested supplemental briefing from the parties. That supplemental briefing has been provided. Within its supplemental briefing, the State renewed its request for this Court to reconsider a prior order issued by the previous judge assigned to the case which granted Defendant Rogers’ Motion to Suppress. For the reader unversed in this saga, I will provide a brief history of the case thus far.
I. Brief synopsis of the case to date
Ms. Savage and Mr. Rogers are co-defendants in this case. In 2021, a wiretap was sought for Mr. Rogers’ phone. The process for that wiretap application occurred as follows. A special agent with the Florida Department of Law Enforcement requested permission from the Statewide Prosecutor, Nicholas Cox, for authorization to apply for a wiretap from a judge in the Second Judicial Circuit. Authorization from the Statewide Prosecutor was given on February 15, 2021. The special agent applied for, and received, an order approving a wiretap for the phone number associated with Mr. Rogers. Subsequently, a case was developed against Mr. Rogers and Ms. Savage based on the information law enforcement learned from the wiretap.
When Mr. Rogers moved to suppress the information against him obtained through the wiretap on his phone, Mr. Rogers’ sole reason for the suppression was that the wiretap was illegally approved. Specifically, Mr. Rogers relied upon 18 U.S.C. § 2516(2), a provision in the Federal Wiretap Act, which authorizes two categories of individuals to apply to State courts for orders authorizing wiretaps: (1) the “principal prosecuting attorney of any State” or (2) the “principal prosecuting attorney of any political subdivision thereof.” Mr. Rogers, based on this federal law, asserted that only two people in Leon County are authorized to approve the filing of an application for a wiretap: the Attorney General and the State Attorney for the Second Judicial Circuit. The State responded to this argument by claiming that the Statewide Prosecutor was authorized to make wiretap applications to State courts under the Federal Wiretap Act because he is the principal prosecuting attorney of a political subdivision. The previous judge on this case found that the Statewide Prosecutor was not a principal prosecuting attorney of any political subdivision of the State. The First District Court of Appeal affirmed that decision in State v. Rogers, 391 So. 3d 661 (Fla. 1st DCA 2024) [49 Fla. L. Weekly D1580c]. However, the appellate court’s holding was confined to the issue of whether the Statewide Prosecutor was a principal prosecuting attorney of a political subdivision of this State. No other issue was properly before the First District Court of Appeal. Id. at 667 (“As such, the State’s argument that the Statewide Prosecutor is Florida’s principal prosecuting attorney is not properly before us in this appeal.”).
While the appeal was pending, the previous judge assigned to this case in the circuit court rotated to another division and I took over the case. Shortly after the First District Court of Appeal made its decision, the State requested reconsideration in this Court. In the motion, the State requested that I reconsider the order of the previous judge under the new theory that the Statewide Prosecutor was the principal prosecuting attorney of the State. On August 19, 2024, I declined to entertain the motion from the State. At that time, I did not believe there was an adequate reason to reconsider the issue.
Encouraged by the success of her co-defendant, on November 4, 2024, Ms. Savage moved to suppress the phone calls she made to Mr. Rogers which were intercepted under the wiretap that had been authorized on his phone. Her theory is that if the wiretap approved for Mr. Rogers’ phone was illegally requested, then any of her phone calls to Mr. Rogers’ phone were obtained without a lawful wiretap and should be suppressed as well.
Thus, the issue currently before the Court is whether the information gathered from the wiretap on Mr. Rogers’ phone which relates to Ms. Savage should be suppressed. In order to make that determination, the Court must reassess the wiretap as it pertains to Mr. Rogers since Ms. Savage’s entire theory of suppression rests on the legality of the wiretap of Mr. Rogers’ phone. This is required because the determination of Ms. Savage’s motion, and the State’s response thereto, necessitates that I evaluate the legality of Mr. Rogers’ wiretap under a different theory, i.e., whether the Statewide Prosecutor is the principal prosecuting attorney of the State. If the wiretap of Mr. Roger’s phone was legitimate under that theory, then Ms. Savage’s motion is without a foundation. This is an adequate reason to reconsider the issue. Therefore, I am GRANTING the State’s renewed Motion for Reconsideration.1
Much ink has been devoted to briefing these motions. While I appreciate this effort by the parties, my review of the materials made clear that the matter is not complex if one carefully reviews the development of the State and federal law in this area. To clarify the law surrounding this issue, I will start where all good and proper analysis should begin, with the words of the texts in dispute. Therefore, I will begin my analysis by reviewing and discussing the pertinent federal and State wiretap statutes. Next, I will examine what my judicial brethren in the federal courts have to say regarding which State-level entities may authorize an application for a wiretap under the federal wiretap statute. I will then review Florida constitutional and statutory text to determine who Florida deems to be the principal prosecuting attorney of the State. Finally, I will discuss two State law cases to determine what the Florida Supreme Court and the First District Court of Appeal have held regarding this issue.
II. The interplay between the State and federal wiretap statutes and how that interplay impacts who may authorize a wiretap application under State law
It is well established that an attempt to monitor telephone conversations must comport with constitutional proscriptions. Katz v. United States, 389 U.S. 347, 353 (1967). To ensure more extensive protection of communications privacy, Congress enacted legislation that controls the use of electronic surveillance. 18 U.S.C. § 2510 et seq. This statutory scheme contemplates State regulation that does not erode the federal standards, 18 U.S.C. § 2516(2), and Florida has enacted such legislation. Section 934.01 et seq., Fla. Stat. The Florida Supreme Court has held that Florida’s wiretap statute must be strictly construed and narrowly limited in its application in accordance with the specific provisions set out by the Legislature. State v. Rivers, 660 So. 2d 1360, 1362 (Fla. 1995) [20 Fla. L. Weekly S315a].
As it pertains to which State-level entity is the principal prosecuting attorney of the State, I will start with the words of 18 U.S.C. § 2516(2). This federal law states in pertinent part:
The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made[.]
18 U.S.C. § 2516(2). This statute plainly asserts that the principal prosecuting attorney of any State, if authorized by State statute, may apply to a State court for an order authorizing or approving a wiretap by the investigative or law enforcement officers having responsibility for the investigation.
Consequently, in accordance with this provision of federal law, what positions are authorized to apply for a wiretap under the Florida analog to the federal wiretap statute? Section 934.07(1) states, “The Governor, the Attorney General, the statewide prosecutor, or any state attorney may authorize an application to a judge of competent jurisdiction for, and such judge may grant in conformity with ss. 934.03-934.09 an order authorizing or approving the interception of, wire, oral, or electronic communications[.]” Thus, it seems as if the Florida Legislature has designated three State-level entities2 with the power to authorize an application for a wiretap, evocative of the First Triumvirate of Rome. However, may Florida authorize more than one high-level entity to approve wiretap applications?3 Federal courts construing federal wiretap law have weighed in on this matter and have answered in the affirmative.
Federal appellate courts, in a couple of interesting analyses about the interplay between the Florida and federal wiretap statutes, have determined that Florida has wide latitude regarding what entities it may designate to authorize an application for a wiretap. In the first case, the pre-1981 Fifth Circuit Court of Appeals4, which covered Florida at that time, agreed that State law controls when determining what State entity has the power to authorize applications for wiretaps. In United States v. Pacheco, 489 F.2d 554 (5th Cir. 1974), the Governor of Florida authorized an application for a wiretap and that authorization was challenged on the ground that the Governor was not the principal prosecuting attorney. Id. at 562. The Fifth Circuit stated, “The purpose of including this requirement in the federal statute was not to designate a particular officer by name or title but to ensure the centralization of policy decisions of this type at the highest practicable levels, preferably on a statewide basis.” Id. For support, the court cited a United States Senate report which noted, “The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. Who that officer would be would be a question of State law.” Id. The Pacheco court held:
The determination that is to be made by the state official designated in accordance with the federal statute is whether a particular proposed use of monitoring techniques is consistent with the state’s overall policy in this area. In such matters of policy, the governor represents the state and is superior to all prosecuting attorneys of the state. Florida’s designation of its governor to determine the propriety of applications for federal interceptions comports fully with the federal requirements and ensures the safeguards for which the statute is designed.
489 F.2d at 562-63. Thus, the Pacheco court determined that the designation of who may authorize an application for a wiretap is a matter of State law and should not be disturbed as long as the State’s designations are entities which make statewide policy. See also United States v. Lanza, 341 F. Supp. 405, 411 (M.D. Fla. 1972) (“Florida’s designation of its Governor to determine the propriety of applications for monitoring complies fully with the federal requirements and ensures the guarantees the statute intends to preserve.”).
In the second federal appellate case, the then recently formed Eleventh Circuit followed up the Pacheco decision in 1985 stating that both the Governor of Florida and the Attorney General of Florida had the authority to authorize wiretap applications under the federal statute. As the Eleventh Circuit stated in U.S. v. Domme, 753 F.2d 950 (11th Cir. 1985):
The Pacheco court did not hold, however, that the Governor is the principal prosecuting attorney of the State of Florida. Rather, the court simply recognized that a State’s Governor, being its chief executive officer, is ultimately responsible for setting statewide policy in most areas. See id. at 562 n. 14 (the issue in this case is whether the Attorney General’s superior can approve wiretap applications). Thus, the inclusion of the Governor in the Florida wiretap statute was perfectly consistent with Congress’s purpose to centralize the responsibility for wiretap authorization.
In short, the Attorney General remains the principal prosecuting attorney of the State of Florida, and therefore may authorize wiretap applications under the federal statute. The appellants in the instant case received all of the protection required by the express terms of the federal statute, and have no standing to challenge the fact that Florida, and this court’s predecessor, have acknowledged the Governor’s authority to approve wiretap applications. We therefore conclude that the federal statute was complied with in this case and we reject the argument that Pacheco requires us to reverse the appellants’ convictions.
Domme, 753 F.2d at 956-57. Thus, the Pacheco and Domme decisions stand for the proposition that Florida has broad authority regarding who it may designate to apply for authorization for a wiretap.5 While these federal decisions apply questionable textual analysis, the decisions tacitly affirm comity and State sovereignty. And since federal case law supports Florida’s sovereign choice of which entities are designated under State law to authorize an application for a wiretap, the next question is whether the Statewide Prosecutor is the principal prosecuting attorney under State law.
After the Pacheco and Domme decisions were decided, the People of this State passed an amendment to the Florida Constitution in 1986 adding the position of the Statewide Prosecutor.6 Today, Article IV, Section 4 of the Florida Constitution states the following:
The attorney general shall be the chief state legal officer. There is created in the office of the attorney general the position of statewide prosecutor. The statewide prosecutor shall have concurrent jurisdiction with the state attorneys to prosecute violations of criminal laws occurring or having occurred, in two or more judicial circuits as part of a related transaction, or when any such offense is affecting or has affected two or more judicial circuits as provided by general law. The statewide prosecutor shall be appointed by the attorney general from not less than three persons nominated by the judicial nominating commission for the supreme court, or as otherwise provided by general law.
FL. CONST. art. IV, §4(b). Here, the primary legal document of this State, in the spirit of subsidiarity, gives the Statewide Prosecutor the power to prosecute criminal cases where the criminal acts are occurring or have occurred in two or more judicial circuits. Thus, by definition, the Statewide Prosecutor could prosecute criminal acts which occur in two judicial circuits, across several judicial circuits, or statewide. See also, e.g., section 812.015(10), Fla. Stat. This jurisdictional authority, as the name “Statewide Prosecutor” suggests, is certainly broader that what state attorneys are provided under State law. The various state attorneys are generally confined to pursue acts occurring solely within their judicial circuit. Section 27.02(1), Fla. Stat.; see also section 27.14, Fla. Stat. And although each state attorney has concurrent jurisdiction with the Statewide Prosecutor to investigate and prosecute crimes in his or her judicial circuit, the Statewide Prosecutor, as a singular entity, has the jurisdiction to investigate and prosecute crimes in all judicial circuits as long as the crimes committed are of a particular type7 and are committed across more than one judicial circuit. Thus, on the hierarchy of prosecuting attorneys in the State, the Statewide Prosecutor has broader jurisdictional authority than state attorneys. But does that make the Statewide Prosecutor the principal prosecuting attorney of the State rather than the Attorney General, who is the chief legal officer of the State?
Fortunately, the Florida Legislature has given us more guidance regarding that question. Section 16.56 of the Florida Statutes puts forth the specific legal authority for the Office of Statewide Prosecution. Section 16.56(2) has a telling provision:
(2) The Attorney General shall appoint a statewide prosecutor from not less than three persons nominated by the judicial nominating commission for the Supreme Court. The statewide prosecutor shall be in charge of the Office of Statewide Prosecution for a term of 4 years to run concurrently with the term of the appointing official. The statewide prosecutor shall be an elector of the state, shall have been a member of The Florida Bar for the preceding 5 years, and shall devote full time to the duties of statewide prosecutor and not engage in the private practice of law. The Attorney General may remove the statewide prosecutor prior to the end of his or her term. A vacancy in the position of statewide prosecutor shall be filled within 60 days. During the period of any vacancy, the Attorney General shall exercise all the powers and perform all the duties of the statewide prosecutor. A person appointed statewide prosecutor is prohibited from running for or accepting appointment to any state office for a period of 2 years following vacation of office. The statewide prosecutor shall on March 1 of each year report in writing to the Governor and the Attorney General on the activities of the office for the preceding year and on the goals and objectives for the next year.
(emphasis added). The emphasized provision in this section demonstrates that it is the Statewide Prosecutor alone who is bestowed the power to prosecute crimes at the State, i.e., multi-judicial circuit, level. Only when there is a vacancy of the Statewide Prosecutor does the Attorney General take on the responsibility of multi-judicial circuit prosecutions. A review of Chapter 16 of the Florida Statutes as a whole, and section 16.56 particularly, confirm that criminal investigatory and prosecutorial responsibility at the statewide level has been assigned to the Office of Statewide Prosecution.8 Thus, as a matter of deductive reasoning based on the Florida Constitution and the Florida Statutes, the Statewide Prosecutor is the principal prosecuting attorney of the State. That power has been delegated to the Statewide Prosecutor from the chief legal officer of the State, the Attorney General, pursuant to the requirements of the Florida Constitution and general law.
Lastly, does anything in my analysis conflict with State v. Daniels, 389 So. 2d 631 (Fla. 1980), or Daniels v. State, 381 So. 2d 707, 715 (Fla. 1st DCA 1979)? In the Daniels case at the First District Court of Appeal, the court reviewed whether an assistant state attorney was authorized to apply for a wiretap. The First District Court of Appeal held:
[T]he applicable federal statute is preemptive and a careful reading of that statute can only lead to the conclusion that the “principal prosecuting attorney” authorized by 18 U.S.C. s 2516(2) to make application for an order authorizing or approving the interception of wire or oral communications cannot be construed to include an assistant state attorney.
Daniels v. State, 381 So. 2d 707, 715 (Fla. 1st DCA 1979). The First District Court of Appeal, upon petition for rehearing, certified the following question to the Florida Supreme Court:
Does Title 18 U.S.C. Section 2516, requiring application by the “principal prosecuting attorney” for an order authorizing or approving the interception of wire or oral communications, preclude the exercise of that power by a general class of prosecutors who are assistant state attorneys in Florida?
Daniels v. State, 381 So. 2d 707, 719 (Fla. 1st DCA 1979).
The Florida Supreme Court, in answering the certified question, reviewed the State and federal wiretap statutes as well as cases discussing those statutes. The 1975 version of section 934.07, the version under review by the Florida Supreme Court in Daniels, allowed for the Governor, the Department of Legal Affairs, or any State Attorney to authorize an application for a wiretap. Daniels, 389 So. 2d at 633. The position of assistant state attorney was not specifically named in the Florida wiretap statute as an entity which could authorize an application for a wiretap. However, the State argued that because another statute outside of the Florida wiretap statute — section 27.181(3), Fla. Stat. (1975) — allowed for a State Attorney to delegate authority to an assistant state attorney, it did not matter that the entity was not specifically listed in section 934.07. After review of State and federal law, the Florida Supreme Court ultimately held:
Based on section 2516, its legislative history, and the Giordano decision, we conclude that section 27.181(3), Florida Statutes (1975), cannot be held to empower assistant state attorneys to authorize applications for electronic eavesdropping orders. This is so for two reasons. First, Congress intended such authority to be limited to a narrow class of officials to ensure that such decisions come from a centralized, politically responsive source. Second, the officials who may exercise this power must be specifically enumerated in the authorizing statute. Our statute granting assistant state attorneys all the powers of state attorneys generally is not a specific grant of authority to authorize electronic surveillance applications.
State v. Daniels, 389 So. 2d 631, 636 (Fla. 1980).
Nothing in my analysis above is inconsistent with the specific holdings of the Florida Supreme Court or the First District Court of Appeal. I agree that a lower-level State official not specifically named in section 934.07(1) is without authority to authorize an application for a wiretap. However, the Statewide Prosecutor, a high-level State official, is explicitly named in section 934.07(1). Thus, I am strictly construing and narrowly limiting the specific provisions of Florida’s wiretap statute as set out by the Legislature. State v. Rivers, 660 So. 2d 1360, 1362 (Fla. 1995) [20 Fla. L. Weekly S315a]. I am also following the decisions of federal courts construing the federal wiretap statute when I acknowledge that the Governor of Florida and the Attorney General of Florida may also authorize an application for a wiretap since both are specifically named in the Florida wiretap statute and both are high-level officials responsible for setting statewide policy. Finally, I am following the sovereign will of the People of Florida who changed their Constitution in 1986 to establish the position of Statewide Prosecutor as the principal prosecuting attorney of Florida.
III. Conclusion
As laid forth above, Florida law deems the Statewide Prosecutor as the principal prosecuting attorney of this State. Federal law defers to State law to determine who may be designated the principal prosecuting attorney of the State. And Florida law delegates that responsibility, per its Constitution, to the Statewide Prosecutor. However, because the Statewide Prosecutor’s authority is delegated from the Attorney General, the Attorney General, as the chief legal officer of the State, may also authorize wiretap applications. Similarly, because the Governor is the “supreme executive power” of this State per the Florida Constitution, see FL. CONST. art. IV, §1, the Governor, too, may authorize wiretap applications. Federal case law fully supports this triumvirate of authorized persons because each person is responsible for setting statewide policy and because allowing these entities such authority is consistent with Congress’s purpose to centralize the responsibility for wiretap authorization. Domme, 753 F.2d 950, at 956-57; see also Pacheco, 489 F.2d at 562-63. In short, the designation of the Governor, the Attorney General, and the Statewide Prosecutor as State-level positions which may authorize an application for a wiretap is fully supported by a specific provision of the Florida wiretap statute and is fully consistent with the federal wiretap statute as interpreted by the federal courts. Accordingly, Mr. Rogers’ Motion to Suppress and Ms. Savage’s Motion to Suppress are DENIED.
While this Court scheduled a follow-up hearing on March 26, 2025, I do not need any further guidance from the parties to decide this matter. The March 26, 2025 hearing is CANCELLED. The parties have received an abundance of due process and opportunity to be heard regarding the central issue of whether the Statewide Prosecutor is the principal prosecuting attorney of Florida.9 It is more important to decide the pending motions and to get this case moving again, particularly since the case is likely going back to the First District Court of Appeal.
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1On, February 4, 2025, Defendants Savage and Rogers moved to quash the renewed Motion for Reconsideration filed by the State. While the Defendants assert res judicata and collateral estoppel prevent me from reconsidering the prior decision of this Court, I disagree. In order to decide Ms. Savage’s Motion to Suppress, I must reconsider the propriety of the authorization given by the Statewide Prosecutor under the alternate theory now being proposed by the State. The issue of whether the Statewide Prosecutor is the principal prosecuting attorney of this State has not been decided in this case at the trial or appellate levels.
2As set forth below, the history of the interplay between State and federal law provides context for why these three positions are named in State law.
3Florida does greatly enjoy dividing power amongst several entities as can be seen in how our executive branch is structured. See generally FL. CONST. art. IV. And because federal law does not define “principal prosecuting attorney,” but leaves that for the States to decide, this Court should rule in a manner that maximizes State sovereignty in accordance with the Tenth Amendment of the United States Constitution. See, e.g., New York v. United States, 505 U.S. 144, 157 (1992) (“The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power.”). While my counterparts on the federal bench often show low regard for State sovereignty, leading to overreach, the Tenth Amendment instead requires the maximization of State sovereignty as the Supremacy Clause and prudent judgment allow.
4The federal Eleventh Circuit Court of Appeals was created in 1981 when the former Fifth Circuit Court of Appeals was split into two parts. Florida, Georgia, and Alabama became the Eleventh Circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1210 (11th Cir. 1981) (en banc) (noting that decisions by the former Fifth Circuit issued before October 1, 1981, are binding as precedent in the Eleventh Circuit.).
5This sentiment has been echoed by at least one Florida judge who, citing Pacheco, asserted, “[t]he intent of Congress in enacting [18 U.S.C. § 2516(2)] [was] not to designate a particular officer by name or title, but to insure the centralization of policy decisions of this type. What officer or officers within the State are designated by the State to apply for authorization for wiretap is a matter of State law.” Daniels v. State, 381 So. 2d 707, 716 (Fla. 1st DCA 1979) (Booth, J., concurring in part and dissenting in part).
6In 1986, Amendment 1 passed with 72.8% of voters in favor of adding a position of Statewide Prosecutor to the Florida Constitution. See Florida Department of State, Division of Elections, November 4, 1986 General Election Official Results https://results.elections.myflorida.com/Index.asp?ElectionDate=11/4/1986&DATAMODE= (last visited February 25, 2025).
7The Florida Legislature has given the Office of Statewide Prosecution the authority to investigate and prosecute a wide variety of crimes. §16.56(1)(a), Fla. Stat.
8As another example, the Medicaid Fraud Control Unit “may refer any criminal violation so uncovered to the appropriate prosecuting authority.” § 16.59, Fla. Stat. For the criminal prosecutors within the Medicaid Fraud Control Unit to have the authority to prosecute Medicaid fraud in State courts, they must be cross sworn with a local state attorney if the crime occurred in a single judicial circuit or with the Office of Statewide Prosecution if the crime occurred across two or more judicial circuits.
9The parties were also provided an opportunity to argue at the December 10, 2024 hearing and to provide supplemental briefing on the issue of whether this Court is prevented from rehearing the decision regarding Mr. Rogers’ Motion to Suppress.