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

Article excerpt

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)

I. 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.

II. 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.

A. 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. …