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Eavesdropping By Cops Does Not Pay Off In Florida Courtrooms

The 4th DCA (District Court of Appeals) recently affirmed a lower court’s evidentiary ruling, which may have far reaching exclusions on statements a defendant makes to third parties, when the statements are overheard by others, including Law Enforcement Officer. See, State v. Topps, at 3730009 WL 4th DCA 2014. The issue on appeal in State v. Topps, was a case of first impression for a Florida court to decide, and the question posed was: “may a law enforcement officer testify about a conversation overheard between an arrestee he is guarding and the psychotherapist treating that person?”

The Appellate court found that because the person in custody did not waive the confidentiality of any privilege that the arrestee has with his doctor, and because the arrestee was in custody, and because the Law Enforcement Officer was present and on duty, when the privileged conversation occurred, then the conversation cannot come into evidence as against the accused.

The facts of the case are that Avery Topps was charged with animal cruelty for stabbing to death a dog. After Topps stabbed the dog to death, he attempted to admit himself into a hospital. The eavesdropping deputy arrived at the hospital to arrest Topps. The deputy remained in the room where Topps was placed and questioned by his treating emergency room doctor. As is customary, the treating emergency room doctor asked Topps what brought him to the hospital? Topps told the doctor in the presence of the Law Enforcement Officer that he stabbed his dog. The quick witted, eavesdropping deputy, made quick note of the patients’ statements and used them against him to effectuate the felony criminal charges of animal cruelty.

Prior to trial, Topps made a motion in limine to exclude the eavesdropping dropping deputy from testifying to what he heard as between a doctor and his patient. The trial court agreed with Topps and the Appellate court affirmed.

The reasoning of the appellate court for keeping out the statements overheard by the eavesdropping deputy are the deputy was there as a show of force to protect the hospital staff, to maintain custody of the felonious dog killer and because of section 90.503 of Florida General Statutes that allows a patient to speak freely with his or her psychotherapist and to have the conversation remain confidential. Here, Topps did not intend to disclose the information to anyone beyond the doctor or deputy, whose presence helped facilitate the examination of Topps and was required.

This ruling in Topps, by the 4th DCA, cuts across the grain in Florida because the general rule is that the testimony of a third party who overhears a confidential communication is admissible in Florida’s courts. So, instead of the general rule being applied as was articulated in Proffitt v. State, 315 So. 2d 461, 464 (Fla. 1975); that allows a third party to testify, over the accused’s trial objection, when a third party is made presence to a confidential communication, this reasoning in Topps changes things for Florida courtrooms.

“The Topps court reasoned that a communication is confidential if made in the interest of treatment by the psychotherapist and not intended for general dissemination to the third party or others.” This reasoning can also be seen when a criminal client is speaking to a lawyer in a jail holding cell or in a courtroom setting and the conversation is overheard by an eavesdropper. Can the privilege be extended to a drunk driver, whose statements are being made to a medical professional at the scene of a crash, regarding how much alcohol or drugs the driver ingested? Can the privilege be extended to an accountant regarding tax fraud of the client?

To determine the above answers, I believe a court must consider the legislative history of the privilege at issue, a court must consider whether, in light of all the surrounding circumstances and particularly the occasion for the presence of the third person, was the communication intended to be confidential. But remember generally speaking in Florida, the law does not recognize communications made in the presence of third parties, whose presence are known to the defendant, from remaining privileged as only between the parties.

If you or a loved one is seeking a legal help for a criminal trial or criminal appeal contact West Palm Beach Criminal Trial and Appellate Attorney Andrew D. Stine. Palm Beach Attorney Andrew D. Stine has conducted tens of felony, misdemeanor and DUI trials; and tens of criminal, civil and administrative appeals since 2003. Hire Stine or Do the Time.

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