It could have been a script for "Alfred Hitchcock Presents." Earvin Herman Trimble (also known as Dr. Michael Anthony Phillips) had set himself up as a psychologist and marriage counselor in a Fort Lauderdale office building. On the afternoon of July 6, 1982, a client found him dead on the floor of his office.
The police discovered a tape recorder in a closed drawer of the victim's desk. It was visible only when the drawer was open. On the tape were two conversations between Trimble and a visitor. On the first, Trimble could be heard telling the other man that he was backing out of a bingo operation the two had agreed to launch. The second conversation began as an argument between Trimble and the same visitor about the cancelled business deal. Suddenly there were the sounds of a gun being cocked, five gunshots, groans, the gushing of blood, a body falling on the floor and one set of departing footsteps.
A detective listened to the voice of the visitor on the tape, and on the basis of certain leads, went to see Anthony Inciarrano. The detective told Inciarrano that the voice of the second man on the recording sure sounded like him. In a 1982 hearing, Inciarrano agreed that he was indeed on the tape, but he moved to have the recording suppressed because it had been made without his consent. Without the tape, the prosecution would have no case because it was the only evidence linking Inciarrano to the murder.
In 1974, the Florida legislature had provided the state's citizens with an admirably strong protection against invasion of their privacy by anyone intercepting wire or oral communications without the consent of all parties. Such interception is unlawful, and its results cannot be used in evidence (there are exceptions for police and their informers).
Inciarrano's lawyers pointed out that "the victim, Trimble, without the consent of the defendant, gained control of the conversation between himself and the defendant by recording it surreptitiously on a tape recorder." The murder victim had broken the privacy law; the tape should be thrown out.
For several years, Inciarrano has been following this debate over his privacy rights from a prison cell. In April 1983, he pleaded no contest to the murder indictment and was sentenced to life imprisonment -- or, rather, a mandatory minimum sentence of 25 years. As part of the plea, however, he specifically reserved his right to appeal the denial by the trial court of his bold thesis that he should be let free because his victim violated his privacy rights.
The appeals have been going on ever since. The trial judge had ruled Inciarrano had no expectation of privacy under these brutal circumstances. ("Surely the legislature did not consider this situation when it forbade one-party recording.")
The Fourth District Court of Appeals reluctantly disagreed. Those judges felt constrained by an earlier Florida court decision, which held that the legislature meant what it said in the privacy statute, and it is not the function of the court to question the wisdom of the legislature.
The next step was the Supreme Court of Florida. Joy Shearer, arguing for the state, had maintained all along that "the legislature certainly did not contemplate or intend for a murderer to go free simply because he did not consent to his victim taping the murder." Melvyn Schlesser, for the defendant, answered that the privacy law is clear and that unlawfully obtained though damaging evidence is often suppressed, leading to the release of a defendant. "Such is the way in a system ruled by law," he said.
A majority of the Supreme Court of Florida has now ruled against Inciarrano, holding that the defendant did not have a reasonable expectation of privacy after all, he was in the room to commit a crime. This led to a spirited dissent from Judge Raymond Ehrlich. The reason Inciarrano had no lawful expectation of privacy, Ehrlich said, was not because he was engaged in criminal behavior. Inciarrano had no right to privacy because he was in somebody else's office, not his own, and he was there voluntarily communicating to someone who "no more 'intercepted' the conversation than he 'intercepted' the bullets that ended his life."
On the other hand -- and this is where Judge Ehrlich made a crucial point that eluded the other judges -- "to hold, as the majority does, that the commission of a criminal act waives a privacy right requires an entirely new legal definition of privacy rights, which would, in turn, shake the foundation of Fourth Amendment analysis.
"Police (then would) have the right and duty to intrude without a warrant into a bedroom where the owner/resident is smoking marijuana." Their reason would be "that the Fourth Amendment protection has 'gone up in smoke.'