BIENNIAL REPORT OF THE ATTORNEY GENERAL 255

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1 e r e BENNAL REPORT OF THE ATTORNEY GENERAL 255 politan Development Act of 1966 (P.L ; 43 U.S.C )? 2. s the Florida Development Commission authorized to administer a statewide training and research program and to receive and spend federal funds under the provisions of' Title V, Part 1 of the Housing Act of 1964 (P.L ; 20 USC 801)? The legislature, in its 1967 Session, created the office of state planning under the state planning and budget commission. ( , F. S.) The office of state planning is mandated the responsibility and powers to coordinate all state planning and programming relative to "... housing and urban development;..." among other broad social programs, (2), F. S., to assist the federal government and any local, county, metropolitan or regional governmental agencies, (6), F. S., to accept and administer federal funds and to contract for the provision of services related thereto, (8), F. S., and even to utilize federal funds to contract for the provision of specialized services, , F. S. n fine, the legislature has invested the office of state planning, under the state planning and budget commission, with comprehensive responsibility and authority for such programs as would appear to be contemplated by the federal acts here in point. Although (16), and , F. S., antedating Ch. 23, F. S., do empower the Florida Development Commission to receive, administer and disburse federal funds, such authority would seem operative only when "the Legislature has not designated another state officer, board, bureau, commission, department, or agency in relation thereto..." (16), F. S. Yet, as stated, the legislature has obviously so designated the office of state planning under the state planning and budget commission. solicit your attention, further, to , F. S., which establishes procedures precedent to request for federal funds by any agency of the state government. i ~! April 19, 1968 To: ARREST WARRANTS POWER TO SSUE-CONSTRUCTON OF TERM "MAGSTRATE"-DEPUTY CLERK OF THE CTY OF BOCA RATON Malcolm Anderson, City Attorney, Boca Raton QUESTONS: 1. Does a deputy clerk of the court of the City of Boca Raton, who is not connected with law enforcement, have the authority to take affidavits charging violations of city ordinances and to issue arrest warrants upon the basis of such affidavits? 2. f the answer to question 1 is in the affirmative, does a deputy clerk of said court, who is also a city police officer, have the authority to take affidavits charging violations of city ordinances and to issue arrest warrants upon the basis of such affidavits? '1 '.1 i 11 i,. ;

2 256 BENNAL REPORT OF THE ATTORNEY GENERAL AS TO QUESTON 1: Chapter , Laws of Florida, amended 6.04 of the Charter of the City of Boca Raton to read as follows: The City Clerk shall, on recommendation of the Municipal Judge, designate a clerk of the Court and deputy clerks, who shall keep a record of all its proceedings, have the power to make certified copies of official papers of the Court, take affidavits, and issue warrants of arrest and subpoenas. (Emphasis The Fourth Amendment to the United States Constitution provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. n Giordenello v. United States, 2 L. Ed. 2d 1503, 1509, the U. S. Sup. Ct. said:... The language of the Fourth Amendment, that "... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing... the persons or things to be seized," of course applies to arrest as well as search warrants... (Emphasis n Johnson v. United States, 92 L. Ed. 436, 440, the U. S. Sup. Ct. said with respect to the Fourth Amendment: The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. ts protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. * * * (Emphasis understand the United States Supreme Court's pronouncements in Mapp v. Ohio, 6 L. Ed. 2d 1081, 1090; Ker v. California, 10 L. Ed. 2d 726, 736; and Aguilar v. Texas, 12 L. Ed. 2d 723, 726, as standing for the proposition that the Fourth Amendment, insofar as it concerns search and seizure, applies to the states through the Fourteenth Amendment. n view of its said pronouncements, apprehend that the United States Supreme Court would also apply the Fourth Amendment, insofar as it concerns arrest warrants, to state arrest warrants. As see it, there is no less reason why a neutral and detached magistrate should pass upon whether an arrest warrant is to be issued than there is for such a magistrate to pass upon whether a search warrant should be issued; a man should not be deprived of his personal liberty under an arrest warrant without observing safeguards equal to those which must be observed in order to obtain a search warrant to search his premises. [The United States District Court for the Southern District of Florida has applied the Johnson v. United States Fourth Amendment doctrine to a municipal arrest warrant (United States v. Melvin, 258 F.Supp. 252).J

3 BENNAL REPORT OF THE ATTORNEY GENERAL 257 Therefore, think that the Johnson standards are to be applied through the Fourteenth Amendment to state arrest warrants and that such a warrant may be issued only after a "neutral and detached magistrate" has weighed the evidence presented to him and has determined that it justifies the issuance of an arrest warrant. [t appears that municipal action under authority of state law is state action within the contemplation of the Fourteenth Amendment (see Lovell v. Griffin, 82 L. Ed. 949, 953), and therefore a municipal arrest warrant issued under authority of state statute is state action within the purview of said Amendment.] This brings us to a consideration of whether a deputy clerk of the Court of the City of Boca Raton, who is in no way connected with law enforcement, can be considered "a neutral and detached magistrate" as those words are used in the foregoing quotation from Johnson v. United States. think that he can be so considered because when, acting pursuant to the above-quoted 6.04 of the City Charter, he takes an affidavit and issues an arrest warrant, he performs the function of a magistrate and is a magistrate, although said 6.04 does not refer to him as a magistrate. t is said in 5 Am. JUl'. 2d 703, Arrest, 10, that: While the power to issue warrants is most frequently execused [sic] by justices of the peace and police magistrates, it can be conferred by statute on other officials. Although this power implies the power and duty to hear and determine probable cause, it is not such a judicial power that it cannot, for example, be conferred by statute on clerks of court. * * * (Emphasis The federal extradition law (now 3182, Title 18, USCA) has always prescribed that extradition of a fugitive from one state to another may be based upon an "affidavit made before a magistrate" in the demanding state, charging the demanded person with crime. Compton v. Alabama, 214 U.S. 1, involved extradition proceedings based upon an affidavit charging crime which had been made before a Georgia notary public. The United States Supreme Court held that said notary public was a magistrate within the meaning of the federal extradition statute because he was regarded as a magistrate under the law of Georgia. n its discussion of the meaning of the word "magistrate," the Court said:... n a general sense a magistrate is a public civil officer, possessing such power, legislative, executive or judicial, as the government appointing him may ordain. n a narrow sense, a magistrate is regarded-perhaps commonly regarded---":" as an inferior judicial officer, such as a justice of the peace. 2 Bouvier Law Die. 92. But the appellation of magistrate "is not confined to justices of the peace, and other persons, ejusdem generis, who exercise general judicial powers; but it includes others whose duties are strictly executive." Anderson's Dictionary of Law, 643, ~. (Emphasis n State v. McLeod (Fla.), 194 So. 628, the Supreme Court of Florida in effect held that an affidavit made before a deputy clerk of the City Court of Rochester, N. Y., was made before a magistrate within the purview of the federal extradition statute. The ruling was bottomed upon a New York statute which provided that:,. '. ; : 1'1 i1 J 1. 1 i'. ; ; /" m

4 z 258 BENNAL REPORT OF THE ATTORNEY GENERAL... The judges may appoint to hold office during their pleasure a clerk of the criminal branch of the city court, who is a confidential appointee of said judges, a deputy clerk, and such other subordinates as may be prescribed by the board of estimate.and apportionment. The clerk, the deputy clerk and other clerks appointed by the said judges each has power to take informations upon which warrants for the arrest of persons charged with the commission of a crime, or a violation of an ordinance, may be issued by the city judges;... (Emphasis n, People v. Britt (N.Y.), 92 N.Y.S.2d 662 (affirmed on appeal, 93 N.Y.S.2d 704), it was held that an ndiana Clerk of the Circuit Court, before whom the affidavit of the complaining witness in a criminal case was sworn to, was a magistrate within the meaning of the federal extradition statute. n dealing with the point, the New York court said (p. 666): t thus appears that, where the prosecution is by affidavit under the ndiana statutes, the prosecuting attorney is empowered to determine whether to file the charge and the clerk is authorized to issue the warrant thereon, in the absence of any direction by a court or judge. Under this procedure, the clerk functions as the magistrate. He issues the warrant of arrest. He is the only public official to whom the matter is presented by the prosecuting attorney in order to initiate the prosecution. t is obviously appropriate that the affidavits of the witnesses should be taken before the clerk and such affidavits are, in my opinion, affidavits "made before a magistrate" within the meaning of the Federal statute. (Emphasis Marks v. Eckerman (C.A.,D.C.), 23 F.2d 761, concerned the question of whether the clerk of a municipal court in Ohio was a magistrate under the federal extradition statute. The court said (p. 762) : By section of the Ohio Code a clerk of the municipal court is clothed with the powers and duties of a clerk of the police court. Section 459J,. of the Ohio Code clothes the clerk of the police court with authority to issue warrants of arrest and search warrants. That section reads in part 0,8 follows: "When an affidavit is filed with him (clerk) for a peace warrant, search warrant, or charging any person with the commission of an offense, the clerk of police court shall have power to issue a warrant under the seal of such court to arrest the accused or search the place described." (Emphasis * * * * * A municipal court clerk in Ohio, having the status there of a magistrate, will be so regarded here... (Emphasis n Ex Parte Noel (Ky.), 338 S.W.2d 903, , the Ky. Ct. of App. ruled that an Alabama circuit solicitor was a magistrate within the contemplation of the federal extradition statute, by reason of an Alabama statute providing that: Every circuit solicitor, deputy circuit solicitor, assistant deputy circuit solicitor, county or other solicitor by whatever name called within the circuit, county or other territory for. ~ '. ' 1 Ị; 1i

5 BENNAL REPORT OF THE ATTORNEY GENERAL 259 :al, uit a of ew )f n n which he is elected or appointed shall have the power to take oaths in support of complaints and to issue warrants in all criminal cases, provided, that such warrants shall be made returnable to a court having original jurisdiction of the offense charged. (Emphasis n Kreulhaus v. City of Birmingham (Ala.), 51 So. 297, , (not involving extradition), the Supreme Court of Alabama had the following to say as to who is a magistrate: The act creating the inferior court of criminal jurisdiction in the city of Birmingham conferred upon the clerk the power to issue warrants of arrest. t is argued that the issue of warrants of arrest is a judicial power, which can be conferred only upon a judicial officer. t implies the power and the duty to hear and determine the question of probable cause. The principle of this contention was long ago disposed of by the decisions of this court. n Ex Parte Gist, 26 Ala. 156, it was argued with great learning that the section of the judiciary act of the United States conferring power upon justices of the peace to arrest, imprison, or bail persons charged with a violation of the criminal law of the United States, was repugnant to the Constitution of the United States for the reason that it conferred judicial power upon one not an officer of the United States, whereas that Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and such other inferior courts as Congress may, from time to time, ordain and establish. This court, conceding that the power and authority conferred was judicial in its nature, held that it did not fall within the meaning of "judicial power" in the sense in which that term is used in the Constitution of the United States. And the court referred to the case of Gaines v. Harvin, 19 Ala. 491, where a similar provision in our Constitution came under review, and where it was held that it was not the intention of the framers of the Constitution to deny to the Legislature the power to confide to ministerial officers, who do not constitute a part of the judiciary, properly so called, many duties involving inquiries in their nature judicial. n the case referred to it was said: "The practice of this as of all other governments having their judicial, executive, and legislative departments separate and distinct very clearly shows that, in the administration of laws, inquiries partaking of the nature of judicial investigations are confided to persons other than judges, whose acts have never been questioned on constitutional grounds"-and more in the same line. The statute in this case conferred no power upon the clerk to finally hear and determine, nor even to commit to bail, but only to issue warrants, which must be construed to authorize him to issue warrants on probable cause, supported by oath or affirmation, and returnable, by necessary implication, to the court from which they are issued. We are not prepared to say that this was an unconstitutional exercise of power. n re Siebert, 61 Kan. 112, 58 Pac. 971; State v. Sureties of Krohne, 4 Wyo. 347, 34 Pac. 3; n re Durant, 60 Vt. 176, 12 At (Emphasis Also see Holloman v. State (Ala.), 74 So.2d 612; and Mahaley v. State (Ala.), 103 So.2d 824.

6 260 BENNAL REPORT OF THE ATTORNEY GENERAL Upon the basis of the above-cited authorities, am of the opinion that 6.04 of the Boca Raton City Charter has the legal effect of making a deputy clerk of said city's court a magistrate. Therefore, conclude that question 1 is properly answered in the affirmative, since the deputy clerk mentioned therein has no connection with law enforcement. ' AS TO QUESTON 2: t will be noted from the above quotation from Johnson v. Unit~d States that the United States Supreme Court in effect held that the Fourth Amendment requires the evidence presented as the basis for the issuance of a search warrant to be weighed by a neutral and detached magistrate "instead of by the officer engaged in the often competitive enterprise of ferreting out crime.'" As indicated above, the Fourth Amendment is equally applicable to arrest warrants, which means that the evidence tendered in support of the issuance of an arrest warrant must also be weighed by a neutral and detached magistrate rather than by an officer engaged in the business of ferreting out crime. As further indicated above, think that these principles apply to the states, and hence to the City of Boca Raton when acting under authority of state law (under 6.04 of its Charter). A police officer of the City of Boca Raton is engaged in the enterprise of ferreting out crime; he is not neutral and detached. Therefore, conclude that question 2 is properly answered in the negative April9, 1968 To: SALES TAX COMMUNCATON SERVCES-EXTENT OF MPOSTON OF TAX BY CH. 212, F. S., AS AMENDED BY CH , LAWS OF FLORDA J. Ed Straughn, Director, State Revenue Commission, Tallahassee QUESTONS: 1. Are communication services generally taxable under Ch. 212, F. S., as amended, or are the communication services which are taxable restricted to those enumerated in (5), F. S.1 2. f the communication services which are taxable are limited to those specifically mentioned in (5), F. S., are all charges for installation of telephonic and telegraphic equipment taxable, or would the tax apply only to the charges for the installation of equipment related or incidental to the taxable services enumerated in (5), F. S.1 Prior to the amendment of Ch. 212, F. S., by Ch , Laws of Florida, (7), F. S., where materially provided:... Likewise exempt are newspapers, communication services, film rentals where an admission is charged for viewing such film and charges for services rendered by radio and television stations, including line charges, talent fees or charges, and charges for films and transcriptions and other expendable items in producing radio or television broadcasts. (Emphasis The above-quoted section was amended by Ch , Laws of Florida, to read as follows: "... Likewise exempt are newspapers, film rentals -1! j '. İ 1 i :1,] 1 1