
    The STATE of Florida, Appellant, v. Stanley H. STEINBRECHER, Appellee.
    No. 79-1318.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    
      See also Fla.App., 389 So.2d 1045, 389 So.2d 1054.
    Janet Reno, State’s Atty. and Theda R. James, Asst. State’s Atty., for appellant.
    Bernard A. Frank and Jack R. Nagelely, Miami Beach, for appellee.
    Before HUBBART, C. J., and SCHWARTZ, J., and VANN, HAROLD R. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The state appeals from an order granting the defendant’s motion to suppress tape recordings of his conversations, which had been secured without an intercept warrant but in accordance with Sec. 934.03(2)(c), Fla. Stat. (1977). The order itself accurately summarizes the controlling facts:

1.On December 6, 1978, law enforcement officers of the Dade County Public Safety Department acquired the consent of one Angelo Jordan to tape record phone calls and in-person conversations between Jordan and the defendant, Stanley H. Steinbrecher, a sergeant with the City of Miami Beach Police Department. The purpose of these records was to gain evidence of alleged criminal acts, to— wit: Bribery and Unlawful Compensation.
2. Phone conversations and person-to-person conversations between Jordan and the defendant were intercepted, after such consent, between December 6, 1978, and January 23, 1979, in an effort to detect said criminal acts.
3. No Intercept Warrant was obtained prior to the interception of the conversations.
4. The State has conceded that there was sufficient time to obtain an Intercept Warrant.
5. None of the intercepted conversations occurred in the residence of the defendant or touched the said residence.

The trial judge based his ruling upon Sarmiento v. State, 371 So.2d 1047 (Fla.3d DCA 1979), cert. granted and pending, Fla. Sup.Ct., Case no. 57,173, in which this court held that, without a warrant, an eavesdropping officer could not testify to the contents of a conversation which occurred in the defendant’s home. After the entry of the order below, however, we held in Franco v. State, 376 So.2d 1168 (Fla.3d DCA 1979), cert. denied, 386 So.2d 636 (Fla.1980), that a warrant was not required in a situation identical to the one involved here. This case is controlled by Franco and is decisively unlike Sarmiento in at least two respects: (a) it concerns the admissibility of the tapes themselves, rather than only the testimony of a person who overhead the conversation, see, Hajdu v. State, 189 So.2d 230, 233-34 (Fla.3d DCA 1966), cert. denied, 196 So.2d 923 (Fla.1967); and (b) the conversations in question did not take place in the privacy of the home. For these reasons, it is not necessary to determine whether Sarmiento has continuing viability as applied to its own facts, notwithstanding the quite different constitutional reasoning adopted in Franco. See, contra, State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980). On the authority, therefore, of Franco v. State, supra, the order under review is

Reversed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would affirm the order under review in all respects. In my view, the subject tape recordings were properly suppressed by the trial court because they represent the fruit of an unreasonable interception of a private conversation involving the defendant and the police in violation of the defendant’s rights guaranteed by Article I, Section 12 of the Florida Constitution. No intercept warrant was ever obtained for the subject electronic eavesdropping although concededly it was practicable to have obtained one. As such, the subject tape recordings were inadmissible in evidence and the state agent’s “consent” to the subject electronic eavesdropping cannot change this result. I have more fully developed the authorities and reasoning to support this view in my dissenting opinions in State v. Shaktman, 389 So.2d 1045 (Fla.3d DCA 1980) (opinion filed this date), and Franco v. State, 376 So.2d 1168, 1170-1172 (Fla.3d DCA 1979), upon which I rely for my dissent herein. 
      
      . See also, Jacobs v. State, 389 So.2d 1054 (Fla.3d DCA 1980); State v. Shaktman, 389 So.2d 1045 (Fla.3d DCA 1980); Trinidad v. State, 388 So.2d 1063 (Fla.3d DCA 1980).
     