DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ANTHONY FERRARI,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-464

[November 21, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Ilona M. Holmes, Judge; L.T. Case No. 05015875CF10B.

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale 

Surber, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

WARNER, J.

We grant the State’s motion for rehearing, vacate our prior opinion, and 

substitute the following in its place.

In this appeal from his conviction for first degree murder and 

conspiracy to commit first degree murder, appellant raises multiple issues. 

We find two require reversal. First, the trial court denied appellant’s

motion to suppress historical cell-site location information (CSLI). In 

Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018), the United States 

Supreme Court held that accessing historical cell phone location 

information constitutes a search under the Fourth Amendment requiring 

a warrant and probable cause. Here, because the state acquired the CSLI 

without a warrant issued on probable cause, the court erred in denying 

the motion to suppress. Second, the court held that a mid-trial revelation 

of discovery that the State failed to disclose did not amount to a 
2

Richardson1 violation. We hold that the State’s failure to comply with its 

obligations under Florida Rule of Criminal Procedure 3.220, by neglecting

to disclose the substance of a codefendant’s statements as well as the 

existence of exculpatory statements by another witness, constituted a 

discovery violation. On these grounds we reverse and remand for a new 

trial.

In 2005, the State charged appellant Anthony Ferrari, along with his 

codefendants Anthony Moscatiello and James Fiorillo, with the 2001 

murder of Gus Boulis. Fiorillo pled to the charges in 2012, and a trial 

involving Moscatiello and Ferrari commenced in 2013. Moscatiello’s 

attorney became ill during trial, and his trial was severed. Trial continued 

against Ferrari. Moscatiello was later tried, convicted, and sentenced upon 

the same essential testimony as was presented in the trial of Ferrari. 

Moscatiello appealed, and this court reversed his conviction for a new trial. 

Moscatiello v. State, 43 Fla. L. Weekly D1257 (Fla. 4th DCA June 6, 2018). 

In our opinion, we extensively recited the facts, which are the essential 

facts of this appeal as well. We therefore repeat those facts for this opinion. 

We also add facts specifically relevant to Ferrari’s trial. Furthermore, we 

will discuss additional facts within the issues to which they are relevant.

The Murder

On February 6, 2001, Gus Boulis, a successful 

businessman, left his office in Broward County around 9 p.m. 

As he was heading south on Miami Road, a car stopped in 

front of him. Boulis stopped his vehicle, and another car 

pulled in behind Boulis so that he was boxed in. An innocent 

bystander was in a third car that stopped behind the first two 

cars. A red Jetta pulled up behind the bystander’s car. While 

they were all stopped in a row, a black Mustang came from 

the opposite direction, and pulled up next to Boulis’s vehicle.

Someone in the Mustang fired several shots, killing Boulis. 

After the shooting, the bystander noticed that the red Jetta 

behind him drove off the road around him, and then took off. 

Later, he saw the red Jetta circling the block, perhaps looking 

for him. The bystander memorized the partial tag number of 

the temporary tag on the Mustang and, when he got home, 

called 911. Testimony revealed that both the Mustang and 

the Jetta were owned by Anthony “Little Tony” Ferrari, [the 

appellant] in this case.

1 Richardson v. State, 246 So. 2d 771 (Fla. 1971).
3

The next day Dwayne Nicholson, an employee [or 

contractor] of Ferrari, called to report his knowledge about the 

murder. Eventually, he gave several statements implicating 

both Ferrari and Anthony “Big Tony” Moscatiello (appellant) 

in the murder. Thus, from 2001, the authorities knew of 

evidence connecting appellant to the murder. It took an 

additional four years for them to gather all the evidence and 

indict [Moscatiello], along with Ferrari and James Fiorillo, 

another employee of Ferrari, for the murder.

The State’s theory of the case was that Moscatiello and 

Ferrari were hired by Adam Kidan to protect him from Boulis, 

from whom Kidan had purchased a business. For reasons

somewhat unclear, Moscatiello determined that Boulis needed 

to be killed so that Moscatiello and Ferrari would not lose the 

protection payments from Kidan. The complicated story 

commences with the sale of the business from Boulis to Kidan. 

While there was some documentary evidence supporting 

meetings and payments, the direct testimony linking 

Moscatiello [and Ferrari] to the crime all came from witnesses 

each of whom received substantial benefits for their 

testimony.

The Prelude to the Murder

The victim, Gus Boulis, had become successful as the 

owner of Miami Subs sandwich shops before founding 

SunCruz Casinos, a fleet of gambling casino boats. 

Eventually, the Attorney General’s office advised Boulis that 

he had to sell SunCruz because he wasn’t an American citizen 

when he started the business. As a result, Boulis sold the 

business to Adam Kidan and Jack Abramoff. Boulis received 

$23 million in cash and was supposed to get another $20 

million, which he never received. The business relationship 

between Boulis and Kidan soured. Kidan was afraid that 

Boulis might harm him in retaliation for lack of payment, so 

he reached out to his connections in New York, and asked 

Moscatiello to assist him. Kidan wanted the word out that he, 

Kidan, had “connections.” Moscatiello introduced Kidan to 

Ferrari in Miami to provide security or protection. Ferrari 

bragged to people that he was John Gotti’s nephew and head 

of the Gambino family in Florida.1 For this protection, Kidan 

entered into a deal with Moscatiello for Moscatiello to be a 

“consultant” supplying beverages and paper goods for the 
4

gambling casino boat. Through Ferrari’s business in Miami, 

Ferrari would arrange for Kidan’s protection. Kidan paid 

Moscatiello monthly for the protection.

In November 2000, Moscatiello flew to Miami. Ferrari 

brought along Dwayne Nicholson and several other 

bodyguards as security to pick up Moscatiello from the 

airport. Ferrari, Moscatiello, and Nicholson rode in one 

vehicle, while the rest of the security team rode in others. 

While they were driving to a hotel, Nicholson testified that 

Ferrari and Moscatiello discussed the fact that they did not 

want to pay Boulis the extra money he was owed on the sale 

of Sun Cruz. Ferrari responded that Nicholson would take 

care of Boulis. Moscatiello turned to Nicholson and said, 

“Now, you know what he means . . . we need Gus killed. Are 

you able to do it?” Nicholson did not say anything, because 

he thought he would be killed if he didn’t agree. Ferrari had 

previously asked him whether he would kill Boulis, and 

Nicholson had declined.

The next day, Ferrari and Nicholson picked up Moscatiello 

and drove to the SunCruz office to show Nicholson the office, 

the ships, and the vehicle that Boulis drove. Moscatiello said 

that Boulis had to be taken care of prior to an upcoming court 

date. After Moscatiello was dropped off, Nicholson again 

complained to Ferrari that he wasn’t going to kill Boulis. 

Ferrari told him just to surveil Boulis, and he would figure out 

later what to do.

Meanwhile, Kidan became frustrated with his relationship 

with Ferrari and his protection service. While Kidan was out 

of the country, he terminated his relationship with Ferrari. 

That same day, Boulis was killed.

The Murder and its Aftermath

James Fiorillo was another assistant to Ferrari, who was 

more like a son to him. Fiorillo did multiple errands for Ferrari 

and other tasks. On the day of the murder, Fiorillo arrived at 

Ferrari’s home in a black Mustang belonging to Ferrari, which 

Fiorillo frequently drove. He then switched vehicles with 

Ferrari. Ferrari drove away, and Ferrari’s girlfriend followed 

in his red Jetta. Fiorillo also had access to several of Ferrari’s 

phones.
5

Although the innocent bystander witnessed the murder, he 

could not identify anyone in any of the vehicles. The partial 

license number he obtained did match up to the black 

Mustang. Thus, no independent witness testified as to who 

was present at the scene. However, Fiorillo knew about the 

murder and what occurred.

Fiorillo went to Ferrari’s home after the murder. Ferrari 

gave him a bag containing a gun, which Fiorillo disposed of.

Fiorillo also drove the Mustang to a repair shop. The next day, 

Fiorillo met with Ferrari and Moscatiello at a hotel. 

Moscatiello told Fiorillo to drive to New York and to report the 

Mustang as stolen, which he did. In New York, Fiorillo met 

with Moscatiello. When Moscatiello asked for the details of 

the events leading up to the murder and the murder itself, 

Moscatiello became very angry. He told Fiorillo to stay in New 

York, and Ferrari’s girlfriend allowed Fiorillo to stay with her 

for a week there, after which he stayed in a hotel. Fiorillo 

worked for Moscatiello for a while and then returned to Florida 

sometime in April. Ultimately, Fiorillo was arrested and 

charged with conspiracy to commit murder for which the State 

was seeking the death penalty, as the State originally believed 

that he was the shooter. He reached a plea deal in which he 

agreed to testify against Moscatiello and Ferrari in exchange 

for a six-year prison sentence.

When Kidan returned to Florida after the murder, he met 

Moscatiello in his hotel room and asked if he knew what 

happened. Moscatiello said, “Yes, it was very unfortunate, it 

wasn’t supposed to happen that way.” Moscatiello admitted 

that it was his decision. He explained that the plan was to 

kidnap Boulis, kill him, and bury his body on a farm where 

he would not be found for years. Kidan asked who was 

involved, and Moscatiello told him that the shooter came down 

from New York and went home on Amtrak. Fiorillo drove the 

car, and Ferrari was in another car. Kidan knew that a 

Mustang had been used in the murder and he knew Fiorillo 

had one, so he asked Moscatiello if that was the same car. 

Moscatiello told him it was the same Mustang. Kidan 

complained that that car should not have been used.

Kidan had made significant payments to both Moscatiello 

and Ferrari for protection. In June 2001, Kidan made a last 
6

payment, and then SunCruz went into bankruptcy. Later, 

Kidan was being investigated by the FBI in connection with 

the murder. In April 2004, Kidan met Moscatiello in New York 

and explained that he was being investigated by the 

government. He told Moscatiello that he thought someone 

was cooperating with the government. Kidan asked about the 

shooter, and Moscatiello told him that the shooter had died 

after he was shot in a deli in Boca Raton. Kidan googled the 

incident and discovered that the man who had been shot was 

named John Gurino.2

Kidan was convicted of wire fraud in connection with the 

SunCruz purchase and sale and went to prison in 2006. He 

contacted law enforcement about cooperating in the Boulis 

murder investigation in 2006, and his original sentence of five 

years was cut to twenty-seven months. He testified against 

[Ferrari] at the trial, giving details of the SunCruz sale and 

Moscatiello’s [and Ferrari’s] activities.

Nicholson Contacts Law Enforcement and Investigation 

Commences

The day after the murder, Nicholson was watching the 

news and saw that Gus Boulis had been killed, and police 

were looking for a black Mustang. Nicholson knew that 

Fiorillo usually drove the Mustang. He was afraid that he 

might be killed next, so he called Crime Stoppers. He was put 

in touch with law enforcement, and gave a statement to Fort 

Lauderdale police on February 9, 2001.

Police asked Nicholson to call Ferrari by phone, which they 

attempted to record without success. Then police asked him 

to meet with Ferrari while wear[ing] a listening device hidden 

inside a beeper. When Nicholson met with Ferrari, Ferrari 

grabbed the beeper and asked about it. Nicholson told him 

his girlfriend had given it to him to keep track of him.

Thereafter, Nicholson tried to avoid Ferrari, although he 

was still owed money for his work for Ferrari. Around 

Memorial Day, another of Ferrari’s assistants, Ben Potter, 

came by Nicholson’s house to tell him that Ferrari wanted to 

speak to him. Nicholson, Fiorillo, and Potter drove to Ferrari’s 

mother’s house in Venice, Florida. On the way, Fiorillo asked 

Nicholson if he (Nicholson) was going to kill him (Fiorillo). 
7

Nicholson responded that he thought Fiorillo and Potter were 

going to kill him (Nicholson). At Ferrari’s mother’s home, 

Ferrari told Fiorillo that he was “running his mouth” too 

much, referring to Fiorillo’s recent trip to New York.

Sometime after Memorial Day, Nicholson confronted 

Ferrari about money Ferrari still owed him for his services. 

Ferrari called Moscatiello about the money, and put the call 

on speaker phone. When Ferrari asked him about the money, 

Moscatiello answered, “F*ck those n****rs, just kill them.” 

Nicholson never got his money.

Nicholson was never charged with any crime as a result of 

his interactions with Ferrari and Moscatiello. He received a 

six figure Crime Stopper’s reward for his assistance. He also 

testified against Moscatiello.

The State’s Other Evidence [ ]

In 2007, several years after Moscatiello and Ferrari had 

been charged, Joseph Marley wrote a letter to the state 

attorney offering information regarding Moscatiello. Marley 

had been in custody in the county jail for over two years on a 

drug trafficking charge. His crimes could have resulted in a 

seventy-five year sentence. Looking for leniency, he 

negotiated a plea in exchange for his information and 

testimony, which allowed him to be sentenced to time served 

and to be released upon pleading to the charges.

Marley was a limousine driver in New York, and would 

hang out at clubs owned by John Gotti. He would see 

Moscatiello at those clubs. Marley used to work for Anthony 

and Michael Gurino, who were cousins of John Gurino, who 

became the suspected gunman in the Boulis murder. About 

six weeks after the Boulis murder, Marley ran into John 

Gurino at the Coconut Creek casino. Gurino kissed him and 

said he (Gurino) had a new nickname, “SunCruz Kid.” At first 

Marley didn’t know what he was talking about, and Gurino 

said “Don’t you read the papers?” Then it dawned on Marley 

that he was referring to the murder of Gus Boulis, which he 

had seen reports of on television. Marley asked, “Was that 

you?” Gurino looked at him with a smirk, which Marley 

interpreted as a “yeah.” And, Marley said, “What were you 

doing, shaking him down?” Gurino laughed and said, 
8

“Something like that. I got the work from Moscatiello.” In 

2003, John Gurino was himself murdered in a Boca Raton 

deli.

The State also read the testimony of Nick DiMaggio, who 

was in a federal witness protection program and unavailable. 

He had testified in prior proceedings involving the Boulis 

murder. DiMaggio was a lifetime criminal and had known 

Moscatiello his whole life. He also knew John Gurino, who 

was his best friend. In 2000 or 2001, Moscatiello had asked 

DiMaggio to stop by his house in New York. During their 

meeting, Moscatiello offered him $100,000 to go to Florida and 

kill Gus Boulis. Moscatiello explained that Boulis was making 

a lot of problems with a gambling business and a lot of money 

was at stake. DiMaggio was insulted because he was being 

asked to kill someone for money rather than for “principle.” 

He left the meeting and told Gurino about the offer. Later, he 

became aware that Boulis was in fact killed when he received 

a news article about the murder, sent to him by Gurino. A 

few weeks later, DiMaggio spoke with Moscatiello in New York, 

and Moscatiello told him “he took care of it.” However, Gurino 

never told DiMaggio that he had shot Boulis, and DiMaggio 

would have been shocked if he did, as Gurino lived by the 

same principles as DiMaggio. DiMaggio testified as part of a 

plea negotiation, which required him to testify in this case and 

others. For his testimony in various proceedings, including 

this one, the government did not charge him with multiple 

crimes, which included murders. He was held in custody for 

nearly seven years, but at sentencing, he received a sentence 

of only a year. He was released to the witness protection 

program.

Finally, Paul Brandreth, a convicted felon in federal prison 

for a drug crime and for second degree murder in a state 

prosecution, testified that he was approached by Ferrari to kill 

three people, including a black man (Nicholson) and a woman 

(Ferrari’s girlfriend), both of whom lived in South Florida, and 

a person in a hotel in Yonkers (Fiorillo), for whom law 

enforcement was looking. Ferrari needed Brandreth to get to 

Fiorillo before the investigators did. Brandreth travelled to 

New York and stayed with Fiorillo, ostensibly for Fiorillo’s 

protection. When Brandreth arrived, he was picked up at the 

airport by Moscatiello. Moscatiello said to him, “so you’re the 

one, kid, huh? You’re the one, nothing but a f*cking hat trick 
9

for you. Nothing but a Trifecta.” Brandreth knew he was 

referring to the three people Brandreth was supposed to 

“whack.” He asked Moscatiello for his money. Moscatiello 

replied, “What do you mean? I thought the other Tony took 

care of you.” Brandreth told him he needed a “paintbrush” 

which was code for a gun. Moscatiello said that he didn’t have 

a gun, but he had “a shotgun from a fed job he did one time.” 

Moscatiello told him to wait for a phone call, but not to kill 

Fiorillo at the hotel because he owned the hotel. Brandreth 

stayed with Fiorillo, but never got a phone call or gun. He 

returned to Florida. In 2012, he was visited by two officers 

while he was in prison for murder and federal charges. In his 

state murder case, prosecutors agreed to have his state 

sentence terminate when his federal sentence terminated in 

exchange for his testimony in this case, significantly reducing 

his prison time.

____________________

1 John Gotti was the boss of the Gambino crime family in New York.

2 This was later confirmed, through testimony at trial, from the man 

who shot Gurino at the deli.

Id. at *1-5.

Evidence at Ferrari’s Trial of His Cars, Cell Phones, and Guns

The State presented evidence that Ferrari owned many different types 

of cell phones, including Nextel phones that could be used like walkietalkies. Nicholson testified that Ferrari used at least four different cell 

phones. Other people in Ferrari’s orbit, including Nicholson and Fiorillo, 

used the phones. Ferrari also had a lot of cars, and Ferrari let Fiorillo 

drive his Ford Mustang. Ferrari parked the cars at the parking garage by 

his office. In January 2001, Ferrari got a case of handguns from 

Nicholson, including a .380 handgun that was the same type of gun used 

to kill Boulis. Fiorillo and Ferrari used the guns at a shooting range. 

Nicholson also testified that before Boulis died, Kidan gave Ferrari a gun.

A special agent for the Secret Service and a member of the FBI violent 

crimes task force testified regarding telephone calls made from Ferrari’s 

cell phones. Cell phones must be in communication with a tower to receive 

phone calls or messages and to transfer data. Phone companies record 

people’s historical cell-site location information (“CSLI”), which can be 

imported onto a mapping program to show the location of the towers that 

received the phone’s data at certain times. The agent analyzed the CSLI 
10

from the night of the murder for two of Ferrari’s cell phones, and he put 

the technical data on a map. On the night of the murder, the phones were 

used near Boulis’s office, and they did not move location from 6:40 p.m. 

to 9:19 p.m. Just after 9:00 p.m., the phones made a series of calls to 

each other, and the phones began moving south and east towards Miami 

Beach, in different routes but close together.

Ferrari’s Defense

Ferrari testified at his trial. Ferrari met Nicholson through business, 

and he had known Moscatiello for a long time. He knew Adam Kidan, “the 

devil himself,” but not Joseph Marley, John Gurino, or Nick DiMaggio. In 

September 2000, Moscatiello told Ferrari that he was going to do business 

with Kidan, and Moscatiello wanted Ferrari to find a warehouse in Florida 

for Moscatiello’s wine business. Moscatiello told Ferrari that Kidan wanted 

to hire security to watch the Sun Cruz boats, and Ferrari reached out to 

Darryl Wysinger. Beginning in December 2000, Kidan began paying 

Ferrari $25,000 a month for security, even though Ferrari admitted that 

he knew nothing about running a security company. Ferrari obtained 

advice from an outside security consultant, Mark Martin, who specialized 

in covert security cameras and listening devices. Kidan hired Martin to 

install listening equipment in Boulis’s offices.

Ferrari testified that he was watching his daughter when Boulis died, 

and a friend of his was at his house. On that night, Fiorillo came to 

Ferrari’s condo after dark to pick up the Mustang. Fiorillo left, but he 

returned at about 12:30 a.m., hysterically crying and stating that he just 

killed Boulis. Nicholson arrived and told Fiorillo to keep his mouth shut, 

but Fiorillo confessed in front of another of Ferrari’s friends. Ferrari never 

asked Nicholson or Fiorillo to kill Boulis. Also, he never asked Brandreth 

to kill Fiorillo. Ferrari testified that he did not confess to Kidan, and Kidan 

and Nicholson used Fiorillo, who had a drug habit, to kill Boulis. Ferrari 

further testified that Kidan was the “mastermind” behind the murder. He 

denied that Nicholson was in the vehicle in November when Moscatiello 

came to Florida. Nicholson was lying and was involved in the murder.

Ferrari had at least ten cars. As mentioned above, all of the cars were 

kept at the parking garage at Ferrari’s office, and the keys were kept inside 

his office. Ferrari bought the Mustang for Fiorillo to drive because he did 

not want Fiorillo to drive his other cars. Ferrari admitted that he had three 

or four Nextel phones under his company’s name, and he had three other 

phones under either a second company’s name or his business associate’s 
11

name. Ferrari testified that Fiorillo and Nicholson had access to his cars, 

phones, and offices.

Ferrari met Brandreth at the car repair shop that he used. Although 

Ferrari admitted that he loaned Brandreth $1,100, Ferrari did not hire 

Brandreth to kill Fiorillo. With respect to the meeting at his mother’s 

house in Venice, Florida, Ferrari testified that he had Potter bring 

Nicholson and Fiorillo to his mother’s house because Fiorillo told 

Nicholson how McDonald’s makes its deposits, and Nicholson used that 

information to rob Ferrari’s wife, a McDonald’s manager. Ferrari made 

additional, specific denials to the other claims raised by the State’s 

witnesses. On cross-examination, the prosecutor elicited over objection 

that Ferrari had not made any of these statements to investigators before 

his trial testimony. 

After closing argument, the jury found Ferrari guilty of first degree 

murder and conspiracy to commit first degree murder. The court 

sentenced Ferrari to life in prison without parole for the murder charge 

and to thirty consecutive years for conspiracy to commit murder. Ferrari 

timely appeals.

Analysis

I. Suppression of CSLI Data

Ferrari challenges the denial of his motion to suppress the historical 

CSLI data from two of his cell phones, which showed their location on the 

night of the murder. In 2001, the State, upon the request of the

investigating detective, subpoenaed the records of one cell phone company

for the historical CSLI on these two cell phones. That company faxed the 

CSLI to the police without contesting the subpoena. The FBI agent later 

testified about these subpoenaed records at trial. Before requesting the 

CSLI from this company through the subpoena, another cell phone 

company had refused to provide similar records without a court order, and 

the court had issued an order requiring the production of the CSLI from 

that company. Ferrari unsuccessfully moved to suppress the subpoenaed 

historical CSLI data. Appellant challenges the denial of the suppression 

of the CSLI data obtained by subpoena, arguing that the State violated 

section 934.23, Florida Statutes, and the Fourth Amendment. 

In Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018), the 

Supreme Court held that historical CSLI data is protected by the Fourth 

Amendment, and thus, the government’s acquisition of such data 

constitutes a search which requires a warrant supported by probable 
12

cause. The Supreme Court’s opinion is binding upon Florida courts under 

article I, section 12 of the Florida Constitution, and an appellate court 

applies the law in effect at the time of its decision. See State v. Glatzmayer, 

789 So. 2d 297, 303 n.10 (Fla. 2001). Therefore, the acquisition of the 

CSLI records without a warrant based upon probable cause violated 

Ferrari’s Fourth Amendment rights.

The State, however, contends that even if CSLI data is protected under 

the Fourth Amendment, the investigator’s acquisition of the data in this 

case should be protected by the “good faith” exception to the exclusionary 

rule. We disagree.

The “good faith” exception avoids the exclusion of the results of a 

warrantless search where the police conduct an objectively reasonable 

search based upon binding decisional law, see Davis v. United States, 564 

U.S. 229 (2011), or in reasonable reliance on an applicable statute, even if 

that statute is later held to be unconstitutional, see Illinois v. Krull, 480 

U.S. 340 (1987). In this case, the search occurred in 2001. At that time, 

no binding decisional law existed determining that CSLI data was not 

within Fourth Amendment protection and thus exempt from the warrant 

requirement. In fact, CSLI data is never mentioned in reported decisions

in that time period. When denying Ferrari’s motion to suppress, the trial 

court relied on our decision in Mitchell v. State, 25 So. 3d 632, 635 (Fla. 

4th DCA 2009), which held that a person has no expectation of privacy in 

historical CSLI. However, that decision was several years after the search, 

and even in that opinion, we noted that the case law concerning historical 

CSLI was unsettled. Id. at 634. Thus, the detective had no case law on 

which to rely in his decision not to secure a warrant or court order for the 

historical CSLI. Instead, the detective obtained the information by way of 

subpoena. In fact, the detective did not even cite any statute in the request 

for issuance of the subpoena. 

The trial court found that section 934.23(1)2 required a court order or 

a warrant to obtain electronic communication information, and it was 

undisputed that a warrant had not been obtained. While the court cited 

section 934.23(1) in its order denying the motion to suppress, Ferrari cited 

2 Section 934.23(1), Florida Statutes (2001) (emphasis added), provides: 

(1) An investigative or law enforcement officer may require the 

disclosure by a provider of electronic communication service of the

contents of an electronic communication that has been in electronic 

storage in an electronic communications system for 180 days or less 

only pursuant to a warrant issued by the judge of a court of 

competent jurisdiction.
13

to section 934.23(4)(b) in his motion. Section 934.23(4)(b), Florida 

Statutes (2001), provides that information pertaining to a subscriber, not 

including the contents of an electronic communication, must be obtained 

by warrant, court order, or consent of the subscriber.3

We need not determine which subsection applies, because the officer 

did not comply with either subsection and did not obtain a warrant or 

court order. Thus, he was not acting in reasonable reliance on a statute. 

In addition, the other carrier specifically told the officer that he needed a 

court order to secure the CSLI data, which order the officer obtained. This 

was before the officer requested a subpoena for the CSLI from the subject

cell phone company. Given both the law enforcement officer’s failure to 

follow the statute and the officer’s knowledge of the other company’s 

express objection to producing CSLI without a court order, the state 

cannot meet the good faith exception.

In Tracey v. State, 152 So. 3d 504, 525-26 (Fla. 2014), the Florida 

Supreme Court held that real time CSLI data was protected by the Fourth 

Amendment, and thus, its use by law enforcement constituted a search 

which required a warrant based upon probable cause. There, the 

detectives had obtained an order pursuant to section 934.33 authorizing 

a pen register, but then they used that order to obtain real time CSLI given 

off by the petitioner’s cell phone. Id. at 507-09. Our supreme court 

rejected the application of the good faith exception to the exclusionary rule 

because there was no binding appellate precedent or court order on which 

law enforcement could objectively rely. Id. at 526. Similarly, the Supreme 

Court held in Carpenter that an order authorizing acquisition of historical 

CSLI issued pursuant to the federal Stored Communications Act did not 

satisfy the Fourth Amendment because the order was based upon 

reasonable suspicion and not probable cause. 138 S. Ct. at 2221. The 

Supreme Court did not hold that the officers acted in good faith in using 

3 Section 934.23(4)(b)(1.)-(3.), Florida Statutes (2001), provides:

A provider of electronic communication service or remote computing 

service shall disclose a record or other information pertaining to a 

subscriber to or customer of such service, not including the 

contents of communications covered by subsection (1) or 

subsection (2), to an investigative or law enforcement officer only 

when the investigative or law enforcement officer:

1. Obtains a warrant issued by the judge of a court of competent 

jurisdiction;

2. Obtains a court order for such disclosure under subsection (5); 

or

3. Has the consent of the subscriber or customer to such disclosure.
14

the SCA. Indeed, the message of the Supreme Court is unmistakable to 

law enforcement: “Before compelling a wireless carrier to turn over a 

subscriber’s CSLI, the Government’s obligation is a familiar one—get a 

warrant.” Id. In both these cases, the court did not apply the good faith 

exception where a court order was involved, albeit issued without probable 

cause. Where there is not even an attempt to obtain a court order, as 

required by statute, there is no good faith attempt to comply with the 

dictates of law and the Constitution.

For these reasons, we hold that under Carpenter, the historical CSLI 

data was protected by the Fourth Amendment. The acquisition of this data 

without a warrant based on probable cause constituted an illegal search 

pursuant to the Fourth Amendment. Further, the good faith exception to 

the exclusionary rule does not apply because the State was not relying on 

binding precedent or clearly applicable statutes in obtaining the data. 

II. Richardson Discovery Issue

Ferrari challenges the trial court’s mid-trial denial of his Richardson

challenge. During the cross-examination of Nicholson, the defense 

discovered the existence of multiple tapes and statements by Fiorillo and 

others, which were referred to aptly by the court as “bombshell” discovery. 

Because we conclude that a Richardson violation occurred and the 

revelation of the discovery could have changed the strategy of the defense, 

we are compelled to reverse.

In response to a question in cross-examination, Nicholson mentioned 

that he had worn a wire during one of his conversations with Fiorillo. This 

revelation surprised both the prosecutor and defense. The court excused 

the jury and began to conduct a Richardson hearing. Nicholson testified 

that the police wired his van, and the police recorded his conversations 

with Fiorillo on only one occasion. The court recessed for the evening and 

told the prosecutor that he needed to investigate if there were any reports 

about the recordings.

When the court reconvened the next day, the defense attorneys 

informed the court that they had called Dohn Williams, Fiorillo’s former 

attorney, who told them that he had ordered “all of the tapes of all of the 

statements” from the Ft. Lauderdale Police Department five or six years 

before the trial. The tapes were still in Williams’s office, and defense 

attorneys brought about nine of the seventy-five to eighty tapes to court. 

Several of the tapes involved Nicholson’s contacts with Fiorillo, and the 

defense attorney stated that there was “not a single police report that is 
15

filed in this case that would have even alerted us to that.” There were at 

least one or two tapes from Nicholson’s conversation with Fiorillo in 

August 2001. The prosecutor reported that a detective wired Nicholson’s 

van, but the detective never authored a report about the wiring because 

he believed that it was covered in Nicholson’s statements. The prosecutor 

did not see anything about it in either Nicholson’s statements or the 

detective’s reports.

Ferrari’s attorney asked for the court to un-sequester the jury so that 

he could listen to the tapes with Ferrari. He stated that Williams did not 

bring up the tapes when he deposed Nicholson, and Williams “must have 

forgotten about them somehow.” The attorney said that in one of the 

tapes, Nicholson told Fiorillo that “they think I’m involved.” Although this 

may have been a comment to induce Fiorillo to incriminate himself, 

Nicholson’s statement would have been helpful to impeach Nicholson. The 

court required the attorney to continue his cross-examination of 

Nicholson, after which the court would adjourn for a day and a half for the 

attorneys to listen to the tapes.

At the renewed hearing, defense counsel produced five of thirteen tapes 

which he had the court reporter transcribe and several un-transcribed 

tapes. One of the un-transcribed tapes consisted of a statement by a 

Curtis Jackson, who said that he came down from Detroit to help kill 

Boulis. Jackson said a man in Gainesville paid to have Boulis killed. On 

another tape, Orlando Torrens, who worked for Fiorillo, said that Fiorillo 

confessed to him that he killed Boulis. Counsel argued that there was a 

Richardson violation and asked the court to grant a continuance so that 

he could complete discovery. Ferrari’s attorney wished to depose Orlando 

Torrens and to re-depose Fiorillo, and he stated that he thought they had 

“gone from a potential discovery violation to a Brady violation, and maybe 

both.”

During the hearing, the State produced a letter from February 22, 2006, 

in which Williams wrote to one of the detectives that he was sending him 

seventy-five blank cassette tapes “so that [he] might obtain copies of the 

tape-recorded statements set forth in the attached evidence property forms 

that were supplied in discovery.” The prosecutor argued the letter proved 

Williams received the police property forms in discovery from the State, 

which indicated that there were seventy-five different tapes, and the 

property receipts listed Torrens’s “sworn, taped statement.” On the letter, 

Williams cc’d Moscatiello’s attorney and Ferrari’s prior attorney. Because 

defense counsel had the property receipts and Williams’s letter, the State 

argued there was no discovery violation. In addition, the prosecutor 

produced a 2009 supplemental discovery regarding tapes of jail cell 
16

conversations of Ferrari and Fiorillo, which included an agreement that 

one copy of the tapes would be supplied to Williams who would copy it for 

the other defense attorneys.

The trial court found that no Richardson violation had occurred 

because Williams was the “point person” for distributing discovery to the 

other defense attorneys. The court relied on the 2009 discovery to 

establish this agreement. The court assumed Williams did not tell the 

attorneys about the tapes because “there was nothing worth while or 

evidentiary on these tapes.” Because no one contested that Williams was 

the “lead defense in getting the tapes and DVDs” in 2009, and because 

Williams had the other tapes listed in the police property receipt from 2006 

to 2013, the court found no discovery violation. 

Defense counsel, however, did object to the court’s characterization 

that Williams was authorized to act for them as to the distribution of the 

2006 tape request. They also requested a mistrial and/or continuance to 

allow them to listen to all the tapes with their clients. Defense counsel 

then proffered Williams’s testimony that there was no agreement between 

him and other defense counsel with respect to the tapes received in 2006, 

and he did not have the responsibility to notify anyone about the tapes. 

The court denied all motions, finding that Williams put the attorneys of 

record on notice of the existence of the tapes when he requested them.

When a trial court learns of a possible discovery violation, “the court 

must conduct a Richardson hearing to inquire about the circumstances 

surrounding” the State’s discovery violation, and it must ascertain the 

possible prejudice to the defendant. Cuminotto v. State, 101 So. 3d 930, 

936 (Fla. 4th DCA 2012) (citing Jones v. State, 32 So. 3d 706, 710 (Fla. 

4th DCA 2010)). If the court finds a discovery violation, it must determine 

if the violation was: (1) inadvertent or willful; (2) trivial or substantial; and 

(3) whether it resulted in prejudice or harm to the defendant. Richardson 

v. State, 246 So. 2d 771, 774-45 (Fla. 1971). 

The parties dispute the standard of review for the trial court’s findings. 

The State contends that the trial court’s ruling is reviewed for an abuse of 

discretion, while Ferrari contends that where the finding is based upon 

facts or an erroneous interpretation of the law, the review should be de 

novo. Richardson’s three prongs “are reviewed for an abuse of discretion, 

but this discretion can be exercised only following a proper inquiry.” 

Goldsmith v. State, 182 So. 3d 824, 827 (Fla. 4th DCA 2016) (quoting 

Brown v. State, 165 So. 3d 726, 729 (Fla. 4th DCA 2015)). In Curry v. 

State, 1 So. 3d 394, 398 (Fla. 1st DCA 2009), the court noted that various 
17

issues are presented as to whether there was a discovery violation, 

necessitating different standards:

The threshold question in all of these cases is whether there 

was a discovery violation. This might be a factual issue, for 

example if the dispute is whether the evidence was or was not 

disclosed. In that event, a hearing would be needed to resolve 

the dispute. It is possible that the issue might present only a 

question of law, for example, if the alleged violation turns on 

the interpretation of a rule. In that case, the need for a 

hearing would depend on the resolution of the issue. If the 

court correctly determined that there was no violation, there 

would be no need for a hearing. But if a discovery violation 

has occurred, the trial court is required by law to grant a 

Richardson hearing. The court cannot simply exercise its 

discretion to deny a hearing.

If a court incorrectly concluded there was no violation and failed to address 

each of Richardson’s three prongs, the Richardson hearing was 

inadequate. Goldsmith, 182 So. 3d at 827. A court’s finding that there 

was no violation must be supported by the record. Knight v. State, 76 So. 

3d 879, 888 (Fla. 2011). To the extent the trial court’s rulings involve 

interpretation of the rules, we review those de novo. To the extent that the 

court’s rulings rely on a factual predicate, we review the record for 

competent substantial evidence to support the trial court’s findings.

The discovery rules facilitate truth-finding and “avoid trial by surprise 

or ambush.” Scipio v. State, 928 So. 2d 1138, 1144 (Fla. 2006). “Because 

full and fair discovery is essential to these important goals, we have 

repeatedly emphasized not only compliance with the technical provisions 

of the discovery rules, but also adherence to the purpose and spirit of those 

rules in both the criminal and civil context.” Id.

The State’s obligations in the production of discovery are extensive. 

Florida Rule of Criminal Procedure 3.220(b)(1)(A) requires the prosecutor 

to disclose “the names and addresses of all persons known to the 

prosecutor to have information that may be relevant to any offense charged 

or any defense thereto . . . ;” any written or recorded statements of its listed 

witnesses; and “any written or recorded statements and the substance of 

any oral statements made by a codefendant.” Fla. R. Crim. P. 

3.220(b)(1)(B), (b)(1)(D). The prosecutor must also disclose any “material 

information” that negates the defendant’s guilt. Fla. R. Crim. P. 

3.220(b)(4); see Perdomo v. State, 565 So. 2d 1375, 1376 (Fla. 2d DCA 

1990) (finding evidence of “debatable exculpatory value” should be 
18

disclosed, and thus, the State should have disclosed its possession of the 

defendant’s clothes even though the State believed that the evidence had 

been stolen). The State must either be aware of the evidence, must possess 

the evidence, or must be “charged with constructive knowledge and 

possession of evidence withheld by state agents, including law 

enforcement officers.” Fla. R. Crim. P. 3.220(b)(1); see Jones v. State, 32 

So. 3d 706, 708-11 (Fla. 4th DCA 2010) (finding that although the 

prosecutor disclosed the defendant’s threat towards the victim as soon as 

he learned of it, the prosecutor could have been charged with the 

knowledge of the defendant’s statement because a deputy knew about the 

threat, and the defendant was procedurally prejudiced by the court’s 

failure to conduct an adequate Richardson hearing to determine if the 

discovery violation prejudiced the defendant’s ability to prepare for trial).

Here, the State is charged with the knowledge of the tapes in the 

possession of the police. 

In Blatch v. State, 495 So. 2d 1203, 1204 (Fla. 4th DCA 1986) (quoting 

Odoms v. State, 431 So. 2d 1041 (Fla. 4th DCA 1983)) (emphasis in 

original), we explained that “[t]he state has an affirmative duty, upon 

demand, to furnish full discovery” to the defense. There, the State had 

disclosed exculpatory statements of the defendant, but it had failed to 

provide an inculpatory statement made by the defendant that it sought to 

use at trial. Id. In reversing, this Court held that the State must provide 

the defense with the substance of a defendant’s statements, and it cannot 

merely supply the name of a person to whom the statement may have been 

made:

The trial court ruled that the defense, having been advised of 

the names of the officers, had an obligation to depose them. 

This is not the law. See Lavigne v. State, 349 So. 2d 178 (Fla. 

1st DCA 1977). The law requires the disclosure of the 

substance of any statements made and known by the state to 

exist as well as the identity of the person to whom it was made.

Id. (emphasis added); see also Kucher v. State, 758 So. 2d 1165, 1166 (Fla. 

2d DCA 2000) (finding the State committed a discovery violation by failing 

to provide defense with oral statement of defendant, even though the 

State’s discovery notice had stated that there were statements by the 

defendant; “[t]he fact that defense counsel has been provided the witness's

name and fails to depose the witness does not excuse prosecution's failure 

to inform the defense of a statement made by the defendant to which the 

witness will testify.”).
19

The State had the obligation of providing to the defense the substance 

of any statements by a codefendant, as well as any exculpatory 

information. Fiorillo was a codefendant until 2012, at which point he 

accepted a plea deal. In its discovery responses, the State failed to provide 

the substance of Fiorillo’s statements to Nicholson, and it never disclosed

the statement by Fiorillo to Oscar Torrens in which Fiorillo confessed to 

murdering Boulis. The State also did not provide the exculpatory 

statement by Curtis Jackson. While statements between Nicholson and 

Fiorillo are mentioned in the property receipts from the Fort Lauderdale 

Police, the statement from Torrens in the property receipts does not reveal 

any substance or information that the statement contains a confession by 

a codefendant. Moreover, the property receipts listing all the statements

and tapes never mention the Curtis Jackson statement at all. Neither 

Torrens nor Jackson are listed in the State’s response to discovery.

The State failed to abide by its obligations under the rules in responding 

to discovery. Thus, it committed a discovery violation. The court, however, 

found no discovery violation, because the tapes of the statements were 

provided to the attorney for Fiorillo, a codefendant. Similar to what 

occurred in Blatch, this was insufficient to satisfy the State’s obligation, as 

the substance of the statements was never revealed so that any defendant 

would know of the relevance or importance of the statements. Just as 

Blatch concluded that it was not the defendant’s obligation to depose an 

officer to determine whether the defendant had made any statements, 

here, it was not the defendant’s obligation to depose Torrens to discover 

Fiorillo’s confession to the murder. It is the State’s affirmative obligation 

to inform the defense of the substance of those statements. The State not 

only failed to comply with the technical requirements of the rules, it failed 

to adhere to their “purpose and spirit.” Scipio, 928 So. 2d at 1144. The 

trial court erred as a matter of law in determining that the State sufficiently 

complied with its discovery obligations by providing copies of the 

voluminous statements in discovery where the State failed to provide the 

substance of those statements.4

We further conclude that the court’s determination that no Richardson 

violation occurred because the tapes of the various statements were 

delivered to a codefendant’s attorney is also not supported by the evidence 

4 This should not be an onerous obligation on the State. For instance, if there 

was a tape of a conversation between Nicholson and Fiorillo in which Fiorillo 

states that he killed Boulis, all that would be required is to note that fact. It 

could have identified the statement of Oscar Torrens that Fiorillo confessed to 

him that he killed Boulis.
20

presented. While there was an apparent agreement in 2009 that Fiorillo’s 

attorney would receive the copy of jailhouse conversations to distribute to 

all of the defense attorneys, no such agreement was in place in 2006 when 

Fiorillo’s attorney obtained the tapes from the police. Fiorillo’s attorney 

was not acting as an agent for Ferrari.

“If the trial court incorrectly concludes that there was no discovery 

violation and fails to address each of the three prongs of Richardson, the 

Richardson hearing is inadequate.” Goldsmith, 182 So. 3d at 827. 

However, a discovery violation is subject to a harmless error analysis. Id.

at 828. A Richardson violation is harmless error “only if an appellate court 

can determine, beyond a reasonable doubt, that the defense was not 

procedurally prejudiced,” and the State has the heavy burden to show the 

lack of procedural prejudice. Id. (citations omitted). The Florida Supreme 

Court held the following:

In determining whether a Richardson violation is harmless, 

the appellate court must consider whether there is a 

reasonable possibility that the discovery violation 

procedurally prejudiced the defense. As used in this context, 

the defense is procedurally prejudiced if there is a reasonable 

possibility that the defendant's trial preparation or strategy 

would have been materially different had the violation not 

occurred. Trial preparation or strategy should be considered 

materially different if it reasonably could have benefited the 

defendant. . . . In other words, only if the appellate court can 

say beyond a reasonable doubt that the defense was not 

procedurally prejudiced by the discovery violation can the 

error be considered harmless.

. . . .

We recognize that in the vast majority of cases it will be readily 

apparent that the record is insufficient to support a finding of 

harmless error. . . .

State v. Schopp, 653 So. 2d 1016, 1020-21 (Fla. 1995). 

On this record, it seems rather obvious that the discovery violation 

procedurally prejudiced Ferrari. Fiorillo testified that he was not at the 

murder scene, yet his multiple confessions to Nicholson and Torrens 

would have impeached his testimony and thus his credibility. It may also 

have changed defense counsel’s strategy in having Ferrari testify because 

other evidence would have been available as to Fiorillo’s involvement in 
21

the murder. Further, the fact that Curtis Jackson stated that he was hired 

by a person in Gainesville to murder Boulis could have revealed a whole 

different line of inquiry to support Ferrari’s defense that he was not 

involved in the Boulis murder. In any event, it is the State’s burden to 

show that the defense was not prejudiced. The State has not met its 

burden, and therefore, reversal is required.

III. Additional Issues

While we affirm on the remaining issues raised, we address briefly the 

claim that the prosecutor improperly commented, in cross-examination 

and in closing argument, on Ferrari’s post-arrest silence. During crossexamination, the prosecutor extensively questioned Ferrari about why he 

had not told anyone about Fiorillo’s confession to him or Nicholson’s 

involvement. While defense counsel objected to the prosecutor’s question 

about whether Ferrari ever had reported to any law enforcement, the trial 

court overruled the objection. Furthermore, many of the prosecutor’s 

questions were directed to the time directly after the murder. During 

closing argument, the prosecutor commented twice on the fact Ferrari was 

making his claims of Fiorillo’s confession twelve and a half years after the 

murder. Counsel did object, but the court overruled his objection and 

denied the motion for mistrial. 

Under Florida law, the State cannot “comment on a defendant’s 

postarrest silence whether o[r] not the silence was induced by Miranda

warnings.” State v. Hoggins, 718 So. 2d 761, 769 (Fla. 1988) (alteration 

added, emphasis added); see Webb v. State, 347 So. 2d 1054, 1056 (Fla. 

4th DCA 1977). However, the State may impeach a defendant with his or 

her pre-arrest, pre-Miranda silence. Hoggins, 718 So. 2d at 770 (“Florida 

courts have found, consistent with the United States Supreme Court in 

Jenkins [v. Anderson, 447 U.S. 231 (1980)], that prearrest, pre-Miranda

silence can be used to impeach a defendant.”) Therefore, the trial court 

did not err in allowing the prosecutor’s questions to Ferrari about whether 

he had reported to the police that Fiorillo had confessed to the murder, as 

many of the questions were directed at pre-arrest, pre-Miranda silence.

Furthermore, we conclude that because of Ferrari’s failure to object to 

most of the prosecutor’s comments, particularly those which may have 

implicated post-arrest silence, the issue was not properly preserved. See 

Rao v. State, 52 So. 3d 40 (Fla. 4th DCA 2010) (finding the prosecutor’s 

comments on pre-arrest silence did not violate any constitutional rights; 

while the State did make an improper comment on the defendant’s postarrest right to remain silent, the defendant did not preserve the issue, and 

even if he did, any error was harmless beyond a reasonable doubt). 
22

Conclusion

The trial court erred in denying the motion to suppress the CSLI, as it 

was obtained without a warrant based upon probable cause. The court 

also erred in concluding that the State had not committed a Richardson 

discovery violation when it failed to provide the substance of a 

codefendant’s statements and other exculpatory statements. Ferrari was 

prejudiced in his preparations for trial by these violations. Based upon 

the foregoing, we reverse the conviction of appellant and remand for a new 

trial.

GROSS and TAYLOR, JJ., concur.