dopoliCeoffiCerShaveareaSonableexpeCTaTionofprivaCyinphoneCallS ?
Criminal law Section Chairs : JustinPetredis – TheLawOfficesofJustinPetredis & AmyCasanova-Ward – FloridaDepartmentofFinancialServices-OfficeoftheGeneralCounsel
On April 12 , 2024 , the Fifth District Court of Appeal came down with a ruling in Michael L . Waite v . State of Florida , 2024 WL 1593967 , Case No . 5D23-1354 . The facts of the case “ stems from a lengthy dispute between Waite and the Citrus County Sheriff ’ s Office ( CCSO ).” Id . “ Since 2018 , Waite quarreled over property boundaries with city employees and CCSO deputies .” Id . “ For the duration of this dispute , Waite would report what he believed to be crimes to various state agencies and the media .” Id . “ As his relationship with the CCSO continued to devolve , Waite started recording conversations with CCSO deputies .” Id .
Mr . Waite , the defendant , did concede that he did not inform the deputies he was recording the conversations , and none of the deputies gave their consent to be recorded . The defendant was arrested and charged under the wiretapping statute ( Fl . Stat . § 934.03 ) and other crimes . He filed and lost several dipositive motions to suppress and dismiss . The defendant then plead nolo contender to five counts of unlawful interception of oral communication ,
one count of battery on a law enforcement officer , and one count of resisting arrest with violence . Defendant then appealed .
On appeal , the defendant argued that “ the recorded conversations did not fall under the definition of “ oral communication ” as defined by section 934.02 ( 2 ), Florida Statutes , because the deputies did not have an expectation of privacy .” See id .
The Fifth DCA agreed with the defendant and ruled that “ because the deputies did not have a reasonable expectation of privacy when they spoke with Waite over the phone in their official capacities as law enforcement officers regarding public business , the recordings did not fall within the definition of “ oral communication ” in section 934.02 ( 2 ), Florida Statutes ( 2020 ), such that the wiretapping statute , section 934.03 ( 1 )( a ), applied .” See id . The court then reversed the denial of the rule 3.190 ( c )( 4 ) motion to dismiss filed on the wiretapping charges and remanded the case for further proceedings . See id . The Appellate court in all other respects affirmed the case .
mr . Waite , the defendant , didconcede thathedidnotinform thedeputieshe wasrecordingthe conversations , and noneofthedeputies gavetheirconsent toberecorded .
Therefore , the main takeaway in this case is that officers do not have a reasonable expectation of privacy when they speak with a suspect / defendant / civilian over the phone in their official capacities as law enforcement officer regarding public business .
Also , the Florida Constitution recognizes that “[ a ] public office is a public trust ” and “[ t ] he people shall have the right to secure and sustain that trust against abuse .” Therefore , it can also be argued that any conversations police officers have at work with a suspect / defendant / civilian are available under the sunshine laws of Florida . See : § 8 . Ethics in government .
In sum , there is a First Amendment right to record police officers in their official duties in public . And this includes videotaping and phone calls regarding public business . n
Author : Amy Casanova-Ward – Florida Department of Financial Services
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