Conviction for Recording Own Phone Conversation with Deputy Sheriff Overturned

From the Florida Court of Appeal decision Friday in Waite v. State, written by Judge Paige Kilbane, joined by Chief Judge James Edwards and Judge Scott Makar:

This case stems from a lengthy dispute between Waite and the Citrus County Sheriff's Office ("CCSO"). Since 2018, Waite quarreled over property boundaries with city employees and CCSO deputies. For the duration of this dispute, Waite would report what he believed to be crimes to various state agencies and the media. As his relationship with the CCSO continued to devolve, Waite started recording conversations with CCSO deputies.

In January 2021, Waite called 911 to report what he perceived to be a trespassing incident involving members of the CCSO. Waite insisted that he wanted to file a complaint with internal affairs and that he had an email ready to send. The 911 operator explained that she would have a supervisor give him a call back as she could not provide the information he was requesting. Waite agreed and informed the 911 operator he wanted the call to be recorded. Later that same day, Sergeant Edward Blair called Waite back. Waite recorded the three-minute phone conversation but did not inform Sergeant Blair he was doing so. Waite sent the audio recording of that call via email to the CCSO records department and requested an internal investigation…. [Waite was criminally charged with violating] section 934.03(1)(a), Florida Statutes (2020), by recording the conversation with Sergeant Blair without his consent….

Waite pleaded no contest after his motion to dismiss was denied, but then appealed the denial of the motion to dismiss, and the appellate court agreed with him.

Under Florida's wiretapping statute, it is unlawful for any person to intentionally intercept or endeavor to intercept any wire, oral, or electronic communication. "'Oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication." "[F]or an oral conversation to be protected under section 934.03 the speaker must have an actual subjective expectation of privacy, along with a societal recognition that the expectation is reasonable."

The question of whether citizens may record telephone conversations with police officers acting in their official capacities appears to be an issue of first impression. However, it has previously been established that there is a First Amendment right to record police officers conducting their official duties in public. Additionally, it has been recognized that meetings taking place in an office context have "a quasi-public nature," and the constitutional protections of the home do not extend to an office or place of business. {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." Art. II, § 8, Fla. Const. Thus, "the Florida Constitution contemplates that public business is to be conducted in the 'sunshine.'"} Moreover, individuals conducting business over the phone do not enjoy a reasonable expectation of privacy on business phone calls where the other party to the conversation records said conversation, even when business is conducted from the person's cell phone at home.

Here, Waite recorded a telephone conversation with Sergeant Blair. He subsequently emailed the audio recording to the CCSO to report what he believed to be police misconduct and requested an internal investigation. It was later discovered that Waite had similarly recorded four other conversations with CCSO deputies. Under these circumstances, it cannot be said that any of the deputies exhibited a reasonable expectation of privacy that society is willing to recognize.

Importantly, this is based on the record before us as there is no dispute that all conversations concerned matters of public business, occurred while the deputies were on duty, and involved phones utilized for work purposes. As such, Waite did not violate section 934.03(1)(a) when he recorded the conversations with the deputies, all of whom were acting in their official capacities at the time of the recordings, just as if he had the conversations face-to-face….

Separate charges for "battery on a law enforcement officer and resisting arrest with violence" stemming from the arrest were upheld, however.

Alexei V. Lizanich (Law Offices of Melisa Militello) and Steven L. Brannock and Sarah B. Roberge (Brannock Berman & Seider) represent Waite.