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.

Comments

[Dr. Ed 2]

Would this apply to Massachusetts?

[John F. Carr]

As far as I know the SJC decision in Hyde stands as a matter of state law: you can be convicted of secretly recording a police officer performing his official duties in public, in Hyde’s case a traffic stop. On the other hand, when you are in federal court the Project Veritas precedent from the First Circuit says you can secretly record in similar circumstances. Under the AEDPA a federal habeas petition must be based on Supreme Court precedent, which means the federal courts can’t get you out of Massachusetts prison if you record a police officer. There is a chance that the Supreme Judicial Court will change its mind if a First Amendment challege to a conviction reaches it.

https://bostonbar.org/journal/secretly-recording-public-officials-challenges-to-the-massachusetts-wiretap-act/

[mse326]

Should also add that AEDPA doesn't apply on direct appeals so SCOTUS can review the question de novo on the merits if it grants cert at that stage

[Dr. Ed 2]

Is there still a distinction between "secretly" and "with consent"?

I remember at one point, when camcorders first came out, you had to disable audio because even though the cops clearly saw the camcorder (they were big back then), they hadn't given PERMISSION to be recorded.

And then I vaguely remember something changing and as long as you were TOLD you were being recorded, that covered consent.

[Jumaira]

If you're told you're being recorded, and you continue to talk, the consent is implied.

[David Nieporent]

Is there still a distinction between “secretly” and “with consent”?

Yes. They're opposites.

[David Nieporent]

Would this apply to Massachusetts?

I'll bite: why would a Florida Court of Appeals decision interpreting Florida law and the Florida constitution apply to Massachusetts?

[santamonica811]

David. I'll be charitable here. I'm assuming that Ed is saying, " Interesting case, in a,different jx. Is the law the same in Mass?"

If not...then I'm also not understanding his post.

[Brett Bellmore]

Hurrah.

"it cannot be said that any of the deputies exhibited a reasonable expectation of privacy that society is willing to recognize."

Nor should it be willing to recognize any expectation of privacy for police conversing with citizens, against those citizens.

[Jumaira]

No government employee should have any expectation of privacy in the execution of their official duties. If they're off duty, they get the same expectations of privacy that we do.

[Absaroka]

“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.”

Is this limited to Florida, or is this a national rule?

Most large businesses start their phone tree with ‘this call may be recorded…’, but I have heard people wishing to have their own recording say some businesses will hang up if the caller says the same thing to the first human that comes on the line. That asymmetry seems wrong to me.

[Dr. Ed 2]

"some businesses will hang up if the caller says the same thing to the first human that comes on the line."

Sounds like the medical billing outfit I had the pleasure of dealing with a few years back. Hospital A bought Hospital B and BOTH were billing for a lab test that Mass GIC (insurance) had already paid for, and Mass GIC was quite helpful in providing documentation that they had, in fact, paid for it.

They would remind me that the conversation was being recorded in an attempt to bully me, and my response was "and I will be able to subpoena it if I have to sue you over this." That was effective when the delta charlies figured out what "subpoena" meant.

[Bored Lawyer]

IMO, the whole two-party consent thing is bogus. If I am speaking with someone over the phone, they hear everything I say. Barring recordation just invites dishonesty about what was said. It's very different from a stranger wiretapping into a conversation between two other people. I fail to see the public interest in requiring two-party consent.

I also wonder about the federalism issue when someone in a one-party consent state is speaking with someone in a two-party consent state. Federal law only requires consent of one party, as do most states. So I question whether the two-party consent state can impose its law on those in other states. (This case was all within Florida, so that would not be relevant.)

[Jumaira]

That's something that has never been tested. My general feeling is that for an interstate communication, the federal law should apply and preempt the application of a conflicting two-party consent regime required by one of the states, but as far as I know, it hasn't been heard.

[David Nieporent]

I also wonder about the federalism issue when someone in a one-party consent state is speaking with someone in a two-party consent state. Federal law only requires consent of one party, as do most states. So I question whether the two-party consent state can impose its law on those in other states. (This case was all within Florida, so that would not be relevant.)

That issue comes up from time to time but has never been resolved. What makes the federalism issue even more salient is that with the ubiquity of cell phones, you may very well have no idea where the person you're calling is physically located. (Presumably not the case if you're calling a government agency. But if you're calling an individual, you wouldn't even know what law applied.)

[Dr. Ed 2]

"I also wonder about the federalism issue when someone in a one-party consent state is speaking with someone in a two-party consent state. Federal law only requires consent of one party, as do most states. So I question whether the two-party consent state can impose its law on those in other states."

I have LONG wondered about that one, particularly if the person making the recording is in the 2 party state -- and how is one to KNOW where the other party actually is with cell phones?

I-95 in New Hampshire is only something like 19 miles, and with EZPass, you can now go through the once-infamous tollbooths at 55 MPH. So you can start a telephone conversation in Maine, and finish it a half hour later in Massachusetts, without the other party ever knowing which states you were in at the time.

[Jumaira]

Yes, the laws were written at a time when the area code meant you could easily find out where the person you were talking to was located. Cell phones eviscerated all of that.

[doug-sundseth]

"intentionally intercept or endeavor to intercept"

From Merriam-Webster's online dictionary:

Intercept: "1
a: to stop, seize, or interrupt in progress or course or before arrival
b: to receive (a communication or signal directed elsewhere) usually secretly"

A natural reading of "intercept" would not include recording by a primary party to a communication. The communication hasn't been "stopped" or "interrupt"ed, and I would strongly dispute the term "seize" as well, since it hasn't been denied to either party. Further, in that case this would not be "directed elsewhere", since it's directed to the parties involved in any of this sort of recording.

If Florida meant to prohibit recording of a conversation without consent from all involved parties, the legislature could have said exactly that.

I suspect there is either some definition of the word in FL statute that changes the ordinary meaning or some tortured definition arising from case law, but either offends me. One should be able to read a statute and discern its meaning without 3 years of law school and a specialty in a specific area of law.