Florida has decided to afford fairly significant privacy protections to communications in Chapter 934 of the Florida Statutes. Specifically, Fla. Stat. 934.03(1)(a) makes it illegal to “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication.” To do so can be a felony of the third degree or first-degree misdemeanor, depending upon the specific circumstances of the interception.
Furthermore, Fla. Stat. 934.06 requires suppression of evidence when Fla. Stat. 934.03 has been violated, to wit:
“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter. The prohibition of use as evidence provided in this section does not apply in cases of prosecution for criminal interception in violation of the provisions of this chapter.”
As such, it would seem the law would require suppression of evidence, and potential criminal liability, when wire and electronic communications between two devices are intercepted and when oral communications between two people are intercepted. The law is strikingly silent on the ability to video record people or events. To this reader of the law, it would appear that video recordings, by individuals who are not law enforcement (there are other Constitutional protections against unreasonable searches and seizures by law enforcement), would not be prohibited by this law, minus the oral communications that might be contained in the recording.
But, to understand this law more fully, we must go to the definition of “Oral Communication” contained in Fla. Stat. 934.02. It defines an oral communication as “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.” [emphasis added]
Apparently, the Florida Legislature left it to the Courts to define the circumstances that would justify an expectation of privacy in such communications. Of course, if all parties to the communications consent to their being recorded, there is no expectation of privacy. From court decisions, we know that the backseat of a police vehicle does not have such an expectation (State v. Smith, 641 So.2d 849 (Fla. 1994)), nor jail phone calls (Jackson v. State, 18 So.3d 1016 (Fla. 2009)), nor communications in a business (State v. Caraballo, 198 So.3d 819 (Fla. 2d DCA 2016)).
So how do courts figure out what is protected and what is not? In determining whether the speaker’s expectation of privacy is reasonable, courts examine the location of the conversation, the type of communication at issue, and the manner in which the communication was made. Abdo v. State, 144 So. 3d 594, 596 (Fla. 2d DCA 2014) (citing Stevenson v. State, 667 So. 2d 410, 412 (Fla. 1st DCA 1996).
However, even if the communication is one that society, and the courts, would generally recognize as one afforded protection under the law, that protection can be lost. Citing State v. Inciarrano, 473 So.2d 1272 (Fla. 1985), an Eighteenth Circuit Judge held that it is well established under Florida law that an individual loses that reasonable expectation of privacy when they commit criminal or otherwise unlawful acts. As such, when the defendant entered a private massage room with the intent to commit a battery upon the client by placing his penis on her, that reasonable expectation of privacy was lost. Therefore, the video of the criminal act was admissible. State v. Grasso, 32 Fla. Law Weekly Supp. 399c (Fla. 18th Circuit Court April 1, 2022).
While this is the correct result of any oral communications made and captured on the video, it failed to address the video itself. By a strict reading of the statute, the Court could have simply held that the video of the criminal act, because it was recorded without law enforcement assistance, was simply not covered by the law and, therefore, admissible.
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