STATE OF FLORIDA, APPELLANT,
v.
DAVID M. SELLS, APPELLEE
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Florida appeals the dismissal of charges against deputy Sells for attempting to record a conversation with his superior without consent. The court reverses, holding that mere suspicion or knowledge that a conversation might be recorded does not eliminate the speaker's reasonable expectation of privacy, and therefore does not bar prosecution under Florida's wiretapping statute.
The court holds that mere suspicion or implied knowledge that a communication might be recorded does not eliminate a reasonable expectation of privacy in that communication and does not immunize a violator from prosecution as a matter of law. The state established a prima facie case sufficient to withstand a motion to dismiss, and the case should be submitted to a jury.
[1] A mere suspicion or implied knowledge that a communication might be recorded does not make unreasonable the expectation of privacy in that communication, nor does it immu…
[2] The legislature intended that each party to a private conversation should enjoy an expectation of privacy in that conversation.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We do not agree that mere suspicion or implied knowledge that a communication might be recorded makes unreasonable the expectation of privacy in that communication, and immunizes a violator from prosecution as a matter of law.”
The court's core holding rejecting the defendant's argument that suspicion eliminates privacy expectations.
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Join FLexlaw to unlock all legal intelligenceSells, a sheriff's deputy, attempted to record a conversation with his superior officer, Chief Deputy Crowder, in Crowder's office at Sells' request. …
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ANSTEAD, Judge.
The state challenges an order dismissing charges against David Sells, for endeavoring to intercept oral communications in violation of section 934.03(l)(a), Florida Statutes (1989). We reverse and hold that there is a triable issue.1 We do not agree that mere suspicion or implied knowledge that a communication might be recorded makes unreasonable the expectation of privacy in that communication, and immunizes a violator from prosecution as a matter of law.
Sells, a sheriff’s deputy, attempted to record a conversation he had with his supe rior officer, Chief Deputy Crowder, in Crowder’s office and at Sells’ request. Crowder admitted that he suspected Sells might record their conversation, as rumors to that effect were circulating throughout the department, and that he arranged the chairs in his office so that he could determine whether Sells was carrying a tape recorder. In enacting chapter 934, the legislature intended that each party to a private conversation should enjoy an expectation of privacy in that conversation. Shevin v. Sunbeam Television Corp., 351 So. 2d 723 (Fla.1977).
The statute is designed to protect victims of illegal interceptions, not those who perpetrate them. State v. News-Press Pub. Co., 338 So. 2d 1313 (Fla. 2d DCA 1976).
The statute bars recordings of conversations without the consent of the other party. Shevin.
To permit recordings where the recorded party may be “suspicious” would completely vitiate the consent requirement. For instance, a person talking on the telephone with someone else may hear a pinging sound or other unusual noise and may suspect that the sounds could be associated with recording. Does that mean he has consented to the recording? We think not. In effect such a holding would mean that someone who violates the statute in a clumsy manner would be immune from prosecution as a matter of law. The message would be that one may intercept private communications with impunity as long as one does so in a manner that might suggest the conversation is being intercepted.
We hold that the state has made out a prima facie case sufficient to withstand a motion to dismiss. While a jury may conclude that the statute has not been violated as a matter of fact, we believe the circumstances of this case require submission of the case to a jury.
WARNER, J., and WALDEN, JAMES H., Senior Judge, concur. . In dismissing the charges against appellee, the trial court also relied upon State v. Inciarrano, 473 So. 2d 1272 (Fla.1985), for the principle that section 942.03 protects only those communications in which the speaker has a justifiable expectation of privacy. This general proposition remains true.
However, based upon the particular facts of the case, the Inciarrano court narrowed the issue to "whether the tape recording made by a victim of his own murder must be excluded from evidence pursuant to chapter 934.” Ultimately, the supreme court concluded that the recording made by Inciarrano's victim did not fall within the statutory proscription of chapter 934 because even if Inciarrano had a subjective expectation of privacy, society would not recognize it as justifiable since Inciarrano went to the victim’s office to do him harm. Id. at 1275.
Cf. LaPorte v. State, 512 So. 2d 984 (Fla. 2d DCA 1987), rev. denied, 519 So. 2d 987 (Fla.1988).
In our opinion, the narrow "criminal act" exception to the prohibition on interception which appellee draws from the language of Inciarra.no is limited to cases with similar facts, and has no application here.
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Citator
Cited By
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Mozo v. State, 632 So. 2d 623 (Fla. 4th DCA 1994)…s a gift to the Mozos and so on. In any event, we do not believe knowledge of a sticker that includes the ambiguous notation that "Privacy of communication may not be insured" constitutes a waiver of a person’s right of privacy. See State v. Sells, 582 So. 2d 1244 (Fla. 4th DCA 1991) (The suspicion that one’s privacy may be invaded does not waive the right to privacy). Indeed, it is unlikely that anyone would contend that such a sticker on a regular telephone would constitute such a waiver. . A contrary hold…
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Dep't of Agric. & Consumer Servs. v. Edwards, 654 So. 2d 628 (Fla. 1st DCA 1995)…s suspected that the appellee might be violating section 943.03, Florida Statutes (1993), negate their reasonable expectation not to be subject to electronic in [*634] terception. State v. Edwards, 645 So. 2d 588 (Fla. 1st DCA 1994); State v. Sells, 582 So. 2d 1244 (Fla. 4th DCA 1991). The hearing officer and the commission had no basis to find that appellee’s supervisors did not have a reasonable expectation that they would not be subject to illegal taping; thus, the commission’s decision should be reversed…1 / 2
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State v. Edwards, 645 So. 2d 588 (Fla. 1st DCA 1994)…guage would appear to exclude a situation in which the person being recorded actually suspects and expects that the subject communications will be recorded, the Fourth District expressly rejected such a construction of the statute in State v. Sells, 582 So. 2d 1244 (Fla. 4th DCA 1991). The Sells court reasoned that the essence of the statute is its consent requirement and held that to restrict application of the statute where the recorded party expects the illegal activity “would completely vitiate the consent…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985)
- State v. Parsons, 351 So. 2d 723 (Fla. 1977)
- State v. News-Press Publ'g Co., 338 So. 2d 1313 (Fla. 2d DCA 1976)
- LaPORTE v. State, 512 So. 2d 984 (Fla. 2d DCA 1987)