STATE OF FLORIDA, APPELLANT,
v.
JERRY NELSON EDWARDS, APPELLEE
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Florida's appellate court reversed the trial court's dismissal of a wiretapping charge under section 934.03(1)(a), holding that whether oral communications were illegally intercepted must be submitted to a jury, even where the recorded party suspected the recording was occurring.
The court held that the statute's essence is its consent requirement, and the question of whether section 934.03 has been violated must be submitted to a jury. The statute is not excluded from application merely because the recorded party expects or suspects the illegal recording activity.
[1] A criminal statute prohibiting the interception of oral communications is violated even if the speaker suspects their conversation is being recorded, as the focus is on t…
[2] The expectation of privacy in an oral communication, for the purposes of Florida's interception statutes, is not negated by the speaker's suspicion of being recorded.
Previewing 2 of 4 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“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 requirement."”
Establishes that consent, not expectation of recording by the recorded party, is the core requirement of the statute
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Join FLexlaw to unlock all legal intelligenceJerry Nelson Edwards tape recorded statements made by his superiors at work. The superiors had set up a meeting because they suspected Edwards was att…
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KAHN, Judge.
The court below granted appellee Edwards’ Criminal Rule 3.190(c)(4) motion and dismissed a criminal charge brought under section 934.03(l)(a), Florida Statutes. Although the order does not elaborate upon the trial court’s reasoning, it seems that the court agreed with the argument that although Edwards had tape recorded certain statements made by his superiors at work, these statements did not constitute “oral statements” within the purview of section 934.03, since the superiors actually set up a meeting because they suspected Edwards was attempting to tape record their conversations.
Section 934.02(2), Florida Statutes, defines “oral communications” as any 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.” Although this language 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 requirement.” 582 So. 2d at 1245. We agree with the Sells court that the question of whether the statute has been violated must be submitted to a jury.
REVERSED.
ZEHMER, C.J., and VAN NORTWICK, J., concur.
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Citator
Cited By
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Dep't of Agric. & Consumer Servs. v. Edwards, 654 So. 2d 628 (Fla. 1st DCA 1995)…to be recorded. Nor does the fact that the officials 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 tapin…1 / 2
Authorities Cited
- State v. Sells, 582 So. 2d 1244 (Fla. 4th DCA 1991)