ELIZABETH OTERO N/K/A ELIZABETH ALDERMAND, APPELLANT,
v.
JAVIER H. OTERO, APPELLEE
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In this post-dissolution family law case, the mother appealed the admission of a tape recording of a conversation with her minor child that was accidentally recorded by a neighbor's answering machine. The Florida appellate court affirmed the admission, holding that the accidental nature of the recording did not violate Florida's wiretapping statute and therefore the statutory exclusionary rule did not apply.
The admission of the tape did not violate Florida's wiretapping statute because the recording was accidental rather than intentional. Since there was no violation of chapter 934, the statutory exclusionary rule under section 934.06 did not apply, and the trial court properly admitted the tape into evidence.
[1] The accidental recording of a conversation by an answering machine does not constitute an intentional interception of wire communication under Florida Statutes Chapter 93…
[2] The statutory exclusionary rule prohibiting the admission of intercepted communications does not apply when the recording was accidental and did not violate Chapter 934.
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“Chapter 934 prohibits the intentional interception of wire communication.”
Establishes that the statutory prohibition only applies to intentional interceptions, not accidental ones.
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Join FLexlaw to unlock all legal intelligenceA nine-year-old child accidentally activated a neighbor's answering machine while calling her mother, resulting in an unintentional recording of their…
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PER CURIAM.
In this post-dissolution proceeding, the mother appeals an order modifying visitation. The principal claim is that the trial court erred by admitting into evidence a tape recording of a conversation between the mother and the minor child. The nine-year-old child, while visiting a neighbor, called her mother. In so doing, she accidently activated the neighbor’s answering machine, which unbeknownst to the mother or child, recorded the conversation.
Later, in listening to her telephone messages, the neighbor heard the recorded conversation and gave the tape from the answering machine to the father. The parents and child were then in court-ordered therapy, and the father gave the tape to the therapist. The therapist and court-appointed guardian ad litem considered its contents in making a recommendation to modify the visitation arrangements.
We conclude that the admission of the tape into evidence did not violate the statutory exclusionary rule found in section 934.06, Florida Statutes (1997). Chapter 934 prohibits the intentional interception of wire communication. See § 934.03(l)(a), (b), Fla. Stat. It also prohibits the intentional disclosure of the contents of a wire communication, “knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communications in violation of this subsection _” § 934.03(l)(c), Fla. Stat. (emphasis added). Here, the court found that the taping occurred accidently, not intentionally. It did not violate the statute, and thus the statute did not prevent the father from turning over the tape to the therapist or guardian ad litem.
The statutory exclusionary rule found in section 934.06 prohibits the contents of an intercepted communication from being received in evidence in any trial “if the disclosure of that information would be in violation of this chapter.” Id. As there was no violation of chapter 934, it follows that the objection to the admission of the tape into evidence was properly overruled. The mother relies on Markham v. Markham, 272 So. 2d 813 (Fla.1973), but in that case there was an intentional, not accidental, wire tapping. The rule in Markham is not applicable here.
Affirmed.*
*
The trial court order found the tape to be cumulative of the live testimony and considered it only for purposes of corroboration.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Tapanes v. State, 43 So. 3d 159 (Fla. 4th DCA 2010)…2d 747, 755-56 (Fla.2001)). We also find the trial court did not abuse its discretion by admitting an unintentionally taped conversation between the appellant and victim. See Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001); Otero v. Otero, 736 So. 2d 771 (Fla. 3d DCA 1999) (concluding that a taped conversation was properly admitted into evidence where the taping occurred accidently, not intentionally). Finally, the failure to conduct a Richardson hearing regarding the testimony of Detective Bianchi…
Authorities Cited
- Markham v. Markham, 272 So. 2d 813 (Fla. 1973)