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Recordings Made Without Your Permission Sometimes May Be Used Against You

Many people believe if someone records them without their permission, the recording cannot be used in court.  A recent decision by the First District Court of Appeal, however, shows that is not always the case.

Corey Smiley was invited to the home of the women with whom he shared a two year old child.  While there Smiley and the woman got into an argument.  The woman recorded the argument on her cell phone.  The video depicted Smiley questioning the woman about the video and repeatedly trying to grab her phone.  It further showed Smiley shoving the woman and threatening to shoot her and their child.  The woman asked Smiley to leave her home several times.  The woman claimed after the recording ended Smiley brandished a gun.  She then fled with their child.

Smiley was arrested and charged with aggravated assault by threat with a deadly weapon and domestic violence battery.  Smiley subsequently sought to exclude the cell-phone video on the ground it had been illegally recorded without his consent.  The trial court denied his request and admitted the video at his trial.  Smiley was convicted of the charges.

On appeal, Smiley argued his recorded statements were obtained in violation of Florida’s wiretap law.  That law provides that with certain exceptions, it is unlawful to “[i]ntentionally intercept[ ] . . . any wire, oral, or electronic communication.” Florida Statute § 934.03 (2018). Unless all parties to the communication consent, or the interception is otherwise authorized by law, an interception of communications made in violation of the wiretap law is generally inadmissible as evidence in any trial or legal proceeding. Florida Statute § 934.06 (2018). When a communication has been unlawfully intercepted, the aggrieved party may move to suppress (i.e. exclude) the contents of the interception or any evidence derived from it.  A party who seeks to suppress evidence obtained in violation of the wiretap law must show the communications are the type protected by the statutory exclusionary rule.

The appellate court initially noted not all communications recorded without prior consent are excluded under the wiretap law. In that regard, the court stated the wiretap law protects only those oral communications made by a person with an expectation of privacy under circumstances reasonably justifying such an expectation. Thus, to support suppression of a communication under the wiretap law, the person who made the statement must show more than a subjective expectation of privacy.  Rather, they must show that they have a reasonable expectation of privacy under the circumstances, which depends on one’s actual subjective expectation of privacy as well as whether society is prepared to recognize that expectation as reasonable.  Thus, according to the appellate court, to suppress the video evidence in his case, Smiley would have to demonstrate he had a subjective expectation of privacy in his statements and that his expectation was one society would deem reasonable.

Smiley contended he had a reasonable expectation of privacy because he did not give the victim consent to record him with her cell phone and because his statements were made in the privacy of the victim’s home, where he frequently stayed. The appellate court disagreed.

First, the court noted the cell phone recording showed Smiley trying to grab the phone from the victim’s hand, and he made statements on the video indicating he was aware of being recorded. Thus, the court concluded, Smiley did not have a subjective expectation of privacy in his statements, as they were recorded with his knowledge.  The court contrasted Smiley’s circumstances with those of the case of  McDade v. State, 154 So. 3d 292 (Fla. 2014).  There the defendant had a subjective expectation of privacy in his statements because the recording device was hidden inside the victim’s shirt.  Because the facts supported the trial court’s finding that Smiley knew he was being recorded, Smiley failed to show that he had a subjective expectation that his statements were not subject to interception.

Furthermore, the court found that even if Smiley had a subjective expectation that his statements made in the victim’s home were private, those statements would not qualify as “oral communications” protected under the wiretap law because any expectation of privacy under the circumstances of his case is not one society recognizes as reasonable. In this vein, the court observed although society generally recognizes as reasonable an expectation of privacy in conversations conducted in a private home, the reasonableness of that expectation assumes the speaker has permission to be there in the first place.

The court then stated that although Smiley had frequently stayed at the victim’s home, his purported expectation of privacy on the day of the altercation was not automatic. Rather, the court found that while Smiley may have been invited to the victim’s home as a guest initially, during the argument the victim repeatedly demanded him to leave.  At that point, the court found any expectation of privacy Smiley may have had was no longer reasonable or justified.

Because Smiley did not have a reasonable expectation of privacy in statements he knew were being recorded and that were made after the victim repeatedly asked him to leave,  his statements were not “oral communications” subject to exclusion under Florida’s wiretap law. The appellate court therefore affirmed Smiley’s judgment and sentence.

If you’ve been arrested for any crime based on evidence recorded on a cell phone or otherwise, that evidence may be subject to suppression and excluded from your case.  In that event the State may be forced to drop or dismiss your case, or to substantially reduce your charges.  If your case involves you being audio or video recorded without your knowledge, it’s very important you contact a Jacksonville criminal attorney experienced with Florida’s wiretap law and its recent applications.  Call now for an absolutely free consultation to discuss how I can help you have the best chance of avoiding a criminal conviction and jail and / or prison due to your misdemeanor or felony arrest in Duval, Clay, Nassau, Baker or St. Johns Counties.