Victim’s Cell Phone Recording of Defendant’s Statements In Her Home Could Be Used In Court

In Florida, we have a wiretap law that, with some exceptions, prohibits people in Florida from intentionally recording verbal, wire or electronic communications unless all of the parties to the communication consent to the recording. If a party does record a communication in violation of this Florida wiretap law, the lawyer for the opposing side can move to suppress that evidence and keep it out of court. There may be other penalties for illegally recording a communication as well.

In a case near Jacksonville, Florida, the defendant went over to his girlfriend’s house, and they got into an argument. Once the argument started, the girlfriend started recording the defendant with her cell phone. The defendant ultimately pushed the girlfriend and threatened her with a gun. He was charged with domestic battery and aggravated assault. The state sought to introduce the girlfriend’s recording of the incident at the trial. The criminal defense lawyer objected arguing that the recording violated the Florida wiretap law and was therefore inadmissible.

The court disagreed with the criminal defense attorney and allowed the recording into evidence. The Florida wiretap law only covers communications that are made with a reasonable expectation of privacy. In other words, the Florida wiretap law only deals with conversations and electronic communications that people would normally expect to be private. Private phone calls and texts and emails would normally be covered by the wiretap law. Conversations in public or over social media where other people can see or hear them would not be covered under the wiretap law. In this case, the criminal defense lawyer argued this was a private conversation because it occurred in the girlfriend’s home. However, the judge rejected that argument because the evidence indicated the defendant knew he was being recorded by the cell phone and kept talking. He even tried to take the cell phone away from his girlfriend as she was recording. The analysis by the court seems to be flawed as one would normally have a reasonable expectation of privacy in a private home of a girlfriend when others are not around. It seems to be more of a case of implied consent where the defendant knew the recording was taking place yet decided to continue arguing anyway. Proper result but improper reasoning.

Also, the court noted that the girlfriend told the defendant to leave several times before the argument took place. The court determined that the defendant lost any reasonable expectation of privacy in the home since he became a trespasser without permission to be in the home. That also made it so his statements were no longer covered by the Florida wiretap act.