According to the Florida Court of Appeal decision on Friday in Waite v. State, written by Judge Paige Kilbane, joined by Chief Judge James Edwards and Judge Scott Makar:
The case revolves around a prolonged dispute between Waite and the Citrus County Sheriff’s Office (“CCSO”). Since 2018, Waite has been in conflict with city employees and CCSO deputies over property boundaries. Throughout this dispute, Waite reported what he believed to be crimes to various state agencies and the media. As his relationship with the CCSO deteriorated, Waite began recording conversations with CCSO deputies.
In January 2021, Waite dialed 911 to report a possible trespassing incident involving CCSO members. He expressed his desire to file a complaint with internal affairs and mentioned having an email prepared to send. The 911 operator stated that a supervisor would call him back as she couldn’t provide the information he requested. Waite agreed and requested the call to be recorded. Later that day, Sergeant Edward Blair returned Waite’s call. Waite recorded the three-minute conversation without informing Sergeant Blair. He then sent the audio recording to the CCSO records department and requested an internal investigation. Subsequently, Waite was charged with violating section 934.03(1)(a), Florida Statutes (2020), for recording the conversation with Sergeant Blair without consent.
According to Florida’s wiretapping statute, it is illegal to intentionally intercept or attempt to intercept any wire, oral, or electronic communication. The statute defines “oral communication” as a spoken communication where the speaker expects privacy and the expectation is deemed reasonable by society. The question of whether citizens can record phone conversations with police officers acting in their official capacity is a novel issue. However, it has been established that there is a First Amendment right to record police officers in public. Meetings in an office setting have a semi-public nature, and the constitutional protections of the home do not extend to offices or places of business. The Florida Constitution emphasizes conducting public business in the open. Individuals conducting business over the phone do not have a reasonable expectation of privacy when the other party records the conversation, even if the call is made from a personal cell phone at home.
In this case, Waite recorded a phone conversation with Sergeant Blair and sent the recording to the CCSO to report alleged police misconduct. He had also recorded four other conversations with CCSO deputies. Given the circumstances, it is clear that the deputies did not exhibit a reasonable expectation of privacy that society recognizes.
It is important to note that all conversations involved public business, occurred while the deputies were on duty, and were conducted using work phones. Therefore, Waite did not violate section 934.03(1)(a) when recording conversations with the deputies, who were acting in their official capacities at the time, akin to having face-to-face conversations.
Representation for Waite is provided by Alexei V. Lizanich (Law Offices of Melisa Militello) and Steven L. Brannock and Sarah B. Roberge (Brannock Berman & Seider).
