Calls with Florida police can be recorded without consent, appeal court rules
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TAMPA, Fla. (WFLA) — A Florida appeals court ruled in favor of a Floral City man in a years-long dispute with the Citrus County Sheriff’s Office, bringing new insight into how the state’s wiretapping law applies to law enforcement.
The court threw out five charges of unlawful interception of oral communications (wiretapping) against Michael Leroy Waite, 63, stating law enforcement officers have no expectation of privacy while acting in their official capacity.
According to court documents, Waite had been involved in “a lengthy dispute” with the sheriff’s office and city officials over his property boundaries since 2018. Things escalated after he began recording his phone calls with deputies.
In January 2021, he called 911 and accused deputies of trespassing on his property. Waite recorded a three minute call with Sergeant Edward Blair, a CCSO supervisor, without telling him he was being recorded.
Detectives secured an arrest warrant after Waite emailed the recording of the call to the sheriff’s office records department, calling for an internal investigation.
“We in no way suggest the CCSO committed police misconduct,” the opinion stated. “Rather, this was how Waite perceived the situation.”
State prosecutors alleged Waite violated the state’s wiretapping law by recording the conversation without the Sergeant’s consent.
Waite was accused of elbowing a deputy in the face when the sheriff’s office went to his home to serve the warrant, which resulted in additional charges of battery on a police officer and resisting arrest with violence. They found proof of the alleged wiretapping on an audio recording device with three more recordings of CCSO phone calls.
A Citrus County trial court agreed with the state’s argument and denied Waite’s motion to dismiss. He appealed the decision to the Fifth District Court of Appeal.
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In her opinion filed last week, Judge Paige Kilbane said citizens’ right to record police in public has a lengthy legal precedent and is permitted under the First Amendment. She pointed to a 1982 ruling that determined “constitutional protections of the home do not extend to an office or place of business,” and another case that denied privacy protections for phone calls for business purposes.
Of Waite’s recorded phone calls, Kilbane wrote, “Under these circumstances, it cannot be said that any of the deputies exhibited a reasonable expectation of privacy that society is willing to recognize.”
“Importantly, this is based on the record before us as there is no dispute that all conversations concerned matters of public business, occurred while the deputies were on duty, and involved phones utilized for work purposes,” Kilbane wrote. “As such, Waite did not violate section 934.03(1)(a) when he recorded the conversations with the deputies, all of whom were acting in their official capacities at the time of the recordings, just as if he had the conversations face-to-face.”
The court reversed the wiretapping charges, but affirmed the charges of battery and resisting arrest with violence against Waite.
In a statement, Citrus County Sheriff Mike Prendergast said he believes the case will have impacts beyond Florida law enforcement.
I have been in contact with our State Attorney’s Office in reference to this case and how it will impact Florida’s law enforcement professionals in the future. I believe if this case is not taken to a higher court, the implications will extend far beyond just law enforcement based upon the Court’s decision. It will spread to all entities required to adhere to Florida’s Sunshine law, just as long as a ‘public business’ nexus can be established. I have full faith in our State Attorney’s Office, Florida’s Attorney General, and the Judicial System to ensure final rulings equally protect all parties involved.
Citrus County Sheriff Mike Prendergast
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The appeal court ruling came on the same day Gov. Ron DeSantis signed two bills into law that aim to “protect police.” One bill curtails citizen oversight boards, which allowed members of the public to investigate cases of police misconduct. The other bill requires people to stay 25 feet away from officers while they conduct their official duties in public.
The Florida Supreme Court ruled in November 2023 that officers’ identities are not protected under Marsy’s Law, which is intended to hide information that could be used to track down crime victims. The court overturned an appeal court decision in favor of a statewide police union. The Florida Police Benevolent Association argued two Tallahassee Police Officers who fatally shot suspects should not have their names released.
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