Many Florida and Jacksonville lawyers are asked about whether it is illegal to record telephone calls. Florida Statute section 934 governs the recording of electronic communications in Florida. It’s extremely important to seek legal advice from an attorney if you are considering recording telephone calls or oral communication between parties. This article does not serve as legal advice.
The following was posted on www.floridacriminallawyerblog.com and I thought it was worth re-posting.
In Florida, generally all parties must consent to the recording or the disclosure of the contents of any wire, oral or electronic communication. This means phone calls! Recording, disclosing, or endeavoring to disclose without the consent of all parties is a felony, unless the interception is a first offense committed without any illegal purpose, and not for commercial gain. Florida Statute section 934.03.
Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a "reasonable expectation of privacy" in that communication. However, this oral communication must be one that is made in a setting in which a person does not have a “reasonable expectation of privacy.” There are various circumstances when a person may not have a reasonable expectation of privacy. See also Florida Statute section 934.02 for the definition of “oral communication.” See also Stevenson v. State, 667 So.2d 410 (Fla. DCA1996); Paredes v. State, 760 So.2d 167 (Fla. DCA 2000).
In Cohen Brothers, LLC v. ME Corp., S.A., 872 So.2d 321 (Fla. 3rd DCA 2004), the District Court of Appeal for the Third District of Florida held that members of a limited liability company’’s (LLC) management committee did not have a reasonable expectation of privacy with respect to participation in telephone conference calls with other committee members to discuss continued financing of the LLC, and thus could not hold the committee members liable for recording the conference calls.
There are also cases which state the recording of a phone call, even without the consent of the party, may be admissible in Court if the recording involved the planning or perpetrating of a crime. This does not mean the recording was legally made by the person recording the call. The Courts have merely said that “right to privacy” concerns are outweighed by the fact that the person is planning to commit a crime and the recording may be admissible. In State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985), the Florida Supreme Court held that there may be circumstances under where a reasonable expectation of privacy will not be justified. The concurring opinion points out that the majority opinion holds that if someone is committing a crime they do not have a privacy right. This particular defendant, Inciarrano, went into someone's business and shot and killed them and the entire event was being recorded by the victim without the defendant’s knowledge. The Court held the tape to be admissible at trial which led to the defendant’s conviction for murder.
The Eleventh Circuit federal appellate court that governs federal law in Florida has held that because only interceptions made through an ““electronic, mechanical or other device”” are illegal under Florida law, telephones used in the ordinary course of business to record conversations do not violate the law. The court found that business telephones are not the type of devices addressed in the law and, thus, that a life insurance company did not violate the law when it routinely recorded business-related calls on its business extensions. Royal Health Care Servs., Inc. v. Jefferson-Pilot Life Ins. Co., 924 F.2d 215 (11th Cir. 1991). However, this is federal law. Florida state law makes it illegal to record conversations without all parties consent; this is exactly why many companies will announce on their prerecorded messages that "this call may be monitored or recorded for training purposes" when you first connect with their company telephone lines.
Anyone whose communications have been illegally intercepted may recover actual damages or $100 for each day of violation or $1,000, whichever is greater, along with punitive damages, attorney fees and litigation costs. Fla. Stat. ch. 934.10. Each recorded phone call made illegally that is a felony is punishable by up to five years in prison and a maximum $5,000.00 fine.
Basically, in Florida, the bottom line is phone calls cannot be recorded without the permission of all parties. There are very few limited exceptions with almost no exceptions for the lay public. One exception under the statute, is that police may make recorded phone calls without obtaining the permission of the person called. Often Florida law enforcement officers will have people who are victims or cooperating witnesses make phone calls to suspects to extract confessions or admissions from them, all the while the call is being recorded and the witness is being prompted what to say by the agents. This type of admission is admissible in Court and can be extremely critical evidence to aid the prosecution.
Every state has specific laws applying to the recording of telephone calls. What is the law in Florida is not the law in other states. For example, in Georgia, the law expressly provides that it does not prohibit a person who is a party to a conversation from recording, and allows recording if one party to the conversation has given prior consent. Ga. Code Ann. §§ 16-11-66. See also Malone v. State, 541 S.E.2d 431 (Ga. Ct. App. 2000). However, the divulging of these conversations may be illegal.
Disclaimer: every state has different laws pertaining to the recording and dissemination of recorded phone calls. If you are thinking of making recordings, it is strongly advised that you retain an attorney in your area to seek advice before doing so. Nothing said in this brief article can be relied upon as legal advice. My intent in writing this was merely to serve as a guidepost for folks to understand how complicated the laws are surrounding this area of the law, provide some information to the public so people would not be unwittingly committing crimes and impress upon folks how serious a law violation it may be to record calls without the other person’s knowledge.
Monday, July 27, 2009
Times Union Reports: Drive started to decriminalize pot in Jacksonville Beach
Please see the very interesting article below which recently appeared in the Florida Times Union:
A proposed Jacksonville Beach amendment is taking aim at the current marijuana laws, with hopes to make part of them vanish into a puff of smoke.
The nation’s largest marijuana advocacy group is pushing a plan to make possession of less than 20 grams a civil infraction instead of a criminal misdemeanor. If the group’s petition receives 1,442 signatures from registered Jacksonville Beach voters, a decriminalization amendment would be added to the ballot in the November 2010 general election.
If it passes, it would be the first of its kind in Northeast Florida, and organizers say they would push it in the other Beaches communities and Jacksonville. Nationally, similar amendments have passed in several other cities, including Denver, and a handful of states.
“It’s the will of the people and a product of our grandparents,” said Ford Banister, chapter president of the National Organization for the Reform of Marijuana Laws, who’s spearheading the proposition. “It’s a political hot potato, and nobody wants to touch it. We’re out to change that.”
The proposed amendment would call for a civil fine of $100 for the possession of 20 grams or less –– enough for about 10-15 joints. The marijuana would also be confiscated. State law calls for up to a year behind bars and $1,000 in fines. Jacksonville Beach police would have the option to enforce either law.
“The Beaches is small, conservative and generally Republican,” Banister said. “But we feel confident about it. Between church and the Navy, this will be a great test for the entire state.”
More than 14 million Americans smoke marijuana at least once a month, according to the National Institute on Drug Abuse.
Its use led to more than 900,000 arrests last year, according to NORML.
Jacksonville Beach police made 29 arrests for possession of marijuana under 20 grams since Jan. 1, records show.
While misdemeanor possession can lead to a one year sentence and a $1,000 fine, most first-time offenders typically settle with pleas, according to the State Attorney’s Office.
The biggest concern associated with the drug is the violence that stems from its sale and distribution, said Dan McCarthy, chief assistant to State Attorney Angela Corey.
“We don’t spend a whole lot of time dealing with marijuana possession cases,” he said. “But drugs are certainly a major part of criminal conduct. The problem in this county is violent crime, and drugs can often lead to that.”
But dropping marijuana possession to a civil infraction is becoming a growing national trend.
More than a handful of cities have decriminalized marijuana this year through similar local charters, said Allen St. Pierre, the group’s executive national director who oversee the organization’s 155 chapters.
Thirteen states have legalized marijuana for medical use, with Michigan being the most recent. And potent strains of the drug can now be purchased in vending machines throughout California with proof of medical need.
“These charters rarely lose,” Pierre said. “And if it washes in Jacksonville Beach, it will probably wash throughout the state.”
Banister and reform supporters argue that making marijuana possession the lowest law enforcement priority will reduce government spending, free up needed police officers and allow many teenagers to retain a clean record –– keeping them out of the criminal justice system.
About a year ago, Seattle agreed. It dropped marijuana possession to one of its lowest priority offenses. The city hasn’t seen any negative adverse effects since, said Detective Renee Witt, spokeswoman for the Seattle Police Department.
But agreement hasn’t quite been reached for Jacksonville Beach residents.
“It needs to be controlled,” said Freddie Wilson, 54. “This will just bring more unwanted wackos to the beaches.”
But Fred Brown said he’s all for the idea. The 58-year-old former California resident said he’s seen the drug have many positive effects on the west coast.
“It’s only illegal because of politics,” Brown said with a smile. “Alcohol is by far more dangerous, and it has no medicinal value.”
Others see the side of both arguments.
“I don’t really care either way,” said Wayne Upchurch, 38. “There are pros and cons to both.
But I do think it’s something people are going to do behind closed doors either way.”
A proposed Jacksonville Beach amendment is taking aim at the current marijuana laws, with hopes to make part of them vanish into a puff of smoke.
The nation’s largest marijuana advocacy group is pushing a plan to make possession of less than 20 grams a civil infraction instead of a criminal misdemeanor. If the group’s petition receives 1,442 signatures from registered Jacksonville Beach voters, a decriminalization amendment would be added to the ballot in the November 2010 general election.
If it passes, it would be the first of its kind in Northeast Florida, and organizers say they would push it in the other Beaches communities and Jacksonville. Nationally, similar amendments have passed in several other cities, including Denver, and a handful of states.
“It’s the will of the people and a product of our grandparents,” said Ford Banister, chapter president of the National Organization for the Reform of Marijuana Laws, who’s spearheading the proposition. “It’s a political hot potato, and nobody wants to touch it. We’re out to change that.”
The proposed amendment would call for a civil fine of $100 for the possession of 20 grams or less –– enough for about 10-15 joints. The marijuana would also be confiscated. State law calls for up to a year behind bars and $1,000 in fines. Jacksonville Beach police would have the option to enforce either law.
“The Beaches is small, conservative and generally Republican,” Banister said. “But we feel confident about it. Between church and the Navy, this will be a great test for the entire state.”
More than 14 million Americans smoke marijuana at least once a month, according to the National Institute on Drug Abuse.
Its use led to more than 900,000 arrests last year, according to NORML.
Jacksonville Beach police made 29 arrests for possession of marijuana under 20 grams since Jan. 1, records show.
While misdemeanor possession can lead to a one year sentence and a $1,000 fine, most first-time offenders typically settle with pleas, according to the State Attorney’s Office.
The biggest concern associated with the drug is the violence that stems from its sale and distribution, said Dan McCarthy, chief assistant to State Attorney Angela Corey.
“We don’t spend a whole lot of time dealing with marijuana possession cases,” he said. “But drugs are certainly a major part of criminal conduct. The problem in this county is violent crime, and drugs can often lead to that.”
But dropping marijuana possession to a civil infraction is becoming a growing national trend.
More than a handful of cities have decriminalized marijuana this year through similar local charters, said Allen St. Pierre, the group’s executive national director who oversee the organization’s 155 chapters.
Thirteen states have legalized marijuana for medical use, with Michigan being the most recent. And potent strains of the drug can now be purchased in vending machines throughout California with proof of medical need.
“These charters rarely lose,” Pierre said. “And if it washes in Jacksonville Beach, it will probably wash throughout the state.”
Banister and reform supporters argue that making marijuana possession the lowest law enforcement priority will reduce government spending, free up needed police officers and allow many teenagers to retain a clean record –– keeping them out of the criminal justice system.
About a year ago, Seattle agreed. It dropped marijuana possession to one of its lowest priority offenses. The city hasn’t seen any negative adverse effects since, said Detective Renee Witt, spokeswoman for the Seattle Police Department.
But agreement hasn’t quite been reached for Jacksonville Beach residents.
“It needs to be controlled,” said Freddie Wilson, 54. “This will just bring more unwanted wackos to the beaches.”
But Fred Brown said he’s all for the idea. The 58-year-old former California resident said he’s seen the drug have many positive effects on the west coast.
“It’s only illegal because of politics,” Brown said with a smile. “Alcohol is by far more dangerous, and it has no medicinal value.”
Others see the side of both arguments.
“I don’t really care either way,” said Wayne Upchurch, 38. “There are pros and cons to both.
But I do think it’s something people are going to do behind closed doors either way.”
Wednesday, July 22, 2009
Times Union Reports: Judge Brian Davis up for Federal Judgeship and Harry Shorstein Interviews for U.S. Attorney Post for the Middle District
Circuit Judge Brian Davis, based in Nassau County, was among three applicants picked Tuesday night for an upcoming federal judicial vacancy.
Davis was chosen from 14 applicants interviewed by the Federal Judicial Nominating Commission, along with U.S. Magistrate Elizabeth Jenkins of Tampa and Orlando lawyer Roy Dalton.
Their names now go to Florida’s two U.S. senators, who will recommend to President Obama, who will make the lifetime appointment.
The vacancy will be created when U.S. District Judge Henry Adams of Jacksonville retires next year.
The Middle District stretches from Jacksonville to Fort Myers and includes courthouses in Tampa and Orlando.
Judge Brian Davis would be sorely missed by state court practioners but an excellent choice as a Federal Judge.
Today the commission is interviewing applicants for U.S. attorney for the district, including former State Attorney Harry Shorstein of Jacksonville.
Davis was chosen from 14 applicants interviewed by the Federal Judicial Nominating Commission, along with U.S. Magistrate Elizabeth Jenkins of Tampa and Orlando lawyer Roy Dalton.
Their names now go to Florida’s two U.S. senators, who will recommend to President Obama, who will make the lifetime appointment.
The vacancy will be created when U.S. District Judge Henry Adams of Jacksonville retires next year.
The Middle District stretches from Jacksonville to Fort Myers and includes courthouses in Tampa and Orlando.
Judge Brian Davis would be sorely missed by state court practioners but an excellent choice as a Federal Judge.
Today the commission is interviewing applicants for U.S. attorney for the district, including former State Attorney Harry Shorstein of Jacksonville.
Tuesday, July 21, 2009
Jacksonville police chase ends in accident - So Why wasn't the driver arrested?
An article in today's 7-21-09 Florida Times Union states that a Jacksonville man was hospitalized in serious condition this morning after smashing his pickup truck into a tree while being chased by Jacksonville police, the Florida Highway Patrol said.
Leonard Lukaj, 26, was injured in the 2:40 a.m. wreck on Beach Boulevard at Florida 9A. An accident report said that Lukaj was speeding from police westbound on Beach Boulevard when he lost control of his truck at the 9A entrance ramp. The vehicle hit a curb, crossed several lanes of traffic and hit a tree head-on.
Lukaj was taken to Shands Jacksonville hospital. A 21-year-old passenger, Arber Novaku, was not injured.
The report said the accident was alcohol-related, but gave no further information. Charges are pending, the report said.
Brett Hastings Commentary - Why wasn't the Driver Arrested?
Whenever there is serious bodily injury involved in a DUI accident the officers will draw blood (irrespective of the person's consent) and send the blood off to the Florida Department of Law Enforcement ("FDLE") for a toxicological examination. If the blood results come back above an .08 they will then seek an arrest warrant> if you find yourself in this unfortunate situation please call an experienced DUI lawyer like Brett hastings or one of the other DUI attorneys in our area.
Leonard Lukaj, 26, was injured in the 2:40 a.m. wreck on Beach Boulevard at Florida 9A. An accident report said that Lukaj was speeding from police westbound on Beach Boulevard when he lost control of his truck at the 9A entrance ramp. The vehicle hit a curb, crossed several lanes of traffic and hit a tree head-on.
Lukaj was taken to Shands Jacksonville hospital. A 21-year-old passenger, Arber Novaku, was not injured.
The report said the accident was alcohol-related, but gave no further information. Charges are pending, the report said.
Brett Hastings Commentary - Why wasn't the Driver Arrested?
Whenever there is serious bodily injury involved in a DUI accident the officers will draw blood (irrespective of the person's consent) and send the blood off to the Florida Department of Law Enforcement ("FDLE") for a toxicological examination. If the blood results come back above an .08 they will then seek an arrest warrant> if you find yourself in this unfortunate situation please call an experienced DUI lawyer like Brett hastings or one of the other DUI attorneys in our area.
Thursday, March 5, 2009
Jacksonville Prosecutors try to reduce woman's extraordinary sentence
A Jacksonville woman who recently pled to 8 separate worthless check charges was sentenced to 8 consecutive sentences for a total of 24 years. The defendant, and her attorney, expected a concurrent sentences. An article in the Florida Times Union today discusses the case in some detail and to Angela Corey’s credit she states “we may have made a mistake,” Corey told the Times Union.
There is an increasing number of worthless check cases that are being prosecuted primarily as a result of the economy and it will be interesting to watch the trend locally as to how aggressively the State Attorney’s Office prosecutes these matters.
With an economy that is failing, it is hard to believe that the State should be become more aggressive in these matters as there are more and more people who have found themselves in tough economic times and focusing on non violent economic crimes like these may not be the State’s best use of its own increasingly limited resources.
As for the sentence, 24 years for what amounts to little more than a series of 3rd degree felonies is nothing short of outrageous. This case goes to show why I am always very meticulous about the specific language and all the details that are included in a negotiated plea and how just a small change in terminology can result in a drastically different sentence. I will continue to follow this case on this Blog because it is of interest to everyone in the North Florida defense community.
The link to the Florida Times Union story is here: http://www.jacksonville.com/news/metro/crime/2009-03-04/story/prosecutors_try_to_reduce_womans_extraordinary_sentence
There is an increasing number of worthless check cases that are being prosecuted primarily as a result of the economy and it will be interesting to watch the trend locally as to how aggressively the State Attorney’s Office prosecutes these matters.
With an economy that is failing, it is hard to believe that the State should be become more aggressive in these matters as there are more and more people who have found themselves in tough economic times and focusing on non violent economic crimes like these may not be the State’s best use of its own increasingly limited resources.
As for the sentence, 24 years for what amounts to little more than a series of 3rd degree felonies is nothing short of outrageous. This case goes to show why I am always very meticulous about the specific language and all the details that are included in a negotiated plea and how just a small change in terminology can result in a drastically different sentence. I will continue to follow this case on this Blog because it is of interest to everyone in the North Florida defense community.
The link to the Florida Times Union story is here: http://www.jacksonville.com/news/metro/crime/2009-03-04/story/prosecutors_try_to_reduce_womans_extraordinary_sentence
Tuesday, February 24, 2009
Judge to Release Collier Tape over the States and Defense Attorneys Objection
Check out the very interesting article that appeared below. It isn't very often where you see both the State Attorney's Office and the defense attorneys collectively opposing the release of evidence. But that is exactly the case below. In this case the police officers, prosecutor and the defense attorney all request that the tapes not be released. However, because the court reviewed the tape as part of the case, lawyers for the Times Union have correctly argued that the tape is now in the "sunshine" and should be released under Florida's public records law.
From the Times Union: Circuit Judge Mallory Cooper heard arguments Monday that she should release to the Times-Union a transcript of a conversation a friend of Tyrone Hartsfield secretly recorded. Cooper read the incomplete transcript before denying bail Friday to Hartsfield, who has been charged with the Labor Day shooting that left Jacksonville Jaguar Richard Collier paralyzed below the waist. Collier also had a leg amputated after he was shot about a dozen times. Attorney Timothy J. Conner, representing the Times-Union, said the transcript was used in the judge's ruling and so is now part of the public court record. As a result, both the transcript and the original tape should be available, he argued. Assistant State Attorney Bernie de la Rionda and defense attorney Ann Finnell both opposed the release of the conversation, recorded by Hartsfield's friend, Stephfan Wilson, at the urging of police. Cooper said she will rule Thursday on Conner's motion.
Charlie Patton
From the Times Union: Circuit Judge Mallory Cooper heard arguments Monday that she should release to the Times-Union a transcript of a conversation a friend of Tyrone Hartsfield secretly recorded. Cooper read the incomplete transcript before denying bail Friday to Hartsfield, who has been charged with the Labor Day shooting that left Jacksonville Jaguar Richard Collier paralyzed below the waist. Collier also had a leg amputated after he was shot about a dozen times. Attorney Timothy J. Conner, representing the Times-Union, said the transcript was used in the judge's ruling and so is now part of the public court record. As a result, both the transcript and the original tape should be available, he argued. Assistant State Attorney Bernie de la Rionda and defense attorney Ann Finnell both opposed the release of the conversation, recorded by Hartsfield's friend, Stephfan Wilson, at the urging of police. Cooper said she will rule Thursday on Conner's motion.
Charlie Patton
Tuesday, February 17, 2009
Attorney General's Cyber Crime Unit Remains Aggressive in Jacksonville
A Ponte Vedra Beach High School assistant football coach and special-needs aide is charged with sexually soliciting a 16-year-old boy through an e-mail and traveling to meet him.
William G. Turner, 46, was arrested Monday by law enforcement officers with the Attorney General’s CyberCrime Unit with assistance from the FBI and Jacksonville and St. Johns County sheriff’s offices.
Turner, of the 5500 block of Resa Terrace in the Ortega Farms area of Jacksonville, works as a paraprofessional with special-needs students in small classroom settings and is the school’s assistant football coach. He is listed on the high school’s Web site as Will Turner, an Exceptional Student Education specialist.
He is accused of transmitting pornography to the teen in Jacksonville and soliciting to meet him for sex. A CyberCrime investigator located the boy and his parents and was given permission to take over the his Yahoo account.
The investigator was soon contacted by a man who offered to meet with the teen for a sexual encounter. Turner instead met police and was arrested in Jacksonville, the Attorney General’s Office said.
Turner is charged with three felonies — solicitation of a minor via computer, transmission of harmful materials to a minor and traveling to meet a minor to engage in a sexual activity. His bail has not been set.
Turner passed a background check before being employed by the St. Johns County School Board four years ago, said spokeswoman Margie Davidson, and his personnel file shows no prior arrests or disciplinary reports.
“The parents of his students love him,” Davidson said.
Because of his arrest, Turner is suspended with pay pending action by the School Board.
Others who may have been approached by Turner can contact the CyberCrime Unit’s victim advocate at (904) 348-2720.
See Link http://jacksonville.com/news/metro/crime/2009-02-16/story/ponte_vedra_high_staffer_in_trouble_in_sex_solicitation_with_boy
William G. Turner, 46, was arrested Monday by law enforcement officers with the Attorney General’s CyberCrime Unit with assistance from the FBI and Jacksonville and St. Johns County sheriff’s offices.
Turner, of the 5500 block of Resa Terrace in the Ortega Farms area of Jacksonville, works as a paraprofessional with special-needs students in small classroom settings and is the school’s assistant football coach. He is listed on the high school’s Web site as Will Turner, an Exceptional Student Education specialist.
He is accused of transmitting pornography to the teen in Jacksonville and soliciting to meet him for sex. A CyberCrime investigator located the boy and his parents and was given permission to take over the his Yahoo account.
The investigator was soon contacted by a man who offered to meet with the teen for a sexual encounter. Turner instead met police and was arrested in Jacksonville, the Attorney General’s Office said.
Turner is charged with three felonies — solicitation of a minor via computer, transmission of harmful materials to a minor and traveling to meet a minor to engage in a sexual activity. His bail has not been set.
Turner passed a background check before being employed by the St. Johns County School Board four years ago, said spokeswoman Margie Davidson, and his personnel file shows no prior arrests or disciplinary reports.
“The parents of his students love him,” Davidson said.
Because of his arrest, Turner is suspended with pay pending action by the School Board.
Others who may have been approached by Turner can contact the CyberCrime Unit’s victim advocate at (904) 348-2720.
See Link http://jacksonville.com/news/metro/crime/2009-02-16/story/ponte_vedra_high_staffer_in_trouble_in_sex_solicitation_with_boy
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