wiretaps - American Bar Association

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IN THE SUPREME COURT OF FLORIDA Case No. SC13-1248

RICHARD R. McDADE, Petitioner,

v. STATE OF FLORIDA, Respondent.

On Petition for Review of a Decision of the Second District Court of Appeal of Florida Passing on a Question Certified to be of Great Public Importance

Amicus Curiae Brief of the Florida Press Association and the Florida Society of News Editors in Support of the State of Florida

Thomas R. Julin & Patricia Acosta Florida Bar Nos. 325376 & 614599 Hunton & Williams LLP Attorneys for the Florida Press Association and the Florida First Amendment Foundation 1111 Brickell Avenue- Suite 2500 Miami, FL 33131 305-810-2516 fax 1601 tjulin or [email protected]

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TABLE OF CONTENTS TABLE OF CITATIONS ......................................................................................... ii INTRODUCTION ..................................................................................................... 1 SUMMARY OF ARGUMENT ................................................................................. 3 ARGUMENT AND STANDARD OF REVIEW ...................................................... 4 I.

The Courts Below Properly Applied Chapter 934 to the Facts ....................... 4

II. Chapter 934 Would be Unconstitutional as Applied if it were Interpreted as Prohibiting the Interception at Issue ....................... 16 CONCLUSION ........................................................................................................ 20 CERTIFICATE OF SERVICE ............................................................................... vii CERTIFICATE OF COMPLIANCE ..................................................................... viii

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TABLE OF CITATIONS Page(s) Cases

American Civil Liberties Union ofIllinois v. Alvarez, 679 F.3d 583 (7th Cir.), cert. denied, 133 S. Ct. 651 (2012) ....................... 18, 19 Bartnicki v. Vopper, 532 us 514 (2001) .............................................................................................. 17 Berger v. New York, 388 u.s. 41 (1967) .............................................................................................. 14 Brugmann v. State, 117 So. 3d 39, 40-62 (Fla. 3d DCA 2013) (en bane) ..................................passim Brugmann v. State, No. 3D09-2540, 2012 WL 1484102 (Fla. 3d DCA Apr. 27, 2012), vacated, 117 So. 3d 39 (Fla. 3d DCA 2013) (en bane) ........................................ 7 Cohen Bros., LLC v. ME Corp., S.A., 872 So. 2d 321 (Fla. 3d DCA 2004) ..................................................................... 8 Department ofAgriculture & Consumer Services v. Edwards, 654 So. 2d 628 (Fla. 1st DCA 1995) .................................................................... 8 Department ofEducation v. Lewis, 416 So. 2d 455 (Fla. 1982) ................................................................................... 4 Jatar v. Lamaletto, 758 So. 2d 1167 (Fla. 3d DCA 2000) ................................................................... 7 Jenkins v. State, 385 So. 2d 1356 (1980) ......................................................................................... 9 Katz v. United States, 389 U.S. 347 (1967) ........................................................................................ 1, 14 Masson v. New Yorker Magazine, Inc., 501 u.s. 496 (1991) .............................................................................................. 3

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Migut v. Flynn, 131 Fed. Appx. 262 (11th Cir. 2005) .................................................................... 8 Morningstar v. State, 428 So. 2d 220 (Fla. 1982) ....................................................................... 3, 5, 6, 7 Olmstead v. United States, 277 u.s. 438 (1928) .............................................................................................. 1 People v. Herrington, 645 N.E.2d 957 (Ill. 1994) .................................................................................. 18 Shevin v. Sunbeam Television Corp., 351 So. 2d 723 (Fla. 1977) ....................................................................... 8, 17, 19 Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) ........................................................................................ 17 State v. Hume, 512 So. 2d 185 (Fla. 1987) ........................................................................... 3, 5, 6 State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985) ....................................................................... .passim State v. Jefferson, 758 So. 2d 661 (Fla. 2000) ................................................................................... 4 State v. Smith, 641 So. 2d 849 (Fla. 1994) ......................................................................... 3, 6, 10 State v. Tsavaris, 394 So. 2d 418 (Fla. 1981) ................................................................................. 20 State v. Walls, 356 So. 2d 294 (Fla. 1978) ................................................................................. 20 Stevenson v. State, 667 So. 2d 410 (Fla. 1st DCA 1996) .................................................................... 8 United States v. Stevens, 130 S. Ct. 1577 (2010) .......................................................................................... 8

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Constitutional Provisions, Statutes & Rules U.S. Const. amend. I ................................................................................ 7, 17, 19, 20 U.S. Const. amend. IV ......................................................................................passim U.S. Const. amend. V ............................................................................................... 11 18 U.S.C. § 251 0-22 ................................................................................................... 1 42 u.s.c. § 251 0-20 ................................................................................................... 1 47 u.s.c. §605 ........................................................................................................... 1 Communications Act of 1934, Pub. L. No. 416 ........................................................ 1 Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 197 ................................................................................ 1 Ala. Code§ 13A-11-30 .............................................................................................. 2 Alaska Stat. §§ 42.20.300 to 42.20.320 ..................................................................... 2 Ariz. Rev. Stat. Ann. §13-3005 .................................................................................. 2 Ark. Code§ 5-60-120 ................................................................................................ 2 ch. 652,48 Stat. 1064 (73rd Cong. 1934) .................................................................. 1 Colo. Rev. Stat. §§ 18-9-303, 18-9-304 ..................................................................... 2 D.C. Code§ 23-542 ....... ~ ........................................................................................... 2 Del. Code tit. 11 § 2402 ............................................................................................. 2 Fla. Const. art. I, sec. 12 ............................................................................................ 5 Fla. Const. art. I, sec. 25 ............................................................................................ 9 Fla. Stat. § 934.02 ...................................................................................................... 5 Fla. Stat. § 934.03(2)( d) (2008) ............................................................................... 15 Fla. Stat. ch. 934 ................................................................................................passim

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Ch. 69-17, Laws of Fla.............................................................................................. 1 Ch. 74-249 § 2, Laws of Fla.................................................................................... 15 Fla. R. Jud. Admin. 2.420 .......................................................................................... 9 Ga. Code§ 16-11-66 .................................................................................................. 2 Hawaii Rev. Stat.§§ 711-1111, 803-42 ..................................................................... 2 Idaho Code § 18-6702 ................................................................................................ 2 Ill. Comp. Stat. Ann. ch. 720 §§ 5/14-2,5/14-3 .......................................... 17, 18, 19 Ind. Code Ann.§ 35-33.5-5-5 ...................................................·................................. 2 Iowa Code Ann. § 808B.2 .......................................................................................... 2 Kan. Stat. Ann. § 21-6101 ......................................................................................... 2

Ky. Rev. Stat. § 526.010 ............................................................................................ 2 La. Rev. Stat. Ann. § 15: 1303 .................................................................................... 2 Me. Rev. Stat. Ann. tit. 15 § 709 ............................................................................... 2 Minn. Stat. Ann. § 626A.02 ....................................................................................... 2 Miss. Code Ann. § 41-29-501-537 ............................................................................ 2 Mo. Ann. Stat. § 542.402 ........................................................................................... 2 N.C. Gen. Stat. § 15A-287 ......................................................................................... 2 N.D. Cent. Code§§ 12.1-15-02 ................................................................................. 2 N.J. Stat. Ann. §§ 2A:156A-4 .................................................................................... 2 N.M. Stat. Ann.§§ 30-12-1 ....................................................................................... 2 N.Y. Penal Law§ 250.00 ........................................................................................... 2 Neb. Rev. Stat. § 86-290 ............................................................................................ 2 Nev. Rev. Stat. §§ 200.620, 200.650 ......................................................................... 2 v HUNTON & WILLIAMS

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Ohio Rev. Code§ 2933.52 ......................................................................................... 2 Okla. Stat. Ann. tit. 13 § 176.4 .................................................................................. 2 Ore. Rev. Stat.§ 165.540 ........................................................................................... 2 R.I. Gen. Laws § 11-35-21 ......................................................................................... 2 S.C. Code Ann. § 17-30-30 ........................................................................................ 2 S.D. Comp. Laws §§ 23A-35A-20 ............................................................................ 2 Tenn. Code Ann.§ 39-13-601 ................................................................................... 2 Tex. Penal Code § 16.02 ............................................................................................ 2 Utah Code Ann. § 77-23a-4 ....................................................................................... 2 Va. Code§ 19.2-62 .................................................................................................... 2 W.Va. Code§ 62-1D-3 ............................................................................................. 2 Wis. Stat. Ann. § 968.31 ............................................................................................ 2 Wyo. Stat. § 7-3-702 ...................................................................... ~ ........................... 2 Other Authorities Clarence Jones, They're Gonna Murder You- War Stories From My Life at the News Front (Winning News Media Inc. 2012) ............................................ 15 Lucy Morgan, "Forgotten Tape Law Takes Down a Journalist," St. Petersburg Times 4B col. 1 (Aug. 6, 2005) ........................................................ 14

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INTRODUCTION Chapter 934, Florida Statutes, is of special concern to the press because reporters commonly use electronic devices to record their conversations with their sources. They make the recordings in order to protect both themselves and the source from the dangers of inaccuracy. The recording reduces the risk that a reporter will make a mistake in reporting the contents of the communication and the risk that the source later will be able to deny having made the statement and impugn or sue the reporter. The making of recordings is especially important where the recording shows that the person recorded is in the act of committing a crime or is admitting the commission of a crime. The recording ensures that the person making the admission will be unable to refute the admission easily. Both federal law, 18 U.S.C. § 2510-22 and 47 U.S.C. § 605, 1 and the law of

1

The U.S. Supreme Court ruled in Olmstead v. United States, 277 U.S. 438 (1928), that wiretapping - interception of electronic communications by a person or entity not a party to the communication - does not violate the Fourth Amendment search and seizure prohibition. Congress reacted with the Communications Act of 1934, Pub. L. No. 416, Act of June 19, 1934, ch. 652, 48 Stat. 1064 (73rd Cong. 1934) codified as 47 U.S.C. § 605, which prohibited thirdparty wiretapping. The statute did not, however, prohibit a party to a wire communication from recording it. Then, in Katz v. United States, 389 U.S. 347 (1967), the Court effectively overruled Olmstead, holding the Fourth Amendment prohibits police from using an eavesdropping device without a warrant in a public payphone. This precipitated a scramble to enact state and federal laws establishing procedures to issue warrants for such eavesdropping. See, e.g., Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 197, codified in part at 42 U.S.C. § 2510-20; Ch. 69-17, Laws of Florida. Neither the federal nor state

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40 states and the District of Columbia, 2 allow reporters to make and use these recordings without the consent of the source. The federal law and the laws of these other states do prohibit persons who are not a party to a conversation from intercepting it electronically, but they pose no impediment to any party recording and disclosing the communication using electronic devices just as they might use a pad and paper or human memory alone. Florida law, unlike federal and most other state laws, directly interferes with a reporter's effort to create a clear and irrefutable record of a conversation with a laws prohibited a party to a communication from electronically recording it without the other party's consent. Today, federal law still does not prohibit any party to a communication from electronically recording or disclosing it. 2

(1) Ala. Code § 13A-11-30; (2) Alaska Stat. §§ 42.20.300 to 42.20.320; (3) Ariz. Rev. Stat. Ann. § 13-3005; (4) Ark. Code § 5-60-120; (5) Colo. Rev. Stat. §§ 18-9-303, 18-9-304; (6) Del. Code tit. 11 § 2402; (7) D.C. Code § 23-542; (8) Ga. Code§ 16-11-66; (9) Hawaii Rev. Stat. §§ 711-1111, 803-42; (10) Idaho Code § 18-6702; (11) Ind. Code Ann. § 35-33.5-5-5; (12) Iowa Code Ann. § 808B.2; (13) Kan. Stat. Ann. § 21-6101; (14) Ky. Rev. Stat. § 526.010; (15) La. Rev. Stat. Ann. § 15:1303; (16) Me. Rev. Stat. Ann. tit. 15 § 709; (17) Md. Cts. & Jud. Pro. Code Ann.§ 10-402; (18) Minn. Stat. Ann.§ 626A.02; (19) Miss. Code Ann.§ 4129-501-537; (20) Mo. Ann. Stat. § 542.402; (21) Neb. Rev. Stat. § 86-290; (22) N.J. Stat. Ann. §§ 2A:156A-4; (23) N.M. Stat. Ann. §§ 30-12-1; (24) N.Y. Penal Law § 250.00; (25) Nev. Rev. Stat. §§ 200.620, 200.650; (26) N.C. Gen. Stat. § 15A-287; (27) N.D. Cent. Code §§ 12.1-15-02; (28) Ohio Rev. Code § 2933.52; (29) Okla. Stat. Ann. tit. 13 § 176.4; (30) Ore. Rev. Stat. § 165.540 (one party consent for wiretapping and all parties must consent for other forms of electronic eavesdropping); (31) R.I. Gen. Laws § 11-35-21; (32) S.C. Code Ann. § 17-30-30; (33) S.D. Comp. Laws §§ 23A-35A-20; (34) Tenn. Code Ann. § 39-13-601; (35) Tex. Penal Code§ 16.02; (36) Utah Code Ann. § 77-23a-4; (37) Va. Code§ 19.262; (38) Vermont: no statute; (39) W.Va. Code§ 62-1D-3; (40) Wis. Stat. Ann. § 968.31; (41) Wyo. Stat. § 7-3-702. .

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source by banning electronic interception without consent and this directly interferes on occasion with their ability to report news of public concern. Some sources refuse to speak with reporters if they are made aware that their conversations with reporters are being recorded. Some reporters will not report newsworthy statements made to them by sources, but not electronically recorded, for fear that the source will deny having made the statement and impugn the reporter's accuracy, integrity and reputation by denying having made the statement or, worse, sue the reporter for defamation by misattribution. 3 The amici curiae, organizations that represent the press, therefore urge the Court to interpret chapter 934 so that it does not operate to prohibit recording of oral communications without consent in circumstances such as those here. The victim had an important reason to record the defendant without his consent and to disclose the recording to authorities, just as reporters often have important reasons to record sources without their consent and to report what they said. SUMMARY OF ARGUMENT Point I. This Court's holding in State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985), Morningstar v. State, 428 So. 2d 220 (Fla. 1982), State v. Hume, 512 So. 2d 185 (Fla. 1987), and State v. Smith, 641 So. 2d 849 (Fla. 1994), lay the 3

See, e.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991)

(misattribution of quotation to public figure can show publication of a false and defamatory statement). 3 HUNTON & WILLIAMS

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foundation for examination of any claim that an intercepted communication must be suppressed pursuant to chapter 934, Florida Statutes. They do not mandate a blinkered focus on location, but rather direct courts to evaluate an array of factors to determine whether a claimed expectation of privacy is justified. The trial judge in this case did not abuse his discretion in determining on the basis of the evidence before him that Richard McDade lacked a justifiable expectation that his voice was not being recorded. The conviction should be affirmed on this basis. Point II.

Although the constitutionality of Florida's chapter 934 is not

directly at issue in this case, 4 a familiar rule of statutory construction is that "[w]henever possible, statutes should be construed in such a manner so as to avoid an unconstitutional result." State v. Jefferson, 758 So. 2d 661, 664 (Fla. 2000). A recent decision invalidating Illinois' all-party consent statute shows chapter 934 would be unconstitutional if applied as McDade requests. ARGUMENT AND STANDARD OF REVIEW I.

The Courts Bellow Properly Applied Chapter 934 to the Facts The defendant acknowledges that the exclusionary rule of the Fourth 4

McDade argues chapter 934 prohibits the interception and use of the recording at issue. Initial Brief at 11-40. The Attorney General lacks standing to argue that the statute is unconstitutional, see Dep 't of Educ. v. Lewis, 416 So. 2d 455, 458 (Fla. 1982), so she contends only that it was properly interpreted and applied below. Answer Brief at 21-36. 4 HUNTON & WILLIAMS LLP

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Amendment does not apply to the actions of private actors such as the recording that is at issue in this case. Initial Brief at 19. Consequently, he sought exclusion below on the basis of section 934.02, Florida Statutes, as it has been interpreted in State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985). Initial Brief at 19. He argues here that in Inciarrano this Court "applied the Fourth Amendment standard to nonstate agents" and then contends that the Fourth Amendment's exclusionary rule requires suppression because the interception took place in the defendant's bedroom. Initial Brief at 20-22 & 29-31. Assuming that Fourth Amendment analysis should be used in interpreting chapter 934, this argument for reversal must be rejected because this Court has been clear that when one person is knowingly speaking to another, he or she cannot reasonably expect under either the Fourth Amendment of the U.S. Constitution or article I, section 12 of the Florida Constitution, that the communication is not being recorded or that the recording would not be disclosed. The Court first addressed this issue in Morningstar v. State, 428 So. 2d 220 (Fla. 1982), holding that an individual's Fourth Amendment rights are not violated by the nonconsensual recording of one's voice in one's private office by one using a "body bug" on a person engaged in a conversation with the person whose voice is recorded. The Court then went one step further in State v. Hume, 512 So. 2d 185 (Fla. 1987), holding that one's Fourth Amendment rights had not been violated even by the

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recording of one's voice in one's own home through the use of a "body bug" on a person engaged in a face-to-face conversation with the person whose voice was being recorded without knowledge or consent. Neither Morningstar nor Hume dealt specifically with chapter 934, but in State v. Smith, 641 So. 2d 849 (Fla. 1994), the Court crossed the bridge from the Fourth Amendment to chapter 934 holding that recording without consent of a person in a police car did not violate chapter 934 because the recording did not violate the Fourth Amendment. More recently, three judges made a similar point in Brugmann v. State, 117 So. 3d 39, 40-62 (Fla. 3d DCA 2013) (en bane) (Rothenberg, J., joined by Salter & Fernandez, JJ., dissenting).

The Brugmann case involved a recording that

allegedly had been made of a lawyer in his office advising his client to flee the country to avoid prosecution. Jd. at 40-41. The client, upon the advice of that same lawyer pled guilty to various crimes, but then later moved to set aside the plea on the ground that the lawyer had a conflict of interest in advising the client to plea because acceptance of the plea would reduce the risk that the lawyer's own wrongdoing would be detected.

Jd.

In support of this contention, the client

asserted that recordings had been made of the lawyer and the lawyer's assisting psychologist without their knowledge or consent.

Jd. at 44.

The trial court

disallowed use of the recordings to challenge the plea, id., and also sealed them to prevent public review, id. at 45-46. Brugmann, a newspaper publisher, challenged

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the sealing on grounds that if they in fact recorded the lawyer and psychologist advising the defendant to flee, chapter 934 would not prohibit their disclosure. Id at 45. He relied on this Court's ruling in State v. Inciarrano, 413 So. 2d 1272 (Fla. 1985), and alternatively argued chapter 934 would violate the First and Fourteenth Amendments if chapter 934 were interpreted as prohibiting the recording and disclosure of oral communications showing or admitting to the commission of a crime. A panel of the Third District distinguished Inciarrano as involving the recording of one speaking in another's office rather than one's own office and held the First Amendment does not prohibit the state from banning the recording of oral communications without consent, even if the recording would show criminal activity. See Brugmann v. State, No. 3D09-2540, 2012 WL 1484102 at *10 & *13 (Fla. 3d DCA Apr. 27, 2012), vacated, 117 So. 3d 39 (Fla. 3d DCA 2013) (en bane). A five-member majority of the en bane Third District summarily vacated this panel decision, but still denied the petitioner any relief without explaining why. Brugmann, 117 So. 3d at 40. Three judges wrote a lengthy and passionate dissent arguing, among other things, that reversal was required because this Court had held in Inciarrano that interception of communications showing unlawful activity are not prohibited by chapter 9345 and in Morningstar that one has no 5

The Third District had applied Inciarrano and reached the same result in Jatar v. Lamaletto, 758 So. 2d 1167 (Fla. 3d DCA 2000) (interception or oral communication in office of the interceptor). 7 HUNTON & WILLIAMS LLP

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reasonable expectation under the Fourth Amendment that one's voice is not being recorded by a person to whom one is speaking and pointing out that this interpretation of the law had been used to decide chapter 934 issues in numerous cases. 6 Brugmann, 117 So. 3d at 49-51. The dissenters synthesized this Court's Fourth Amendment and chapter 934 cases and the variety of decisions applying them to conclude that when chapter 934 is invoked to suppress or seal intercepted communications, "The trial court [is] ... required to consider . . . the location where the communication took place; the manner in which it was made; the nature, contents, and purpose of the communication; the intent of the speaker; and the conduct of the parties." Id at 51 (emphasis in original). This is a sound approach which the amici urge the Court to follow here. 7

6

The dissenters cited and discussed Cohen Bros., LLC v. ME Corp., S.A., 872 So. 2d 321, 324-25 (Fla. 3d DCA 2004) ("[s]ociety does not recognize an absolute right of privacy in a party's office"); Dep 't of Agric. & Consumer Servs. v. Edwards, 654 So. 2d 628 (Fla. 1st DCA 1995) (employee's secret recording of supervisors); Migut v. Flynn, 131 Fed. Appx. 262 (11th Cir. 2005) (motorist's secret recording of police officer during stop); Stevenson v. State, 667 So. 2d 410 (Fla. 1st DCA 1996) (warrantless police interception of communications using "bionic" ears). 7

Amici contend that a sounder approach would be to hold chapter 934 facially overbroad because "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." United States v. Stevens, 130 S. Ct. 1577 (20 10) (internal quotation marks omitted). Thirty-six years ago this Court rejected a facial challenge in Shevin v. Sunbeam Television Corp., 351 So. 2d 723 (Fla. 1977), but the many problems the 8 HUNTON & WILLIAMS LLP

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When the Brugmann dissenters applied this standard, they concluded that the trial judge erred in failing to evaluate the contents of the tape recordings at issue, /d. at 52 & 53-54. They also asserted that the majority's failure to reverse "is in

conflict with article I, section 24 of the Florida Constitution, Rule 2.420 of Florida Rules of Judicial Administration, and Florida case law" and "the sealing of these court records implicates [the] constitutional right to due process and the public's right of access to the court." Brugmann, 117 So. 3d at 62 (Rothenberg, J., dissenting, with Salter & Fernandez, JJ., concurring). They wrote that "the Florida Supreme Court has jurisdiction to review this case on conflict jurisdiction and as a case of exceptional importance." /d. But because dissenting opinions may not provide a basis for this Court to assert jurisdiction, see Jenkins v. State, 3 85 So. 2d 1356, 1357 (1980), Brugmann had no basis for seeking review here and he did not do so. 8 Because the Third District majority did not explain its actions, Judge Rothenberg's dissent stands as an unrebutted and thorough examination of chapter 934 jurisprudence.

law has caused since and the paucity of evidence that it has much, if any, legitimate sweep, warrants reconsideration of that issue in an appropriate case. 8

Brugmann did ask the Third District to issue a written opinion and to certify that case, pointing out that the Second District had certified McDade on Friday, June 7, 2013, just five days before the Third District issued its en bane decision on Wednesday, June 12, 2013, but this motion also was summarily denied. 9 HUNTON & WILLIAMS

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When the Brugmann approach is applied here, it easily allows affirmance because the

communi~ation

did reflect that McDade had engaged in unlawful

activity and because he was speaking directly to the person who was making the recording at issue. Under these circumstances, he had no justifiable expectation of either privacy or that his voice was not being recorded. McDade nevertheless attacks the decision of the Second District as inconsistent with Fourth Amendment jurisprudence, Initial Brief at 23-24, and argues that chapter 934 does not, by its language, allow an exception to its exclusionary rule for "heinous crimes," Initial Brief at 24-29, nor is it possible for courts to apply such an exception because a defendant in McDade's circumstances is presumed innocent, unlike the defendant in Inciarrano, where undisputed facts showed that he was trespassing when he was recorded allegedly committing murder. Initial Brief at 29-41. These arguments are flawed principally because they fail to take into consideration this Court's rulings in cases such as Morningstar, Hume and Smith or the lower court decisions applying them that were analyzed by the Brugmann dissenters. Two members of the Second District panel below considered and rejected McDade's arguments, but not because they ran afoul of Morningstar, Hume and Smith. Instead, they grounded their decision solely on a reading of Inciarrano and

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then expressed concern that lnciarrano may not have been decided correctly. Judge Khouzam, for the majority, concluded that Inciarrano was indistinguishable because "this case [also] involves recordings made by a victim of the very criminal acts by which she was victimized." Id at 470.

Judge Altenbernd concurred

specially to express his view that this Court's decision in Inciarrano may have been wrong. His concurrence recited a history of the evolution of chapter 934 from the time that it required only one party to consent to a recording, to its amendment in 1974 to require the consent of all parties, to its interpretation in Inciarrano in 1985. In so doing, he expressed concern about how Inciarrano impacts Fifth Amendment rights; whether the supposed "bad facts" of lnciarrano (the victim recorded the defendant committing a murder) had induced this Court to misinterpret chapter 934; whether Inciarrano had weakened a legislative policy to protect privacy; whether this Court in lnciarrano erred in reliance on Fourth Amendment precedents, id. at *7, and how technological changes since 1974 should be taken into account. Id at *8. With respect to the latter concern he also noted that privacy expectations have changed dramatically because we now "live in a society where practically every teenager and even many senior citizens carry small, concealed recording devices on their persons." !d. He noted: The modern smartphone can record video as well as audio and transfer it immediately to the Internet. It is likely that the "all parties" requirement in chapter 934 now results in hundreds of illegal recordings and perhaps thousands of illegal disclosures on the Internet II HUNTON & WILLIAMS

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in Florida every day. !d. at *8. His opinion may be read as questioning whether chapter 934 should have

been interpreted as allowing no exceptions based on societal expectations of privacy so that this would force the Legislature to re-examine whether Florida should maintain its all-party consent rule.

Together, Judges Khouzam and

Altenbernd certified the case as passing on a question of great public importance. Judge Villanti's dissent distinguished Inciarrano as focusing on the location of the recording, not the content of the recording, and noted that Inciarrano was at the victim's business location, while McDade was in his own bedroom when his step-daughter taped him. /d. at *8-9. In Judge Villanti's view, McDade had a reasonable expectation that he was not being recorded while propositioning his step-daughter in his own bedroom, but the defendant in Inciarrano could not have such an expectation because he was in the victim's office. At bottom, then, this trio of opinions seems to present a call for this Court to reconsider the fundamentals of how chapter 934 should be interpreted as well as whether the difficulties it creates are better left to the Legislature than the courts. None of the three opinions, however, gave any consideration to this Court's Fourth Amendment jurisprudence as the Brugmann dissenters did and none of them considered the view of the Brugmann dissenters since it was not released until five days after they released their decision. If they had considered these decisions and

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the Brugmann dissent, amici believe they would not have seen any need to question Inciarrano. Significantly, the Second District panel also did not give close consideration to why Florida law was amended in 1974 to require the consent of all parties or, put differently, why Florida law is stricter than both federal law and the laws of 40 other states even though an explanation might have shed light on whether McDade's call for strict application of the law to suppress the recording of his communications is to be preferred over the State's view that chapter 934 neither prevented the recording nor introduction in evidence of the recordings. All three opinions from the Second District's McDade decision appear to assume that the Florida Legislature, unlike Congress and other state legislatures simply had a greater reverence for privacy rights and that this reverence warrants continued respect through strict interpretation and application of chapter 934 as amended in 1974. This may not, however, be the case. No definitive explanation for the dichotomy between Florida law and the laws of other jurisdictions has been found by the amici curiae, but one renowned Florida journalist, Lucy Ware Morgan of the Times Publishing Company, chronicled her effort to find an explanation in 2005 when a Miami Herald reporter, Jim DeFede, was facing charges of having violated chapter 934 when he recorded his conversation with former Miami City Commissioner Art Teele shortly before

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Teele committed suicide. As noted, Florida originally had aligned with federal law and the majority of states. Lucy Morgan, "Forgotten Tape Law Takes Down a Journalist," St. Petersburg Times 4B col. 1 (Aug. 6, 2005) (available through Google News). According to the article, "DeFede had been sympathetic to Teele and started his tape recorder running when he realized how distraught Teele was."

Id Because DeFede admitted recording Teele without consent, The Miami Herald fired DeFede and the State Attorney considered prosecuting him. 9 Morgan wanted to know why Florida even had a law that prohibited the recording. She found that when Florida first enacted chapter 934 in 1969 it stated in relevant part: "It shall not be unlawful . . . for a person . . . to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception ... " Ch. 69-17 § 3(2)(d), Laws of Florida (emphasis added). It seems readily apparent that this provision was adopted in the wake of Katz v. United

States, 389 U.S. 347 (1967), Berger v. New York, 388 U.S. 41 (1967), see note 1 supra, to ensure that oral communications intercepted without consent could be introduced in evidence as long as the interceptor was a party to the communication. The Florida law as adopted in 1969 did not allow eavesdroppers - persons not a

9

The state attorney ultimately declined to prosecute Mr. DeF ede on the basis of her conclusion that prosecution of him would serve no public benefit. 14 HUNTON & WILLIAMS

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party to a conversation- to intercept, it simply allowed individuals like McDade's step-daughter or journalists or police who were speaking directly to the person recorded to make the recordings without consent and without a search warrant. Why then was the law amended to make that type of recording unlawful? Morgan found that the Legislature amended the law on October 1, 1974, so that it would read that: "It is lawful . . . for a person . . . to intercept a wire or oral communication ... when all of the parties to the communication have given prior consent to such interception." Ch. 74-249 § 2, Laws of Florida (codified as Fla. Stat. § 934.03(2)(d) (2008)).

After completing the research for her column,

Morgan wrote: "Some think it involved Senate President Dempsey Barron and a tape recording made of him by a Miami Herald reporter.... Others believe it arose out of a Miami scandal involving a circuit judge and other officials who were indicted on bribery charges in 1973 after a series of tape recordings were made involving bags of money produced at a farmers market. " 10 !d. She pointed out that the "change in the law came in a bill sponsored by Sen. W. D. Childers, then a wily Democrat from Pensacola. . . . There were eight other sponsors of the bill which won almost unanimous passage in the House and Senate. One House member voted against the bill, and he no longer remembers why." !d. "Mark Herron, a 10

See Clarence Jones, They're Gonna Murder You- War Stories From My Life at the News Front at 137-41 (Winning News Media Inc. 2012) (discussing the referenced investigation). 15 HUNTON & WILLIAMS LLP

Case No. SC13-1248

lawyer and lobbyist in Tallahassee who was the attorney for the House Criminal Justice Committee," according to her research, "recalls hearing Childers talk about a particularly nasty divorce in West Florida that involved one spouse tape recording another." Her article further reported: "Some recall a House member who got into trouble after a reporter tape recorded a conversation with him and some speculate that it was a .product of Watergate and all the tape recordings that surrounded the downfall of President Richard Nixon." !d. Although Morgan was unable to find a defmitive explanation for the 1974 change in the law, her reporting suggests that legislators may not have been acting out of the noblest of motives. Her reporting in fact suggests that legislators may have been motivated by a desire to prevent reporters and others from recording persons who implicated either themselves or others in wrongdoing. At a minimum, Morgan's work calls into question the Second District panel's suggestion that this Court may have erred in deciding Jnciarrano. The plain language of the statute allowed this Court to prevent application of the statute to work a horrible injustice in Inciarrano and that same language allows the Court to prevent the same type of injustice here. II.

Chapter 934 Would be Unconstitutional as Applied if it Were Interpreted as Prohibiting the Interception at Issue As indicated, when the Court evaluates chapter 934, it should steer clear of 16 HUNTON & WILLIAMS LLP

Case No. SC13-1248

interpretations that would render the statute unconstitutional.

Lucy Ware

Morgan's research for her 2005 column had something to say about this, too. She noted that the facial constitutionality of chapter 934 had been challenged by the press soon after its enactment and that this Court turned away the challenge. See

Shevin v. Sunbeam Television Corp., 351 So. 2d 723 (Fla. 1977).

She then

observed that a more recent U.S. Supreme Court decision had held a federal law violated the First Amendment by creating a civil damage claim against a journalist who disclosed the contents of an intercepted cell telephone call that had been delivered to him by a third party and that contained evidence that a public official had committed a serious crime. See Bartnicki v. Vopper, 532 US 514 (200 1).

Bartnicki and an even more recent decision recognizing First Amendment protection for the gathering of information, Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011), implied that even if this Court's ruling in Shevin on the facial constitutionality of chapter 934 were correct, it would not be constitutional to apply

chapter 934

and similar state laws to prohibit interception of

communications in circumstances such as those here. That proved to be the case when the constitutionality of Illinois' all-party consent statute, Ill. Comp. Stat. Ann. ch. 720 §§ 5/14-2, 5/14-3, was challenged as

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applied to citizens recording without consent of police officers in public places. 11 The Seventh Circuit held the Illinois law "restricts an expressive medium used for the preservation and dissemination of information and ideas," that on the facts of the case, the law "does not serve the important governmental interest of protecting conversational privacy," and "applying the statute in the circumstances alleged here is likely unconstitutional." Id at *21. On remand, the district court held that law was unconstitutional as applied. The Illinois law, like the Florida law, first had been enacted to allow interception of an oral communication by any party to the communication. !d. at *2. Illinois, following Florida's lead, amended its law to require all parties to consent. Jd The Illinois Supreme Court negated the amendment in People v.

Herrington, 645 N.E.2d 957, 958 (Ill. 1994), holding "there can be no expectation of privacy by the declarant where the individual recording the conversation is a party to that conversation." But the Illinois legislature then amended the law further to require all parties to consent to the recording "regardless of whether one or more parties intended their communication to be of a private nature under circumstances justifying that expectation." Ill. Pub. Act 88-677 (1994) (codified at

11

Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir.) (preliminarily enjoining Illinois statute), cert. denied, 133 S. Ct. 651 (2012), on remand, No. 10 C 5235, 2012 WL 6680341 (N.D. Ill. Dec. 18, 2012) (holding Illinois statute unconstitutional as applied). 18 HUNTON & WILLIAMS

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720 Ill. Comp. Stat. 5/14-1(d)). The Seventh Circuit held ''The expansive reach of this statute is hard to reconcile with basic speech and press freedoms." Alvarez, 2012 WL 1592618 at *9 (emphasis in original).

Id The Court explained:

The act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary to the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State's Attorney insists. /d. at * 10. In a detailed analysis of First Amendment precedents, the Seventh Circuit held that while protecting conversational privacy is an important government interest, this interest would not be served by prohibiting interception of communications, such as those at issue in the case. Id at * 19. The court wrote that its decision would not call into question most other states' laws because "the Illinois statute is a national outlier" which contained no exception for the recording of communications when the parties to the communication could not have a reasonable expectation of privacy. !d. at 21. Florida's chapter 934 would be precisely the same type of national outlier if it were interpreted to prohibit recording and disclosure of the communications at issue in this case and it would be unconstitutional as applied.

This conclusion is

not inconsistent with Shevin v. Sunbeam Television Corp., 351 So. 2d 723 (Fla. 1977), because this Court was not attempting there to adjudicate the

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constitutionality of any specific applications of the statute. 12 The plaintiffs in that case, two news organizations, filed a declaratory judgment action shortly after the 1974 amendment made chapter 934 an all-party consent statute. Plaintiff Sunbeam alleged "the amendment impaired its news gathering dissemination activities and constituted a prior restraint in violation of the First Amendment" and that privacy interests protected by the statute were subordinate to their First Amendment rights. Id. at 725. At trial, the plaintiffs offered testimony displaying generally the value

of concealed recordings, but they did not contend that they had engaged in violations of the statute or ask the Court to pass upon any specific application of the statute. Id The trial court declared the statute unconstitutional in all of its applications and the plaintiffs appealed. This Court reversed, but did not address whether the statute would be constitutional in every application. CONCLUSION The Court should adopt the approach of the Brugmann dissenters and affirm the conviction of the defendant because the trial court did not abuse its discretion in finding chapter 934 did not require suppression of the recording at issue.

12

The result sought here also would not contravene State v. Walls, 356 So. 2d 294, 296 (Fla. 1978), or State v. Tsavaris, 394 So. 2d 418 (Fla. 1981). Neither case addressed the requirement that there be a reasonable expectation of privacy in an oral communication for it to be protected, Inciarrano, 472 So. at 1274-76), nor whether chapter 934 would violate state and federal free speech guaranties by prohibiting recording of oral communications when no such expectation exists. 20 HUNTON & WILLIAMS

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Respectfully submitted, Hunton & Williams LLP Attorneys for the Florida Press Association and the Florida First Amendment Foundation By

s/ Thomas R. Julin Thomas R. Julin Patricia Acosta Florida Bar Nos. 325376 & 614599 1111 Brickell Avenue - Suite 2500 Miami, FL 33131 305-810-2516 fax 160 I tjulin or [email protected]

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this amicus brief has been furnished on December 9, 2013, through the Florida Courts eFiling electronic service to: Christopher E. Cosden The Wilbur Smith Law Firm Post Office Drawer 8 Fort Myers, Florida, 33902 [email protected] Pamela J o Bondi, Robert J. Krauss, & Christina Zuccaro Concourse Center 4 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 [email protected] [email protected]

s/ Thomas R. Julin Thomas R. Julin vii HUNTON & WILLIAMS

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CERTIFICATE OF COMPLIANCE I hereby certify that the size and style of type used in this brief is 14-point Times New Roman, in compliance with Florida Rule of Appellate Procedure

9.21 O(a)(2) sf Thomas R. Julin Thomas R. Julin

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

RICHARD R. McDADE,

)

Appellant,

) ) )

v.

) )

STATE OF FLORIDA,

)

Case No. 2D11-5955

) Appellee. ) _____________________________ ) Opinion filed June 7, 2013. Appeal from the Circuit Court for Lee County; Alane C. Laboda, Judge. Christopher E. Cosden of The Wilbur Smith Law Firm, Fort Myers, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Richard R. McDade was charged with various sex crimes after his sixteenyear-old stepdaughter reported that he had been sexually abusing her since she was ten years old. She gave law enforcement two recordings that she had made of her conversations with McDade after her mother did not believe her story and her boyfriend

encouraged her to obtain proof of the abuse. These incriminating recordings were presented at trial. The jury found McDade guilty of two counts of sexual battery on a child less than twelve years of age, one count of solicitation of sexual activity with a child, and two counts of sexual battery on a child by a person in familial or custodial authority. McDade appeals, arguing that portions of the victim's boyfriend's testimony should have been excluded as hearsay and that the recordings should have been suppressed. We affirm, but we certify a question of great public importance to the Florida Supreme Court.

I.

THE FACTS The victim in this case was born in Mexico in 1994. In 2001, she and her

mother moved to Florida. Though their immigration status was a matter of dispute during the trial, the victim testified that she believed that they were illegally in the country. In 2005, the mother married McDade, who was approximately sixty years of age at the time. The mother testified that the couple never had a sexual relationship because they both had health issues. Indeed, McDade and the mother both testified that he suffered from erectile dysfunction. However, the victim alleged that he sexually abused her over a period of years, threatening that she and her mother would be returned to Mexico if she reported what he was doing. McDade operated an ice cream truck, and the victim's mother worked as a janitor. During the period of time when the alleged abuse occurred, the victim was typically home alone with McDade for several hours in the afternoon each school day. She testified that on one such afternoon McDade instructed her to come into his bedroom and told her to take off her clothes. He covered her face with a blanket and he

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penetrated her with both his finger and his penis. She was ten years old at the time. McDade allegedly continued to engage in this conduct weekly until April 2011, when she was sixteen. Over the years, the victim claimed that she reported this abuse to several people, including her mother, a doctor, and two ministers at her church. Her mother admitted that her daughter reported this abuse to her and that she took her daughter to a doctor. The mother adamantly did not believe her daughter. When pressed about her accusations, the victim recanted on more than one occasion. Perhaps because of her retractions, no one reported her claims even though any person who has reasonable cause to suspect child abuse must report it. See§ 39.201, Fla. Stat. (2012). She explained that she retracted her claims due to the fear of being sent to Mexico. In October 2010, the victim started going out with a boy. Her mother and McDade did not like the boyfriend, and this created conflict within the family. In an effort to prevent her from sneaking out of the house, her mother and McDade made her sleep in a closet near their bedroom. She told her boyfriend that McDade was raping her, and he encouraged her to gather proof of the abuse. He loaned her his MP3 player to use as a recording device. In April2011, with the MP3 player hidden in her shirt, she approached McDade in his bedroom on two occasions when they were alone after school. She was essentially conducting her own investigation, hoping to prompt McDade into making incriminating statements that she could secretly record as evidence of abuse. The recordings supported the victim's testimony that McDade would regularly ask her to have sex with him after school. On both occasions, though he did

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not use sexually explicit language, he appeared to be asking her to have sex with him. He pressured her by suggesting that if she did not have sex with him he would get physically sick. McDade also indicated he was doing her a favor by not telling her mother that they were having sex because if the mother knew she would take the victim back to Mexico. Once the conversations were recorded, the victim shared them with her boyfriend. They made digital copies of the recordings and gave them to the police. As a result, the victim was removed from the home and placed in a foster home. The State filed multiple charges against McDade. McDade moved to suppress the recordings under section 934.06, Florida Statutes (2010). The trial court conducted an evidentiary hearing comparable to a standard suppression hearing. It denied the motion. The recordings were introduced into evidence at the trial and were a prominent feature of the trial. McDade was convicted of all but one of the offenses and is now serving long sentences, including two life sentences for capital sexual battery. He appeals these judgments and sentences. It is worth emphasizing that the evidence at trial was surprisingly limited. There was no DNA evidence 1 or other physical evidence to support the victim's claims. McDade waived his Fifth Amendment rights and testified at his trial. As a result, this case rested on the relative credibility of the victim and McDade. Her mother testified in support of McDade and claimed that her daughter was lying about many things. Thus, the digital recordings of the conversations in the bedroom were probably the most 1

McDade allegedly has had a vasectomy. The testimony of the girl at least suggests that she may have incorrectly believed that she could not obtain DNA evidence for this reason.

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important evidence presented during this trial.

II.

THE VICTIM'S BOYFRIEND'S TESTIMONY McDade claims that the victim's boyfriend's testimony that the victim told

him that she was being raped by McDade should have been excluded as hearsay. 2 "Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion." Ray v. State, 755 So. 2d 604, 610 (Fla. 2000). Because the statements in question were introduced to show why the boyfriend encouraged the victim to make the recordings, we conclude that they do not constitute hearsay and thus the court did not abuse its discretion in admitting them. The boyfriend's testimony about the victim's statements was not hearsay because it was not offered to prove that McDade actually raped the victim. See Krampert v. State, 13 So. 3d 170, 174 (Fla. 2d DCA 2009) (holding that statements were not hearsay where they were not offered to prove the truth of the matter asserted but instead to explain their effect on the listener and the listener's subsequent conduct). 2

The entirety of the boyfriend's testimony on the victim's reports of sexual abuse is as follows: [Prosecutor]: Okay. At some point did [the victim] tell you that her [stepdad], Richard McDade, had been having sex with her? [Boyfriend]: Yeah. She told me that she was being raped when she was younger. She said[Defense]: Objection, Your Honor. It's calling for hearsay. After the objection was overruled, the prosecutor continued. [Prosecutor]: Did there come a time after you met [the victim] that she told you that her stepdad had been, as you put it, I guess raping her, but sexually abusing her? [Boyfriend]: Yes. [Prosecutor]: Did there come a point when you told her she should tape it on an mp3 player? [Boyfriend]: Yes.

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Instead, the statements at issue here were offered to explain why the victim's boyfriend gave her his MP3 player to record her conversations with McDade. The statements were relevant to rebut the defense theory that the victim and her boyfriend fabricated the abuse allegations so that they could spend more time together. Even if the statements had been admitted in error, any error was harmless. See Ventura v. State, 29 So. 3d 1086, 1089 (Fla. 201 0) (explaining that an error is considered harmless only if there is no reasonable possibility that it contributed to the conviction). The boyfriend merely repeated the victim's statement without going into any detail, and evidence was presented that the victim had shared the same information with various other people. Thus, there is no reasonable possibility that the boyfriend's brief repetition of the victim's statement affected the verdict.

Ill.

THE RECORDINGS MADE BY THE VICTIM McDade also argues that the recordings should have been suppressed

because chapter 934, Florida Statutes (201 0), prohibits "any person" from recording oral communications without consent and disclosing such recordings. We hold that the narrow factual circumstances of this case do not fall within the statutory proscription of chapter 934, but we certify a question to the Florida Supreme Court. The standard of review for an order denying a motion to suppress evidence under section 934.06 has not been extensively discussed in prior case law. As a threshold matter, we note that the Fourth Amendment is not implicated in this case because the recordings were made by a private individual as opposed to a government actor: "the protection against unreasonable searches and seizures applies only to cases involving governmental action; it does not apply when the search or seizure was

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conducted by a private individual." Armstrong v. State, 46 So. 3d 589, 593 (Fla. 1st DCA 2010). Because McDade was attempting to invoke the protection of 934.06, we conclude that he had the initial burden of proof. 3 Typically, we would review the trial court's application of the statute de novo and the court's findings of fact to determine if they are supported by competent, substantial evidence. See Chackal v. Staples, 991 So. 2d 949, 953 (Fla. 4th DCA 2008). But see O'Brien v. O'Brien, 899 So. 2d 1133, 1137-38 (Fla. 5th DCA 2005) (reviewing the trial court's decision to exclude electronic communications under section 934.03 for an abuse of discretion). However, because the facts here are not in dispute and we are reviewing a trial court's application of a statute in this context, we conclude that we review the trial court's decision de novo. See Kephart v. Hadi, 932 So. 2d 1086, 1089 (Fla. 2006) ("The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review."). Chapter 934 explicitly and broadly prohibits "any person," including private individuals, from recording oral communications without consent and disclosing such recordings. §§ 934.02(5), .03(1 ). Further, "[w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial .... " § 934.06. But the statutory proscription of chapter 934 only applies where the person uttering the communication has a reasonable expectation of privacy in that communication under the circumstances. § 934.02(2) (defining "oral communication" as "any oral communication uttered by a person exhibiting an expectation that such communication 3

Though we recognize that the State mistakenly proceeded at the suppression hearing as if it had the burden of proof, this procedural error does not change the result here because the facts in this case are not in dispute.

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is not subject to interception under circumstances justifying such expectation ...."). The Florida Supreme Court has explained that [t]his expectation of privacy does not contemplate merely a subjective expectation on the part of the person making the uttered oral communication but rather contemplates a reasonable expectation of privacy. A reasonable expectation of privacy under a given set of circumstances depends upon one's actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable. State v. lnciarrano, 473 So. 2d 1272, 1275 (Fla. 1985). Significant factors to consider in determining whether a defendant's expectation of privacy was reasonable under the circumstances include the location in which the communication occurred, the manner in which the communication was made, and the kind of communication at issue. Stevenson v. State, 667 So. 2d 410, 412 (Fla. 1st DCA 1996). lnciarrano involved a recording a victim made of his own murder. 473 So. 2d at 1273. The defendant had entered the victim's office.

kL. at 1274.

The victim was

recording his conversation with the defendant regarding a business deal in which the victim no longer wanted to participate. The recording, found in the victim's desk drawer, had captured the conversation as well as the sound of a gun being cocked, five shots being fired, several groans, the gushing of blood, and the victim falling from his chair.

kL.

The court determined that any subjective expectation of privacy that the defendant

may have had was not justified under the circumstances because society would not be prepared to recognize it as reasonable. ~at 1275. As in lnciarrano, this case involves recordings made by a victim of the very criminal acts by which she was victimized. The minor victim recorded McDade soliciting her for sexual acts, as he had done for years. And though the conversation

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took place in McDade's home, it was also the victim's home. Considering these circumstances and consistent with the analysis and holding in lnciarrano, we conclude that any expectation of privacy McDade may have had is not one which society is prepared to accept as reasonable. Indeed, society has a special interest in protecting children from sexual abuse, and exceptional treatment of sex crimes in other areas of the law reflects these societal values. See. e.g.,§ 90.404(2), Fla. Stat. (2012) (providing that similar fact evidence of other crimes, wrongs, or acts is generally inadmissible when it is only relevant to prove bad character or propensity but creating exceptions to this rule for cases where the defendant is charged with child molestation or a sexual offense); § 394.910, Fla. Stat. (2012) (addressing the unique risk that sexually violent predators pose to society by creating a civil commitment procedure to provide for their continuing care and treatment);§ 39.201 (providing that "any person" who knows or has reasonable cause to suspect that a child is being abused, sexually or otherwise, must report that knowledge or suspicion). This case involves the rape of a child in her own home by her own stepparent. It is precisely because the rape of a child is such a heinous crime which is so often difficult to detect that society has a special interest in guarding children from it and exceptions in the law exist to further this goal. Considering these values and the already-existing legal exceptions that reflect them, we conclude that suppressing the recordings pursuant to chapter 934 under the circumstances of this case would produce an absurd result-a result we cannot fathom was intended by the legislature. 4

4

We note that in reaching this conclusion, we have considered State v. Walls, 356 So. 2d 294, 296 (Fla. 1978), in which the Florida Supreme Court held that an extortion threat delivered personally to the victim in the victim's home was an "oral

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Accordingly, we affirm. However, we certify the following question of great public importance to the Florida Supreme Court: DOES A RECORDING OF SOLICITATION AND CONFIRMATION OF CHILD SEXUAL ABUSE MADE BY THE MINOR CHILD FALL WITHIN THE PROSCRIPTION OF CHAPTER 934, FLORIDA STATUTES (2010)? Affirmed; question certified.

ALTEN BERND, J., Concurs specially with opinion. VILLANTI, J., Concurring in part and dissenting in part with opinion.

ALTENBERND, Judge, Concurring specially. I concur in Judge Khouzam's opinion for the court. The key issue in this case is whether the supreme court, when explaining the statutory definition of a protected "oral communication" in lnciarrano, intended for the "circumstances" that

communication" within chapter 934. Though Walls dealt with a recording of a criminal act made by a victim in his home, its holding does not control here because it does not implicate society's special interest in protecting children from sex abuse. Moreover, the reasoning in Walls has been called into doubt. See lnciarrano, 473 So. 2d at 1275 (distinguishing Walls because it did not address the requirement that any expectation of privacy in a communication must be reasonable for chapter 934 to apply); Jatar v. Lamaletto, 758 So. 2d 1167, 1169 (Fla. 3d DCA 2000) (questioning the continued validity of Walls in light of lnciarrano and holding that Jatar's extortion threat was not a protected "oral communication" under chapter 934 because his expectation of privacy was not justified). - 10-

"society" is not prepared to recognize to include Mr. McDade's alleged long-term abuse of a child. In lnciarrano, the circumstances the court actually considered were the semipublic place where the recording occurred, the determination that the defendant was a trespasser, and perhaps the fact that the recording device was in plain view. If these types of factors, i.e., time, place, legal status of the defendant, and physical conditions associated with the recording, are the only factors we should consider in this case, they all strongly support Mr. McDade's expectation that his statements were not being intercepted. If those are the only factors we are allowed to consider, then Judge Villanti is correct and we should reverse these convictions and sentences. Under the "society is prepared to recognize" test, I conclude that in 2011 a person who regularly and consistently abused a teenager in a bedroom of their shared home had no reasonable expectation that their conversations about the abuse would never be recorded. In this modern digital world, any such adult should have expected that eventually a teenage victim would record such conversations in self-defense. Accordingly, I concur in this decision because Mr. McDade could not reasonably expect his statements to be protected oral communications. Despite my concurrence, I frankly share some of Judge Villanti's concerns about the direction that lnciarrano takes us in today's decision. I share five concerns in this special opinion.

I.

THE BURDEN OF PROOF AT THE PRELIMINARY HEARING My first concern involves the burden of proof and persuasion on this issue.

Whether this recording violates chapter 934 is not an issue that is resolved at a typical hearing on a motion to suppress under Fourth Amendment standards. In the trial court,

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the hearing was conducted like a hearing on a motion to suppress, but it was actually a preliminary hearing that should have been conducted under section 90.105, Florida Statutes (2011 ), to determine whether these recordings are statutorily inadmissible under section 934.06. We have assumed that the burden of proof and persuasion at this hearing rested with Mr. McDade. But at the time of the preliminary hearing, he was presumed innocent; he had all of his Fifth Amendment rights. By expanding the holding of lnciarrano to include these circumstances, we may have effectively placed the burden on him to prove by a preponderance of the evidence that he is innocent in order to prevent the recordings from being admitted into evidence. I am troubled by this procedure. In this case, however, I do not believe that the burden of proof at the hearing is dispositive. The trial court seemed to place the burden of proof on the State. Moreover, the evidence is essentially undisputed on this issue. The issue of whether these conversations are protected "oral communications~~ for purposes of the statute is a question of law and we correctly review it de novo. If this case involved substantial disputes of fact at the preliminary hearing, the burden of proof and persuasion could be a very difficult issue.

II.

BAD FACTS SOMETIMES MAKE FOR BAD LAW

Second, there can be little question that the bad facts in lnciarrano placed great pressure on the supreme court to reach the outcome it reached. This case presents equally difficult facts for this panel. As I explain at the end of this opinion, we are bound to be faced with an increasing number of "bad factslt cases under chapter 934. In 1985, when the supreme court considered lnciarrano, it arguably had two

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options. First, it could have relied on the strong legislative policy announced in 1974. Florida, unlike most other jurisdictions, requires the consent of "all parties" to an intercepted oral communication. 5 If it had enforced this strong policy, it could then have allowed the legislature to revisit its questionable minority view. Instead, it selected a second option. It relied on the "objective" test within the definition of "oral communication~~ to provide a societal-approval test that allows for case-by-case

outcomes when statutory suppression of evidence seems unnecessary. As discussed later, I question whether the societal-approval test is an erroneous importation of the Fourth Amendment into this statute. It is not an objective test in the normal common law sense. This test is inherently subject to criticism as a result-oriented test. In this case, the stepdaughter is undoubtedly aided by the result we reach, but I am left to wonder whether the law would be stronger if we simply had required the legislature in 1985 to re-examine the merits of the 1974 amendment creating the "all parties" requirement in the statute.

Ill.

INCIARRANO UNINTENTIONALLY WEAKENED THE LEGISLATIVE POLICY PROTECTING OUR PRIVACY

5

1n 1971, President Richard M. Nixon began secretly recording conversations in the White House. Nixon White House Tapes, Nixon Presidential Library & Museum, http://www.nixonlibrary.gov/virtuallibrary/tapeexcerpts/ (last visited May 22, 2013 11:31 A.M.). When this was discovered, the public was very troubled by the practice. In 1974, with virtually no debate, the legislature amended Florida's statute to require the consent of "all of the parties" to a conversation. See ch. 74-249, § 2, at 695, Laws of Fla.; State v. Tsavaris, 394 So. 2d 418 (Fla. 1981) (describing enactment of amendment). The "all party" version of this statute remains a minority view; many states and the federal government continue to require the consent of only a single party. See. e.g., 18 U.S.C.A. § 2511(2)(a)(iii)(d) (2012); see generally Carol M. Bast, What's Bugging You? Inconsistencies and Irrationalities of the Law of Eavesdropping, 47 DePaul L. Rev. 837 (1998) (surveying state-by-state consent laws).

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Third, and related to my concerns in the preceding section, by shifting the analysis of this statute from the strong language in section 934.03(1) to the definition of "oral communication" in section 934.02(2), the decision in lnciarrano weakened the legislative policy protecting privacy. If one examines the statute as created in 1969 and as amended in 1974, the legislature constructed a strong, broad policy protecting people from surreptitious interception of their oral communications. The policy created a prohibition of secret recordings that was enforced by both civil and criminal penalties, as well as by the statutory exclusionary rule contained is section 934.06. This broad policy was subject to enumerated exceptions in section 934.03(2). The exceptions included the right of police to conduct lawful investigations and of private citizens to record conversations only with the consent of all parties. Significantly, the legislature created no exception for the surreptitious interception of oral communications by private citizens conducting their own personal investigations of ongoing criminal activity. This structure created a strong policy and then placed the burden on litigants to overcome that policy by establishing one of the enumerated statutory exceptions. But lnciarrano changed this policy by its reliance on the definition of "oral communication" in section 934.02(2). The reasoning in lnciarrano provides protection from interception of conversations only if, after the fact, a judge decides that "society" is willing to provide that protection. To some degree, the content of the recording is used to determine whether the party that opted to record the conversation is either a felon or a person free to record the conversation. This is true even though the recording party, before the recording device is turned on, can never be certain what the recorded party will say after it is turned on.

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By relying on section 934.02(2) instead of section 934.03, the holding in lnciarrano flips the burden of proof and persuasion from the party seeking an exception to the statute to the party seeking the protection of the statute. That may not be an unreasonable policy, but I see little evidence that it was the policy of the legislature that enacted these protections. Nevertheless, the legislature has had a generation to overrule lnciarrano and it has not done so. It is noteworthy that the difficult issue in this case is only difficult in a Florida state court. Under the similar federal statute, these recordings are admissible because the stepdaughter consented to the recording. The federal statute has the same definition of "oral communication," but I can find no instance in which a federal court has been forced to apply the societal-approval test to avoid a difficult outcome. See 18 U.S.C.A. § 2510(2) (2012).

IV.

THE ODD RELIANCE ON FOURTH AMENDMENT CASE LAW IN INCIARRANO Fourth, with all due respect to the members of the supreme court in 1985,

I am inclined to believe that the societal-approval test announced in lnciarrano is not a proper interpretation of the statute and is, in fact, an odd importation of Fourth Amendment standards. When the supreme court created the "society is prepared to recognize" standard to measure the objective reasonableness of a person's expectation that communications are not being intercepted, the court relied exclusively upon Shapiro v. State, 390 So. 2d 344 (Fla. 1980). But Shapiro did not involve a recording. The defendant in Shapiro was charged with possession of cocaine. He was searched at an airport. Shapiro involved a warrantless search by government agents. This was a

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typical Fourth Amendment case that relied on the analysis in Katz v. United States, 389

u.s. 347 (1967). The court's decision to import Fourth Amendment analysis into this statute substantially changes the analysis performed under the statute. Ordinary citizens are permitted to intrude into one another's private lives under an entirely different set of rules than those that control the government. The Fourth Amendment of the United States Constitution and article I, section 23 of the Florida Constitution are intended to protect people from undue government intrusion into their private lives. These constitutional protections may play a small role in molding the social standards that underpin the privacy rights that exist between and among private persons, but that is all they do. The rights between such private persons may be regulated by the legislature as it sees fit, subject to the limitations of article I, section 23. 6 Society is not fond of murderers or child molesters. If the circumstances to be considered are exclusively factors such as time, place, and legal status of the defendant, this test is easier to apply but it may not actually be a societal-approval test. If we consider the additional factors that we admittedly have relied upon in this case, "society's" opinion on the matter is a troubling test that leaves our rights in flux. Under the common law, an objective test is not based on society's opinion but on the standard established by the ordinary reasonable person living in that society 6

Arguably, the societal-approval test is actually a determination that section 934.03(1) is unconstitutional as applied under the strict scrutiny analysis required by article I, section 23 of the Florida Constitution. See Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla. 1998). In other words, it is arguably unconstitutional for the legislature to intrude upon the stepdaughter's right to record these conversations in private when the recording is necessary to protect her from being victimized. Whether that analysis would also apply to the admissibility of these recordings in a public trial may be a different question. - 16-

under like circumstances. See Fla. Std. Jur. lnstr. (Civ.) 401.4; Miami-Dade Police Dep't v. Martinez, 838 So. 2d 672, 675 (Fla. 3d DCA 2003); Prosser, Law of Torts § 32 (1971 ). Due to the holding in lnciarrano, we are not allowed to employ the typical ordinary reasonable person standard in this case. Frankly, I am not certain what the outcome would be under that test.

V.

THE MODERN DIGITAL WORLD COLLIDES. WITH CHAPTER 934 In closing, I would point out that the decision whether to enforce the strong

language and original policy of the statute or to take an "all the circumstances" approach that permits some use of seemingly private recordings is a decision that must be made in the context of the modern digital world. Chapter 934 was adopted in an analog era before cell phones and MP3 players were invented. Today we live in a society where practically every teenager and even many senior citizens carry small, concealed recording devices on their persons. The modem smartphone can record video as well as audio and transfer it immediately to the Internet. It is likely that the "all parties" requirement in chapter 934 now results in hundreds of illegal recordings and perhaps thousands of illegal disclosures on the Internet in Florida every day. It seems

ill advised to depend upon individual trial judges and the societal-approval test to sort out the good recordings from the bad after the fact. The huge advances in technology that have affected our society's view of privacy should prompt the legislature to revisit the 1974 amendment and to decide whether it would now be more prudent to return to a statute comparable to the federal statute and the statute in place in most other states.

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VILLANTI, Judge, Concurring in part and dissenting in part. I agree with the majority that the trial court did not abuse its discretion by admitting the victim's boyfriend's statements. However, I must respectfully dissent from the portion of the majority's opinion that could be interpreted as creating an exception to section 934.06 for victims of child sexual abuse because 11Where a statute is free from ambiguity, we must follow its plain meaning." State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1073 (Fla. 2006). In essence, that portion of the majority's decision has declared that, despite the statute's plain language, the legislature did not intend for audiotaped evidence gathered by a victim of child sexual abuse without the alleged abuser's consent to be excluded even though the exclusion of such evidence is mandated by a duly enacted statute. While I would like the law to be so, I do not believe that it is so. Section 934.06, Florida Statutes (201 0), specifically provides: Whenever any wire or oral communication has been intercepted. no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter. The prohibition of use as evidence provided in this section does not apply in cases of prosecution for criminal interception in violation of the provisions of this chapter. (Emphasis added.) Section 934.03(1) generally prohibits the interception of any wire or oral communication. Section 934.03(2) provides a list of "exceptions" to this general prohibition on intercepting communications. One of the exceptions is if all of the parties to the conversation have consented to the interception. § 934.03(2)(d). Notably,

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however, the interceptor's status as a victim of child sexual abuse is not included in that list. Thus, the plain language of sections 934.03 and 934.06 prohibits the admission of the recordings at issue in this case. To reach its contrary result, the majority relies on State v. lnciarrano, 473 So. 2d 1272 (Fla. 1985), for the proposition that a recording made by a victim of child sexual abuse should not be subject to the clear and unambiguous provisions of section 934.06. However, in my view, the facts in lnciarrano are sufficiently different from those in this case to preclude any purported application of stare decisis. In lnciarrano, the defendant went to the victim's business office with the intent to do harm to the victim. ,kh at 1274. In finding that lnciarrano had no reasonable expectation of privacy in a recorded conversation made by the victim without lnciarrano's consent, the court considered "the quasi-public nature of the premises within which the conversations occurred, the physical proximity and accessibility of the premises to bystanders, and the location and visibility to the unaided eye of the microphone used to record the conversations." ld. The court also noted that when going into the victim's place of business, lnciarrano was an invitee but that his status changed to that of a trespasser when he decided to commit a crime. ,khat 1275-76. In consideration of all of these factors, the court held that lnciarrano had no reasonable expectation of privacy in oral communications made while he was in the victim's place of business. Here, however, the facts show that McDade was inside his own bedroom in his own residence. Hence, the premises within which the conversation occurred were anything but "quasi-public," and they were not accessible to "bystanders." I cannot conceive of a location where an individual has a greater expectation of privacy than in

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his or her own bedroom in his or her own house-an area that has traditionally been presumed to have a heightened right of privacy, not a reduced one. See. e.g., Katz v. United States, 389 U.S. 347, 361 (1967) (noting that "a man's home is, for most purposes, a place where he expects privacy") (Harlan, J., concurring); Jardines v. State, 73 So. 3d 34, 45 (Fla. 2011) (noting that a person has a reasonable expectation of privacy in his or her own private home). This is a crucial factual distinction. To my reading of lnciarrano, the court focused on whether society was prepared to recognize the expectation of privacy in the location of the conversation-not the content of the conversation or the status of the recorder and/or recordee. lnciarrano's discussion of the quasi-public nature of the victim's business premises and the invitee/trespasser distinction makes clear that the court decided the case based on the fact that lnciarrano did not have a reasonable expectation of privacy in the oral communication because he was at the victim's business location. Whether his expectation of privacy was reasonable depended on the location-not the content-of the conversation. Hence, while I agree with the majority that society is not, in general, inclined to protect those who commit sexual offenses against children, it is the expectation of privacy in the location at issue-not any expectation of privacy in the substance of the conversation itself.-that dictates whether one party may legally intercept that conversation.

I note that when chapter 934 was originally enacted in 1969, it permitted a private person to intercept an oral communication when the person was one of the parties involved. See ch. 69-17, Laws of Fla. However, in 1974, the legislature amended the statute to require consent of "all of the parties" to the conversation. See

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ch. 74-249, § 2, at 695, Laws of Fla. In the almost forty years since this statutory amendment, the legislature has declined to carve out an exception to the statute for victims of crimes. Surely, had the legislature intended to create such an exception, or even a very narrow exception for child sexual abuse victims, it could easily have done so. See. e.g., Am. Bankers Life Assurance Co. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968) (noting that "had the legislature intended the statute to import a more specific and definite meaning, it could easily have chosen words to express any limitation it wished to impose"). As the majority aptly points out, when the legislature intends to provide such special protection to victims of child sexual abuse, it knows how to do so. See. e.g., § 90.404(2), Fla. Stat. (201 0) (providing a special exception to the general rule concerning similar fact evidence in cases involving child sexual abuse). The fact that the legislature has chosen not to create such an exception to section 934.06 conveys an intent to forbid the use of all such interceptions, regardless of the victimhood of any of the parties to the conversation. Perhaps the 1974 legislature was not thinking of barring evidence derived from vigilante justice. It certainly could not have conceived of the improved technology that would assist in such an endeavor in 2011. However, the existing statute leaves no room for these eventualities. Nor do I believe, as the concurring opinion posits, that the language in lnciarrano opens the door for this court, and the trial courts, to determine on an ad-hoc basis what privacy interests society is prepared to recognize. That role is reserved for the legislature. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (noting that it would be an abrogation of legislative power for the courts to extend, modify, or limit the express provisions of a statute). In a perfect world, the legislature would have

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amended section 943.06 to address the holding of lnciarrano. Its failure to do so creates a legal dilemma for the State in cases when it seeks to overlook the victim's extrajudicial actions in an effort to enhance its evidence against the accused. However, I do not believe it is within the courts' reach to engage in policy-weighing. Finally, while somewhat beside the point, my reading of the record shows that a jury using its common sense would have reached the same result without the inadmissible evidence. Hence, I would reverse McDade's conviction and remand for a new trial without the admission of the audiotaped evidence.

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