A Florida cop secretly recorded a “hallway deposition” on his body cam of an innocent criminal court defendant and counsel, without asking his permission, in the courthouse hallway.
Florida’s wiretapping law only exempts police who are investigating a suspected crime.
But this Miami Beach officer was investigating a court case, and in so doing prejudiced the rights of the innocent, and he broke the law too.
Because he didn’t suspect anyone of a crime while having a discussion in a courthouse hallway.
And courthouses have different expectations of privacy than normal public places, which Miami Beach police officer [__Julio Blanco__](https://www.flickr.com/photos/37714694@N02/13432965615/)should’ve know as a frequent, paid, allegedly professional visitor.
Though, the strange court system of Miami-Dade County is partly to blame, because misdemeanor defendants aren’t allowed to hold real depositions.
While wiretapping laws are much discussed, and oft used by police to dissuade citizens from recording, they aren’t evenly enforced.
If a citizen records the police, he could face criminal prosecution. (see below)
However, when a police officer secretly records people without consent, the Miami-Dade State Attorney’s Office does little more than issue comments like the one provided for this story:
> “I’m sorry but the story has nothing to do with prosecutors.”
The MDSAO rushed to court to handle the incident, but of course they claim it has nothing to do with them.
As the Miami Herald [__explains__](http://www.miamiherald.com/news/local/crime/article68487382.html):
> A Miami Beach cop, worried about his words being twisted at trial, recently used his newly outfitted “body camera” to record a hallway interview by a defense attorney — without telling her first. [Miami Beach] Chief Oates also stood by his officer, saying Blanco broke no rules.
> “One officer did it for a narrow reason in that he was worried whatever he said was going to be misrepresented by the public defender in the courtroom,” Oates said. The police union said there is no expectation of privacy in in the courtroom hallway.
> Although the department said Blanco did nothing wrong, after meeting with prosecutors, the department has ordered officers to leave the cameras off in the hallways. Officers can now ask that __prosecutors__ stand in on misdemeanor “hallway depositions.”
> “For these misdemeanor cases, both the State Attorney’s Office and the Department want to avoid a continuance and avoid formal depositions,” Oates wrote in an email on March 15. “This is because any postponement of a misdemeanor trial almost always favors the defendant and increases the likelihood that the case will be dismissed.”
Under the Sixth Amendment it is the defendant, not the State, who has a right to a speedy trial.
What we can see is important for the police, and for the prosecutors is speed, efficiency, and ease of prosecution.
Not constitutional rights at trial.
Miami Beach Police Chief Oates is no stranger to lawsuits, just having [__successfully disposed of a suit against himself personally__](http://www.denverpost.com/news/ci_27777712/lawsuit-against-aurora-former-police-chief-dan-oates), when an officer in his command in Aurora, Colorado claimed that the 1st Amendment gave him permission to lie under oath, so he could publicly protect a fellow cop who’d been disciplined. The Miami Beach Chief is still a named defendant, for his former Aurora Police Department charges executing a reviled [__mass detention__](http://www.aurorasentinel.com/news/city-aurora-sued-mass-detention-robbery-search/) and arrest, while looking for a robber in 2014.
Assuming here that the public defender did have an expectation of privacy – which has been asserted – and no analysis has been shown that the attorney would not have an expectation of privacy, now we must look to consent or an exemption to the law for the cop’s body cam to be considered lawfully recording.
Police are only given an exemption allowing them to record under certain circumstances without consent under FSS. 934.03(2)(c) which [__says__](http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String&URL=0900-0999/0934/Sections/0934.03.html):
> It is lawful under this section and ss. [__934.04__](http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0934/Sections/0934.04.html)–[__934.09__](http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0934/Sections/0934.09.html) for an investigative or law enforcement officer or a person acting under the direction of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and __the purpose of such interception is to obtain evidence of a criminal act__.
This exemption, as you can see above underlined, has been narrowly drawn to require that the purpose of the recording is to obtain evidence of criminal activity.
As the Chief readily admitted about his Miami Beach cop Julio Blanco in this case, the officer was not investigating any crime, there is no police report or 911 call to which he was responding.
Blanco was covering his own ass.
This definitively shows the officer probably broke the law.
And if the state cannot show there was no expectation of privacy, the officer definitely broke the law.
But wait it gets better.
Also from the Miami Herald article, “under Miami Beach’s camera program, veteran officer Julio Blanco did not have to inform the defense attorney that he was recording her in the court hallway”.
While it is not clear who is making this claim, it is a false claim.
It is a basic civics principle that legislatures, not police departments, write laws.
Therefore, regardless of the policy of the Miami Beach Police Department or others, their opinion is not law, does not supersede the laws of the state, or give any new exemption from them.
Compounding the problem is the arcane procedural short cut which Miami-Dade County courts take, and which might not be constitutional in light of the abuse we are seeing in just this single incident.
Everyone has a right to a fair trial.
However, in Miami-Dade County, misdemeanor trial defendants are not allowed by right to take depositions.
Compounding this is, is that the state attorney’s office and Miami’s 36 police departments policing 2,500,000 people are against making any change to that arrangement.
## Florida Cops and Recordings: Another Prosecutorial One Way Street
Florida is one of twelve states with an all-party consent law; in the other thirty eight states you are free to record face to face conversations which you are a party.
The Miami Herald as a local newspaper of record receives what amounts to a government subsidy to advertise all manner of government activities which nobody sees in their dying print editions.
But a few people read the Miami Herald’s recent [__Sunday feature story__](http://www.miamiherald.com/news/local/crime/article68487382.html) article noted above about the Miami Beach cop secretly recording a public defender in the Miami-Dade Courthouse.
Unfortunately, the report lacked a detailed and accurate explanation of the Florida wiretap law.
And the report also entirely lacked a response from the Miami-Dade State Attorney’s Office (MDSAO) who should prosecute this actual offense of the wiretap law, by a cop who wasn’t investigating a crime.
The Florida statute regulating wiretapping is titled “[__Interception and disclosure of wire, oral, or electronic communications prohibited__](http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0934/Sections/0934.03.html)” which seems menacing, but the law is filled with specific exemptions that protect most people recording from being easily criminalized.
One is the exemption for “Good Faith”, since most people don’t even know that they could be charged with a felony for using their smart phone, virtually at any time in their home state.
This law – at least in Miami-Dade County – has primarily been misapplied to prevent citizens seeking accountability from their public officials or police.
Certainly, it hasn’t been used to prosecute public officials who violate the wiretap law.
When a citizen records police, without consent, even openly, they are often prosecuted or threatened with prosecution, as was done to the author in a threatening letter, which you can see below.
Florida law has two major allowances for recording a face to face conversation, and a slew of other exemptions.
**The two major points are consent and expectation of privacy.**
If you have consent to record, or if the subject recorded has no expectation of privacy, then you can record without being in violation of the statute.
Whether one has an expectation of privacy is a fact-intensive analysis.
While many, including the Miami Beach police union, will argue that there is no expectation of privacy in the “courtroom hallway,” this is not a fully accurate representation of the law, which is more nuanced.
Florida and Federal courts have held that to have a reasonable expectation of privacy requires a two prong test.
The first prong one must have an actual, subjective expectation of privacy.
The second is, it must be an expectation of privacy that society as a whole would except as reasonable, as the Supreme Court decided in [__Katz v US.__](https://www.soc.umn.edu/~samaha/courses/4162_05sp/KatzBrief.htm)
Standing on a public sidewalk strips most people of the expectation of privacy to be photographed.
Got it so far?
Florida courts have held that determining if the expectation of privacy is one society would find reasonable is even more detailed, having a three prong test.
The three prong test in Florida includes not only the place in which the conversation takes place, but also the manner and kind of conversation, as Florida’s 1st District Court of Appeal decided in [__Stevenson v State.__](http://www.leagle.com/decision/19961077667So2d410_1953/STEVENSON%20v.%20STATE)
No person speaking in a public place, in a manner in which others could reasonably overhear, would have an expectation of privacy, or speaking in a public meeting.
However, those whispering about private matters may have a reasonable expectation of privacy, even public officials.
Again, the expectation of privacy is a highly fact-intensive analysis.
So, in the state of Florida, whispering to your friend on that public sidewalk, so you cannot be heard by all who might walk by could confer to you some right to privacy for your spoken words, even to a public official, but you’d still have to expect that someone could photograph you as you whispered too.
Welcome to Florida.
Unfortunately, the MDSAO does not generally take into account the expectation of privacy provision, if and when choosing whom to prosecute, citizens or police officers.
The right to record matters of public interest or concern is a sacred right under the First Amendment.
It is expected that police, state attorneys, and media outlets would educate themselves on the particulars of the law before acting on the law, or addressing the law in a public manner.
Failure of these actors to perform their due diligence creates confusion amongst the citizenry on their rights and responsibilities under the law.
This leads the public to either forsake their rights, or unintentionally violate the law.
Generally, Florida’s citizens face few prosecutions under the wiretapping law, but they may face a lot of threats of prosecution.
Florida police have little to fear.
