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  1. #1
    AlexB18 is offline Member
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    Oral communication interception in FL (FSS 934.03)

    What is the name of your state (only U.S. law)? Florida

    About a year ago, a crazy girl that lived next door started making false allegations and spreading rumors of physical abuse against me. On one instance, she came over distraught and admitted to fabricating allegations for spite and to save face with her friends who I previously told that I did not like her. I told her that if she wanted to continue the conversation, I would have to record the conversation.

    I turned on my phone and hit the record button and explicitely declared "the recorder's on." Without her explicitely acknowledging this, she continued to talk. She goes on to admit to needing psychiatric help and to falsifying evidence and allegations.

    On a separate occasion, she went through my phone and erased all of the recordings on there. However, I had already backed my phone up to my computer. She was and still is under the impression that all of those records have been erased.

    After several incidents in which she assaulted/battered/stalked/trespassed/false imprisoned my girlfriend and me, I called the cops on her and had them explain that if she continues to talk to me she will be in trouble. However, crazy as she was, she filed a complaint against me at school and I've been under fire for this for the past few months. Her allegations are 100% false and she even mentions the event for after which she was recorded.

    I've gotten mixed opinions of whether to use this recording or not as both my defense against her and in a libel/slander/extortion civil complaint. My argument as it relates to 934.03 and 934.02 is that she did not have reasonable expectation of privacy after I warned her that the recorder was on and that her continuing to talk was implied consent. The setting was in my apartment. Nobody was intoxicated or impaired in any way. However, she does sound in a slightly distraught emotional state. I usually have a roommate but I'm not sure if he was present in his room at that time.

    If anyone has some case law in FL relating to this, I would greatly appreciate it... it's a criminal offense in this state to record someone without their consent but I haven't been able to find any cases. She's crazy enough to deny she gave consent.
  2. #2
    justalayman is offline Senior Member
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    and your proof she was aware you were recording is what? If she did not acknowledge your statement that you were recording, you have nothing. Heck, I'm not all that technically literate but I can dub in a "I'm recording this" into a sound file.
  3. #3
    AlexB18 is offline Member
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    Quote Originally Posted by justalayman View Post
    and your proof she was aware you were recording is what? If she did not acknowledge your statement that you were recording, you have nothing. Heck, I'm not all that technically literate but I can dub in a "I'm recording this" into a sound file.
    I know what you're saying but that's not the legal definition of consent nor do they assume by default that evidence is fabricated.

    Here's an example... you call up a company and they warn you that this call may be recorded. If you continue to talk, it's implied consent. I made this extremely specific... 934.02 has a definition of oral communication. If you didn't have a reasonable expectation of privacy, it's not oral communication.

    I appreciate the effort but you're shooting from the hip on this one.
    Last edited by AlexB18; 05-30-2011 at 04:25 PM.
  4. #4
    justalayman is offline Senior Member
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    Quote Originally Posted by AlexB18 View Post
    I know what you're saying but that's not the legal definition of consent nor do they assume by default that evidence is fabricated.

    Here's an example... you call up a company and they warn you that this call may be recorded. If you continue to talk, it's implied consent. I made this extremely specific... 934.02 has a definition of oral communication. If you didn't have a reasonable expectation of privacy, it's not oral communication.

    I appreciate the effort but you're shooting from the hip on this one.
    whatever you want to believe. I suggest you do a lot more research before you rule me wrong.

    btw: a conversation on a phone, in Florida statutes, is a very different situation.
  5. #5
    AlexB18 is offline Member
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    Quote Originally Posted by justalayman View Post
    whatever you want to believe. I suggest you do a lot more research before you rule me wrong.

    btw: a conversation on a phone, in Florida statutes, is a very different situation.
    I understand... but also,

    934.02:

    (3) "Intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.

    (4) "Electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire, electronic, or oral communication other than:
    (a) Any telephone or telegraph instrument, equipment, or facility, or any component thereof:
    1. Furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or



    Technically, it was recorded by a telephone (or a component thereof) that was furnished to the subscriber by an electronic communication service and it can be argued that it was being used in the ordinary course of its business.
  6. #6
    Zigner is offline Senior Member
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    I'm sorry - but why are you here again?
  7. #7
    justalayman is offline Senior Member
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    here is the case law behind your statement:

    [url=http://ftp.resource.org/courts.gov/c/F2/924/924.F2d.215.90-5514.90-5204.html]924 F.2d 215[/url]

    You need to look at how they decided the call was not intercepted by something other than the phone. You will see that your situation does not fall under that exception.

    So, what you will find is:


    Technically, it was recorded by a telephone (or a component thereof) that was furnished to the subscriber by an electronic communication service and it can be argued that it was being used in the ordinary course of its business.
    is not correct. It was not intercepted by the telephone. It was intercepted by a recording device. There was no telephone involved in the means the court ruled it would be applicable.
  8. #8
    AlexB18 is offline Member
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    Thanks... I've been looking for a case like that. The only one I readily found was Payne v. State, 562 So. 2d 372
  9. #9
    justalayman is offline Senior Member
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    Quote Originally Posted by AlexB18 View Post
    Thanks... I've been looking for a case like that. The only one I readily found was Payne v. State, 562 So. 2d 372
    I guess I'm not a bad shot when shooting from the hip, eh?
  10. #10
    AlexB18 is offline Member
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    Quote Originally Posted by justalayman View Post
    I guess I'm not a bad shot when shooting from the hip, eh?
    No... but I wanted some caselaw! That settles the intercept part. The other 2 parts is if it's implied consent and did she have a reasonable expectation of privacy after (1) she was warned and continued to talk (2) she was in my apartment (3) I usually have a roommate/gf there (4) she was admitting to trying to destroy me for her own koo-koo self interest.

    I also have multiple witnesses that have written statements attesting to similar admissions on her part... I'm more worried about using this for my defense against her nutjob allegations than against her... however, I don't want the school lawyers one-upping me in bad faith by giving that to a prosecutor.
  11. #11
    justalayman is offline Senior Member
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    Quote Originally Posted by AlexB18 View Post
    No... but I wanted some caselaw! That settles the intercept part. The other 2 parts is if it's implied consent and did she have a reasonable expectation of privacy after (1) she was warned and continued to talk (2) she was in my apartment (3) I usually have a roommate/gf there (4) she was admitting to trying to destroy me for her own koo-koo self interest.

    I also have multiple witnesses that have written statements attesting to similar admissions on her part... I'm more worried about using this for my defense against her nutjob allegations than against her... however, I don't want the school lawyers one-upping me in bad faith by giving that to a prosecutor.
    you have an argument she consented. The problem, which I addressed early on is, if she refutes having heard your statement, a court could rule that she either didn't hear your statement or that the recording was altered. Without some response by her, you will have to prove is was reasonable to believe she did hear and gave tacit approval by continuing.

    a person has a reasonable expectation of privacy while in a private residence. Unless she spoke so loudly one would be able to hear her outside or in a known occupied room, she can claim she understood there was nobody else listening ergo; the conversation was private.

    .

    I doubt you can get beyond the expectation of privacy requirement so that leaves the tacit approval. I suspect it would be something one would have to hear to be able to judge along with her response to your claim you alerted her to the fact you were recording.

    One thing against you: most people do not record conversations as a matter of course. If a court would view your situation from that perspective, it will be more difficult to convince them the other person gave their approval for the recording.
  12. #12
    AlexB18 is offline Member
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    Ugh... all I want to do is to show that this person's nuts and already admitted to lying about this. Is there no other option in using this?? I feel like they're protecting the criminals in this case.
  13. #13
    AlexB18 is offline Member
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    On another note... are there actually any 934.03 convictions out there!? I'm failing to see how they could prosecute with a recording like this... what could possibly establish probable cause? A complaint with no evidence or evidence that's ambiguous?
  14. #14
    A#1Headache is offline Junior Member
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    oral communications

    To Alex B18 points to ponder from A#1Headache

    #1) Does your roommate have access to the place at any time. does the room mate have a key to the place. If your roommate could hear the conversation of you and this other person without aid of special equipment.If the answer to those questions are yes then there is no expectation of privacy.
    #2) If the lady in question admitted to giving known false information to any state or federal goverment agent then recording her statements was legal.
    #3) The constitution states that you can collect evidence in your favior as long as the collection of evidence or witnesses is legal.see mr sixth admendment mayhem. and avoid prison time like mr. purgery.
    #4) If a person admits to you about filing false statements about you to the police and you record the statements and or have witnesses in your favior file the statements with the police and the court. You can always file the witness statements as part of a information report with the police.
    #5) due to the conditions of the definition of oral communications in Fl Stat 934.02 (2) the reasonable expectation of privacy must be met inorder to receive protection in florida.
    #6) as for the recordings if they will keep you from hot water then use them.
    #7) You can also talk to the local polica about filing stalking charges and theft of personal property. Those recordings are yours and she had no right to steal your property your phone and try to destroy possable evidence of a crime. Talk to a lawyer about it or if you have already been charged with any type of crime then talk with your defence attorney.
    #8) If she has admitted to filing false statements and you have proof that she did file false statements then you have very big evidence in your favior. You now have evidence that might be used in a civil slander case.
    #9) the 26 Aug 2011 Glik case showed that just displaying a phone was enough to warn police that the recording was not private but announced. It appears that you announced recording in a place that could be invaded at any time by your room mate or any of the roommate's guests. check out katz v. us (1967) , us v. longoria (1999), I will try to check back on this post from time to time so leave any questions for me on the thread.
    #10) If the school is funded by the state or federally funded you have rights. so if the school tries to harass you about these false claims then inform the dean that you have recorded evidence of the lady falsifying statements and you will seek an attorney to assist you. make it very clear that if the school tries anything to violate your rights including due process that they will be sued. If the school is trying to harass you about this get an attorney and immeatly file suit. also - you have the right to file a nocontact restraining order on the lady in question - the other school staff that keep harassing you - if they are state employees then it is also a mater of your rights being violated and harassment by state employees can be complained about to the state and federal agencies, if she has already tried to falsly restrain you then file a complaint with the FBI, state workers at no point and tome do you talk to a state employee without recording the conversation and warn them that all contact with you is conditional to consenting to all communications being recorded. dont be afraid to use your exculpatory evidence to protect yourself.
    Enjoy the reading and hope things work out for you.
    Last edited by A#1Headache; 11-29-2011 at 02:01 PM.
  15. #15
    swalsh411 is offline Senior Member
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    Why in the world would you continue to associate with this person?

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