Florida appeals court: Phone conversations with law enforcement can be recorded without their consent

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A Florida appeals court has effectively opened a loophole in the state’s long-standing law against recording telephone conversations without the permission of both sides of the call, ruling that law enforcement officers performing their official duties can be secretly recorded because they have no expectation of privacy.

The court’s decision — involving a citizen who accused the Citrus County Sheriff’s Office (CCSO) of misconduct — is the latest to provide new mechanisms for civilian oversight of law enforcement, even as others were curtailed in recent days by Gov. Ron DeSantis and the Republican-led Legislature.

In its ruling last week, the Fifth District Court of Appeal in Daytona Beach threw out five felony wiretapping convictions against Michael Leroy Waite, 63, of Floral City. Waite has been engaged in a lengthy dispute over access to his property with the Citrus County Sheriff’s Office as far back as 2018. The situation escalated after wildlife officers — accompanied by deputies holding rifles — sprayed herbicides in a canal off the Withlacoochee River along Waite’s property in west-central Florida.

“The Sheriff jumped on the airboat, trespassed onto my private property and pointed assault rifles at me as they ripped up and stole my ‘No Trespassing’ signs,” Waite said in an interview. He called the court’s decision groundbreaking: “I think a lot of people are going to be citing my case in the future,” he said.

Sheriff’s deputies said Waite aimed a rifle at the officials spraying the herbicides.

“The people out there doing the spraying for the herbicides for the county, they were in fear that this guy was going to do something, try to shoot them, try to kill them,” deputy Ryan Glaze testified in the case. Glaze said Waite had “sovereign citizen ideologies,” referring to the anti-government movement whose followers believe that courts have no jurisdiction over them.

Waite disputed that he was a sovereign citizen. “Totally false,” he said. “The only time I ever used the word ‘sovereign’ was to claim my private property is not state sovereignty land.”

In January 2021, Waite called 911 to report what he believed was a trespassing incident by the Sheriff and said he wanted to have the call recorded for a complaint against the Sheriff. That same day, Sergeant Edward Blair called Waite back — and Waite recorded the three-minute phone conversation but did not inform Blair he was doing so, the court said.

Waite emailed his recording of the call to the Sheriff’s Office records department and requested an internal investigation. A month later, Waite was accused of five counts of illegal wiretapping for recording the conversation with the sergeant and four other calls with Sheriff’s employees.

The appeals court on Friday overturned the trial Judge’s decision and ordered the Judge to dismiss the wiretapping charges.

“Under these circumstances, it cannot be said that any of the deputies exhibited a reasonable expectation of privacy that society is willing to recognize,” the court said.

The Sheriff’s Office on Monday declined to make Citrus County Sheriff Mike Prendergast available to discuss the matter.

It wasn’t clear whether the court’s decision affects secretly recording the telephone conversations of other government employees in Florida conducting official business. It said Waite’s recording was allowed because there was “no dispute that all conversations concerned matters of public business, occurred while the deputies were on duty, and involved phones utilized for work purposes.”

“This really broadens up the public’s ability to hold police officers accountable for their actions,” Waite said. “They have no expectation of privacy when they’re conducting official business and it doesn’t matter where they’re at.”

The same day as the court’s ruling, DeSantis signed two bills affecting law enforcement in Florida. Two Judges on the panel that issued the ruling Friday were DeSantis appointees.

One new law makes it illegal after a person has been warned to approach first responders or remain within 25 feet while they are performing a legal duty if the intent is to interfere, threaten or harass them. The new law doesn’t prevent people from recording law enforcement but can require them to move 25 feet back, which can make it more difficult.

The other requires that citizen review boards in Florida — intended to provide independent oversight of law enforcement actions — be re-established so that members are appointed by a Sheriff or Police Chief and that at least one member be a retired law enforcement officer.

Waite was separately convicted of battery on a law enforcement officer and resisting arrest with violence after he was accused of striking a deputy with his elbow when they arrived to arrest him on the wiretapping charges. Waite urged the appeals court to throw out those charges, too, but the Judges declined.

“As soon as I grabbed his arms to put him under arrest, to put them behind his back, that’s when I catch an elbow to my face, to my lower right jaw,” said Glaze, the deputy who arrested Waite. He said Waite surrendered after a detective shocked him with an electrical device.

The Judge sentenced Waite on all the charges to two years’ probation. He had faced up to 25 years in prison and fines of $25,000.

“Waite did not demonstrate a lack of good faith and should have complied without resorting to violence,” the Judges said.

The court ruling Friday also was silent on the issue of whether the Sheriff committed any misconduct: “We in no way suggest the CCSO committed police misconduct,” the ruling said. “Rather, this was how Waite perceived the situation.”

Waite said his case will help the public hold law enforcement accountable and prevent officer misconduct.

“Bringing these subjects to lay helps us maintain a civil society and civil government to be accountable for their actions,” Waite said. “The public, we just try to enjoy our property without people coming on trespassing and destroying it.”

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This story was produced by Fresh Take Florida, a news service covering business news from the University of Florida College of Journalism and Communications. The reporter can be reached at [email protected]. You can donate to support our students here.