Recording of calls with police officers does not violate Florida’s wiretapping law

By: Nicole Deese Newlon, Esq.

In the case of Waite v. State of Florida, Case No. 5D23-1354, the Fifth District Court of Appeal provided a clear and definitive ruling. It determined that the plaintiff did not violate Florida’s wiretapping law when he recorded a conversation with a police sergeant. The court’s reasoning was straightforward: “there is no dispute that all conversations concerned matters of public business, occurred while the deputies were on duty, and involved phones utilized for work purposes.” 
 
It is critical to understand Florida’s wiretapping statute to grasp the significance of this ruling. Florida is a two-party consent state, meaning that all parties involved in private conversations must consent to the recorded conversation. This is different from one-party consent states, where private conversations may be recorded as long as one of the involved parties consents.
 
According to Florida law, it is illegal for anyone to intentionally intercept or attempt to intercept any wire, oral, or electronic communication. The speaker must have an expectation of privacy, and society must consider that expectation reasonable. Violating the two-party consent rule in Florida can result in severe criminal penalties, including imprisonment and fines.
 
Any audio or video recording method, such as recording on a phone or using a hidden camera, can be considered “recording” under state law. “Private conversations” refer to conversations in a location where there is a reasonable expectation of privacy, such as a private residence, hotel room, or office.
 
The Waite court recognized that the question of whether people can record telephone conversations with police officers acting in their official capacities was a first impression issue. However, the court acknowledged that people have a right to record police officers conducting their official duties in public. In conclusion, the court determined that the plaintiff did not violate Florida law by recording the call with the police officer, who was acting in an official capacity, just as if he had the conversation face-to-face.