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 鈥� involving a citizen who accused the Citrus County Sheriff's Office of misconduct 鈥� 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 last week, the Fifth District Court of Appeal in Daytona Beach threw out five felony wiretapping convictions against Michael 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 鈥� accompanied by deputies holding rifles 鈥� sprayed herbicides in a canal off the Withlacoochee River along Waite鈥檚 property in west-central Florida.
鈥淭he sheriff jumped on the airboat, trespassed onto my private property and pointed assault rifles at me as they ripped up and stole my 鈥楴o Trespassing鈥� signs,鈥� Waite said in an interview. He called the court鈥檚 decision groundbreaking: 鈥淚 think a lot of people are going to be citing my case in the future,鈥� he said.
Sheriff鈥檚 deputies said Waite aimed a rifle at the officials spraying the herbicides.
鈥淭he 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,鈥� deputy Ryan Glaze testified in the case. Glaze said Waite had 鈥渟overeign citizen ideologies,鈥� referring to the anti-government movement whose followers believe that courts have no jurisdiction over them.
Waite disputed that he was a sovereign citizen. 鈥淭otally false,鈥� he said. 鈥淭he only time I ever used the word 鈥榮overeign鈥� was to claim my private property is not state sovereignty land.鈥�
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 鈥� 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鈥檚 employees.
鈥淭his really broadens up the public鈥檚 ability to hold police officers accountable for their actions. They have no expectation of privacy when they鈥檙e conducting official business and it doesn鈥檛 matter where they鈥檙e at."Michael Leroy Waite
The appeals court on Friday overturned the trial judge鈥檚 decision and ordered the judge to dismiss the wiretapping charges.
鈥淯nder these circumstances, it cannot be said that any of the deputies exhibited a reasonable expectation of privacy that society is willing to recognize,鈥� the court said.
The sheriff鈥檚 office on Monday declined to make Citrus County Sheriff Mike Prendergast available to discuss the matter.
It wasn't clear whether the court鈥檚 decision affects secretly recording the telephone conversations of other government employees in Florida conducting official business. It said Waite鈥檚 recording was allowed because there was 鈥渘o dispute that all conversations concerned matters of public business, occurred while the deputies were on duty, and involved phones utilized for work purposes.鈥�
鈥淭his really broadens up the public鈥檚 ability to hold police officers accountable for their actions,鈥� Waite said. 鈥淭hey have no expectation of privacy when they鈥檙e conducting official business and it doesn鈥檛 matter where they鈥檙e at.鈥�
The same day as the court鈥檚 ruling, DeSantis signed into law two bills affecting law enforcement in Florida. Two judges on the panel that issued the ruling Friday were DeSantis appointees.
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鈥檛 prevent people from recording law enforcement but can require them to move 25 feet back, which can make it more difficult.
The requires that citizen review boards in Florida 鈥� intended to provide independent oversight of law enforcement actions 鈥� 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.
鈥淎s soon as I grabbed his arms to put him under arrest, to put them behind his back, that鈥檚 when I catch an elbow to my face, to my lower right jaw,鈥� 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鈥� probation. He had faced up to 25 years in prison and fines of $25,000.
鈥淲aite did not demonstrate a lack of good faith and should have complied without resorting to violence,鈥� the judges said.
The court ruling Friday also was silent on the issue of whether the sheriff committed any misconduct: 鈥淲e in no way suggest the CCSO committed police misconduct,鈥� the ruling said. 鈥淩ather, this was how Waite perceived the situation.鈥�
Waite said his case will help the public hold law enforcement accountable and prevent officer misconduct.
鈥淏ringing these subjects to lay helps us maintain a civil society and civil government to be accountable for their actions,鈥� Waite said. 鈥淭he public, we just try to enjoy our property without people coming on trespassing and destroying it.鈥�
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 vivienneserret@ufl.edu. You can donate to support our students .
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