Can Secret Recordings Be Used Against You?


The Florida Supreme Court ruled today that recordings made secretly by a crime victim cannot be introduced at trial. These recordings fall under Chapter 934, Florida Statutes, which prohibits “intercepting” (i.e. recording) a conversation where one party to the conversation has a reasonable expectation of privacy.

The Court’s decision comes from the conviction of Richard McDade for child sexual abuse. The victim, a minor, recorded the defendant pressuring her to have sex with him in the bedroom of their shared home. The recordings were presented at trial along with testimony from the victim and others. McDade was convicted and sentenced to life in prison. The Florida Supreme Court reversed McDade’s conviction and ordered a new trial without the recordings.

Let’s get this out of the way before we get into the nitty-gritty: if McDade is guilty of molestation, he needs to be in prison. But that’s not the point here – as I’ll explain the point is whether someone can use secret recordings made in your house against you in a trial simply because you were allegedly committing a crime.

The Second DCA’s Dangerous Interpretation of Privacy Expectations:

After his conviction, McDade appealed to the Second DCA arguing that the recordings made by the victim should not have been used against him at trial. The Second DCA affirmed his conviction, reasoning that

this case involves recordings made by a victim of the very criminal acts by which she was victimized. The minor victim recorded McDade soliciting her for sexual acts, as he had done for years. And though the conversation took place in McDade’s home, it was also the victim’s home. … [W]e conclude that any expectation of privacy McDade may have had is not one which society is prepared to accept as reasonable.

In other words, the Second DCA lessened the reasonableness of McDade’s expectation of privacy based on him allegedly being a child molester. In a concurring opinion, Judge Altenbernd explained the Second DCA’s reasoning more logically:

Under the “society is prepared to recognize” test, I conclude that in 2011 a person who regularly and consistently abused a teenager in a bedroom of their shared home had no reasonable expectation that their conversations about the abuse would never be recorded. In this modern digital world, any such adult should have expected that eventually a teenage victim would record such conversations in self-defense. Accordingly, I concur in this decision because Mr. McDade could not reasonably expect his statements to be protected oral communications.

Privacy Expectations Don’t Depend on Criminal Activity:

The Florida Supreme Court reversed this decision, holding that McDade did have a reasonable expectation of privacy in his own home, even though he was committing crimes there. This is the point of the Fourth Amendment – it is designed to protect you from unreasonable searches and seizures, even if you’re committing a crime. A different interpretation would allow the police to violate the fourth amendment with impunity as long as you were caught doing something wrong. Federal courts have held this way for a long time:

We may not justify the search after the fact, once we know illegal activity was afoot; the legitimate expectation of privacy does not depend on the nature of the defendant’s activities, whether innocent or criminal. . . . If this were the case, then the police could enter private homes without warrants, and if they find drugs, justify the search by citing the rule that society is not prepared to accept as reasonable an expectation of privacy in crack cocaine kept in private homes.

U.S. v. Pitts, 332 F.3d 449 (7th Cir. 2003).

Although Chapter 934 has multiple exceptions to the prohibition on recording conversations, there is no exception covering the victim of a crime. As the Florida Supreme Court correctly recognized, the decision to allow an exception would be up to the legislature and not the courts.

This case reverses what was a dangerous decision by the Second DCA that would have allowed the police to justify illegal searches after-the-fact. Let’s hope that if the legislature tries to change the language of Chapter 934 they do so with care.