final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Okaloosa County. John T.
Dewrell, Shalimar, for Appellant.
Moody, Attorney General, and Tabitha Herrera, Assistant
Attorney General, Tallahassee, for Appellee.
Smiley appeals his judgment and sentence, asserting that the
trial court should have granted his motion to suppress
statements recorded on the victim's cell phone. He claims
that the statements should have been excluded under
Florida's wiretap law because he had a reasonable
expectation of privacy in statements he made as a guest in
the victim's home, and his knowledge of the recording did
not defeat that expectation. We disagree and affirm.
victim is the mother of Smiley's two-year-old child. On
the day of the altercation, the victim invited Smiley into
her home. Smiley and the victim started arguing, and she
began recording the argument on her cell phone. In the video,
the victim positions the phone in front of Smiley's face.
Smiley questions her about the recording and tries to grab
the phone more than once. Smiley shoves the victim and
threatens to shoot her and their two-year-old child. The
victim asks Smiley to leave her home multiple times. In the
background, while Smiley and the victim argue, their child is
seen lying on the bed. The victim claimed that after the
recording ended, Smiley brandished a gun, so she grabbed the
child and fled the home to seek help.
was charged with aggravated assault by threat with a deadly
weapon and domestic violence battery. He moved to exclude the
cell-phone video recording, arguing that the victim illegally
recorded their conversation without his express or implied
consent in violation of Florida's wiretap law. The trial
court watched the video and concluded that Smiley knew he was
being recorded and therefore could not show that he had an
expectation of privacy in his statements. This timely appeal
court's ruling on a motion to suppress is "clothed
with a presumption of correctness and, as the reviewing
court, we must interpret the evidence and reasonable
inferences and deductions derived therefrom in a manner most
favorable to sustaining the trial court's ruling."
Brown v. State, 247 So.3d 86, 87 (Fla. 1st DCA 2018)
(quoting Murray v. State, 692 So.2d 157, 159 (Fla.
1997)). We therefore defer to the trial court's findings
of fact that are supported by competent, substantial evidence
and review de novo the application of the law to those facts.
State v. Dickey, 203 So.3d 958, 961 (Fla. 1st DCA
argues that his recorded statements were obtained in
violation of Florida's wiretap law, which provides that
with certain exceptions, it is unlawful to
"[i]ntentionally intercept[ ] . . . any wire, oral, or
electronic communication." § 934.03, Fla. Stat.
(2018). Unless all parties to the communication consent, or
the interception is otherwise authorized by law, an
interception made in violation of the wiretap law is
generally inadmissible as evidence in any trial or legal
proceeding. § 934.06, Fla. Stat. (2018). When a
communication has been unlawfully intercepted, the aggrieved
party may move to suppress the contents of the interception
or any evidence derived from it. See §§
934.06, 934.09(10)(a), Fla. Stat. (2018). A party moving to
suppress evidence obtained in violation of the wiretap law
must show that the communications are the type of
communications protected by the statutory exclusionary rule.
oral communications recorded without prior consent are
subject to exclusion under the wiretap law. "The statute
protects only those 'oral communications' uttered by
a person exhibiting an expectation of privacy under
circumstances reasonably justifying such an
expectation." State v. Inciarrano, 473
So.2d 1272, 1275 (Fla. 1985) (emphasis in original); see
also § 934.02(2), Fla. Stat. (2018) (defining
"oral communication" as "any oral
communication uttered by a person exhibiting an expectation
that such communication is not subject to
interception under circumstances justifying
such expectation" (emphasis added)). Thus, to support
suppression of a communication under the wiretap law, the
person who made the statement must show more than a
subjective expectation of privacy. Inciarrano, 473
So.2d at 1275. They must show that they have a
reasonable expectation of privacy under the
circumstances, which "depends on one's actual
subjective expectation of privacy as well as whether
society is prepared to recognize that expectation as
reasonable." Id. (emphasis in original).
To exclude the statements at issue here, Smiley needed to
show that he had a subjective expectation of privacy in his
statements and that his expectation is one society would
accept as reasonable.
argues that he had a reasonable expectation of privacy
because he did not give the victim consent to record him with
her cell phone and because his statements were made in the
privacy of the victim's home, a place he frequently
stayed. These arguments fail because competent, substantial
evidence supports the trial court's finding that Smiley
did not have a subjective expectation of privacy in his
statements when he saw the cell phone in the victim's
hand and knew that he was being recorded. The cell phone
recording shows Smiley trying to snatch the phone from the
victim's hand, and Smiley is heard making statements
suggesting that he knew that he was being recorded. Cf.
McDade v. State, 154 So.3d 292, 298 (Fla. 2014) (finding
a subjective expectation of privacy in statements when the
recording device was hidden in victim's shirt);
LaPorte v. State, 512 So.2d 984, 986 (Fla. 2d DCA
1987) (finding a subjective expectation of privacy in
models' statements because although they expected to be
video-recorded in different types of clothing, they did not
expect to be video-recorded during various stages of
undress). Because the facts support a finding that Smiley
knew he was being recorded, Smiley failed to show that he had
a subjective expectation that his statements were "not
subject to interception."
even if Smiley did have a subjective expectation that his
statements made in the victim's home were private, his
statements would not qualify as "oral
communications" protected under the wiretap law because
any expectation of privacy under the circumstances of this
case is not one society recognizes as reasonable. Although
society generally recognizes as reasonable an expectation of
privacy in conversations conducted in a private home,
Jatar v. Lamaletto, 758 So.2d 1167, 1169 (Fla. 3d
DCA 2000), the reasonableness of that expectation presupposes
that the speaker has permission to be there in the first
place. That Smiley had frequently stayed at the victim's
home does not automatically render reasonable his purported
expectation of privacy on the day of the altercation. This is
because on that day, while Smiley may have been invited to
the victim's home as a guest initially, during the
argument the victim demanded that Smiley get out of her house
no less than nine times. At that point, Smiley's
expectation of privacy, if any, was no longer reasonable ...