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It Is A Crime In Florida For A Person To Tape A Conversation Unless All Parties Of The Conversation Consent

The recording of a telephone conversation is a crime in the State of Florida if the recording occurs without the knowledge of all parties to the conversation. Florida Statute $934.03 criminalizes what is the unlawful interception of a phone communication. Depending upon the circumstances of the interception, the penalties range from felonies to misdemeanors.

In the case of Mead v. State, 36 Fla. L. Weekly D617a (Fla. 4th DCA March 17, 2010), the Court was confronted with a prosecution for arson and burglary of a dwelling. The alleged victim received a phone call from a male acquaintance following the arson of her house. When the phone call was received, the State Fire Marshall investigating the arson, was present in the house and overheard the conversation with the victim and the soon to be defendant. In the phone call in which the Fire Marshall was present, the owner of the home asked the defendant why he had set her house on fire. The defendant responded that he wanted to tell her but could not talk to her over the phone because he did not know who might be listening.

After this phone call the Fire Marshall told the victim that if the individual called again that she should tape the phone call if she is able.

Several days later the defendant did call and the homeowner of the home recorded the conversation.

At trial the defense objected to the introduction of the tape recording. The issue was whether the Fire Marshall who is a Florida law enforcement officer had to be present during the telephone conversation or whether his statement to the home owner that she should record a phone call from the defendant if she is able, constituted compliance with Florida Statute $934.03(2)(c). This section of the statute provides that a person acting under the direction of a law enforcement officer may intercept a wire, oral or electronic communication, when the person authorized by the law enforcement officer is a party to the communication.

The Court of appeal rejected the defendant's argument that the phrase "under the direction" required more supervision than where a person is simply given permission by a law enforcement officer to tape record a call that might occur in the future.

The ability of Florida law enforcement officers to authorize individuals to tape record in furtherance of the law enforcement officer's criminal investigation duties is very broad and need not be formalized beyond verbal directions from the law enforcement officer.