Fla. Stat. § 934.03 prohibits the interception of any oral communication as that term is defined by Section § 934.01(2), consisting of “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . . .”* A party which wrongfully intercepts an oral communication is prohibited from using the contents as evidence “in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision.”* Fla. Stat. § 934.06.
To be protected under § 934.03, an oral communication must satisfy two conditions:* “one’s actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable.”* State v. Inciarrano, 473 So. 2d 1272, 1275 (Fla. 1985).* The analysis of this definition of oral communication is substantially the same test used in a Fourth Amendment right to privacy analysis.* Stevenson v. State, 667 So.2d 410, 412 (Fla. 1st DCA 1996).* A significant factor used in determining the reasonableness of the party’s expectation of privacy in a conversation is the location in which the conversation or communication occurs.”* Id.* “‘Conversations occurring inside an enclosed area or in a secluded area are more likely to be protected under section 934.02(2).’”* Id.* (quoting Cinci v. State, 642 So. 2d 572, 573 (Fla. Dist. Ct. App. 1994)).* Under Florida law, public places are not necessarily excluded from the statute, except when the public place is a public meeting.* See Brandin v. State, 669 So.2d 280, 281 (Fla. Dist. Ct. App. 1996) (“We cannot agree with the state's assertion that conversations occurring in public areas can never be made with an expectation of privacy. Common experience teaches that the opposite may often be true.”).* In addition to location, “other significant factors used in determining the reasonableness of a party’s expectation of privacy are the manner in which the oral communication is made and the kind of communication.”* Stevenson, 667 So.2d at 412; Migut v. Flynn, 04-16459, 2005 U.S. App. LEXIS 8568, *14-*15 (11th Cir. (Fla.) May 13, 2005).
*
However in Molodecki v. Robertson Display, Inc., 2002 U.S. Dist. LEXIS 28309 (M.D. Fla. 2002), the Court held that where the Plaintiff recorded a conversation between himself, his boss, and some of Defendant’s other employees at the business office, there was no reasonable expectation of privacy and thus the tape recorded conversation did not violate Florida law. As the Court stated in Jatar v. Lamaletto, 758 So.2d 1167, 1169 (Fla. Dist. Ct. App. 3d DCA 2000), “Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office. The reasonable expectation of privacy fails where, as here, the intent of the speaker does not justify such an expectation.”
