May 2002

I recently came across a legal opinion authored by an assistant state attorney from the West Palm Beach area. The opinion addressed the legality of law enforcement audio/videotaping all traffic stops without the citizen being aware of such recording.

As I read the opinion, I was surprised at the conclusion which basically said that law enforcement agencies that make it a habit to audio/videotape all traffic stops should notify the citizen prior to the taping that they are being recorded.

Having researched this issue many times in the past, I figured that there had been recent case law that addressed this issue so I took it upon myself to research this subject again. To my surprise, there had been no recent case law or statutory law changes that addressed this issue.

I then noticed that the opinion never cited case law, but was only an interpretation of the applicable Florida Statutes that deal with security of communications. The author of the opinion noted that FSS 934.03 makes it unlawful to audiotape an oral communication unless the conversation is taped pursuant to a criminal investigation.

As with many police departments in this area, especially traffic units, officers routinely audio/videotape all traffic stops, whether the stop was part of a criminal investigation or not. The author of the legal opinion suggested this was improper and law enforcement should not do this unless they inform the citizen prior to the recording that they are being taped.

Having thought this suggestion was ridiculous, I responded to an agency that approached me about the legal opinion and basically told them the opinion was way off base and didn’t address all the legal issues involved.

My response to the agency dealt with the misleading and improper interpretation of the FSS cited in the legal opinion. The legal opinion stated that FSS 934.03 controls this situation and says unless law enforcement is taping pursuant to a criminal investigation, the taping is unlawful. However, as I have seen with many of these legal opinions that are not supported with case law or any other recognized legal authority, the opinion failed to address that in order for 934.03 to be applicable, the citizen must have a reasonable expectation of privacy that his conversation would not be taped. The legal opinion failed to quote FSS 934.02 which states:

(2) "Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.

Because the legal opinion fails to address the definition of an oral communication, the analysis is flawed. Law enforcement would only have to advise the citizen that his communication is being taped only when there is a reasonable expectation of privacy. And courts have been very conservative in ruling what circumstances meet this burden. Some situations where courts have found no reasonable expectation of privacy in the law enforcement setting are: in the back seat of a police vehicle; in an interrogation room; in public; in a jail or prison.

Because a citizen has no reasonable expectation of privacy when being stopped by law enforcement for a traffic violation, the officer may audio/videotape the entire encounter without advising the citizen that they are being taped. Any other analysis of FSS and case law would be incorrect.