Is it legal in Florida to record a police officer during a traffic stop on your cell phone?

Subject

Cell Phones -- Recording Law Enforcement Officers

Plain-English summary

The Sheriff of Bay County wrote the AG about a citizen who was stopped for a traffic offense, recorded the encounter with the officer on a cell phone without the officer's knowledge or permission, and later used the recording in traffic court. The sheriff wanted guidance on how Florida's recording laws applied. The AG declined to give a formal opinion because the matter was being litigated and the office does not comment on questions before the courts.

The AG did provide informal comments and enclosed materials. Florida's recording rules live in Chapter 934, which the Legislature enacted to protect personal privacy in oral and wire communications. Section 934.03(1) generally makes it unlawful to intercept an oral communication, but the protection applies only to an "oral communication" as defined in section 934.02(2): one uttered by a person who has a reasonable expectation that it is not being intercepted. The AG flagged a key fact in the sheriff's scenario: one of the parties to the communication, the citizen who made the recording, did consent to it.

The AG then pointed to Glik v. Cunniffe, the most widely cited case on the issue, which it enclosed along with a University of Florida Law Review comment. Glik is a federal appeals court decision that examined a wiretap statute similar to Florida's and held that filming or videotaping government officials, including police officers, performing their duties in a public place is protected by the First Amendment. Because Chapter 934 cases are criminal and fact-intensive, the AG advised the sheriff to take the materials to his department's legal counsel, coordinate with the State Attorney's office (which would handle any prosecution), and submit a specific legal question with a memorandum of law if a formal opinion later became necessary.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the AG say it's legal to record police in Florida?
The AG declined to give a formal answer because the matter was in litigation. It offered general comments and pointed to Glik v. Cunniffe, where filming police in public was held protected by the First Amendment, but stressed that Chapter 934 cases turn on their specific facts.

What does Florida's Chapter 934 protect?
It protects "oral communications" where the speaker has a reasonable expectation that the communication is not being intercepted. It generally bars intercepting such communications without consent, with statutory exceptions.

Why did the citizen's consent matter?
The AG noted that one party to the communication, the citizen who made the recording, consented to it. Consent of a party is significant under the wiretap framework, though the AG did not resolve how it applied to the litigated case.

What is Glik v. Cunniffe?
A federal appeals court decision the AG enclosed, holding that recording government officials, including police, performing their duties in public is protected by the First Amendment. It analyzed a wiretap statute similar to Florida's.

Background and statutory framework

Chapter 934 is Florida's wiretap and electronic-surveillance statute. Its legislative findings, in section 934.01(4) and related subsections, emphasize protecting the privacy of innocent persons and limiting nonconsensual interception to court-authorized situations involving specific serious offenses. Section 934.03(1) sets the general prohibition on intercepting wire or oral communications; section 934.02(2) supplies the reasonable-expectation-of-privacy definition of "oral communication"; and section 934.03(4) prescribes penalties, with prosecution by the state attorney for the circuit where the incident occurred. The statute also contains law enforcement exceptions, such as s. 934.03(2)(c) for officers who are a party to or have consent for an interception aimed at obtaining evidence of a crime.

The constitutional dimension comes from Glik v. Cunniffe, the federal decision the AG enclosed, which recognized a First Amendment right to record public officials performing their public duties. The AG also cited s. 16.01(3), the statute defining its own opinion authority, in explaining why it limited itself to informal comments here, alongside the litigation-deference policy.

Citations

• Chapter 934, Florida Statutes
• section 934.01(4), Florida Statutes
• Section 934.03(1), Florida Statutes
• section 934.02(2), Florida Statutes
• Section 934.03(4), Florida Statutes
• s. 16.01(3), Fla. Stat.
• s. 934.03(2)(c), Fla. Stat.
• Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/cell-phones-recording-law-enforcement-officers
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8094

Original opinion text

The Honorable Frank McKeithen

Sheriff of Bay County

3421 North Highway 77

Panama City, Florida 32405

Dear Sheriff McKeithen:

This office is in receipt of your letter of May 29, 2014, requesting assistance regarding a citizen who had been stopped by a law enforcement officer for a traffic offense. The citizen recorded his or her interaction with the law enforcement with a cell phone and without the knowledge or permission of the law enforcement officer. The recorded incident with the law enforcement officer was presented in traffic court to the traffic court judge.

After reviewing the information you have submitted, it does not appear that this is a matter upon which this office may formally comment at this time. I understand from your letter that this matter is being litigated and it is the policy of this office not to comment on matters before the judiciary.[1]

However, in an effort to assist you, I provide the following informal comments. It would be advisable for you to present the cases and material I am enclosing to the Sheriff's Department legal counsel for their consideration and assistance in determining future policy of your office and conduct of your officers. The Florida Sheriff's Association may also be of assistance in this matter. Ultimately, however, as cases prosecuted under Chapter 934, Florida Statutes, are criminal in nature, the facts of each case will be essential to a determination of how to proceed.

Your letter suggests that the fact situation you have posed relates to provisions of Chapter 934, Florida Statutes. Chapter 934, Florida Statutes, was enacted by the Florida Legislature in order to assure personal rights of privacy in oral and wire communications.[2] The legislative findings in section 934.01(4), Florida Statutes, reflect the Legislature's concern for protecting the privacy rights of the state's citizens. In enacting Chapter 934, the Legislature expressly undertook to "define the circumstances and conditions under which the interception of wire and oral communications may be authorized and to prohibit any unauthorized interception of such communications and the use of the contents thereof in evidence in courts and administrative proceedings."[3] In enacting Chapter 934, Florida Statutes, the Legislature stated that

"[t]o safeguard the privacy of innocent persons, the interception of wire or oral communications when none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court. Interception of wire and oral communications should further be limited to certain major types of offenses and specific categories of crime with assurance that the interception is justified and that the information obtained thereby will not be misused."[4] (e.s.)

I would note that, under the factual situation you have presented, one of the parties to the interception, the citizen who was the subject of the traffic stop and who did the recording, did consent to the interception.

Section 934.03(1), Florida Statutes, generally makes it unlawful to willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire or oral communication. "Oral communication" is defined by section 934.02(2), Florida Statutes, as

"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."

Section 934.03(4), Florida Statutes, prescribes penalties for violations of the statute and provides that any criminal action would be brought by the state attorney for the judicial circuit where the incident occurred.[5]

I am enclosing a University of Florida Law Review case comment which discusses the most widely cited court case considering these issues, Glik v. Cunniffe.[6] The Glik case is a Massachusetts case which considers not only that state's wiretap statute (which is similar to Florida's Chapter 934 provisions), but addresses federal constitutional First Amendment considerations. The court in Glik determined that filming or videotaping government officials who are engaged in their duties in a public place, including police officers performing their responsibilities, is protected by the First Amendment.

In addition to the law review article, I am enclosing a copy of the Glik case for your consideration and a number of other articles that present various views on your question. Again, I would suggest that you consult your legal counsel for a more definitive and fact specific response to your questions and, if you continue to have concerns in this regard following resolution of the litigation involved, this office will be glad to provide assistance. Because any prosecution of this type of case would fall to the State Attorney's Office, you may wish to coordinate your efforts with that office as well. If you determine that an Attorney General Opinion is necessary, we would request that you set forth a specific legal question and include a memorandum of law from your legal counsel touching on all points involved in your question and providing his or her legal opinion on the issue.

I trust that these informal comments and the material I am enclosing will be helpful.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

Enclosures

[1] See s. 16.01(3), Fla. Stat., and Department of Legal Affairs Statement Concerning Attorney General Opinions (available at www.myfloridalegal.com).

[2] See s. 934.01, Fla. Stat., reflecting the legislative findings for enactment of Ch. 934, Fla. Stat.

[3] Section 934.01(2), Fla. Stat.

[4] The Legislature also expressed its finding in s. 934.01(3), Fla. Stat., that "[o]rganized criminals make extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice." Toward that end, the Legislature has created certain exceptions for law enforcement agencies. See, e.g., s. 934.03(2)(c), Fla. Stat., stating that "[i]t is lawful under ss. 934.03 934.09 for an investigative or law enforcement officer or a person acting under the direction of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act."

[5] And see s. 934.10, Fla. Stat., prescribing civil remedies. See also s. 934.06, Fla. Stat., prohibiting the use of such intercepted wire or oral communications as evidence.

[6] 655 F.3d 78 (U.S. Ct. App. 1st Cir. 2011).