State v. Caraballo

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE OF FLORIDA, )
)
Appellant, )
)
v. ) Case No. 2D15-1518
)
DAYLEN CARABALLO, )
)
Appellee. )
)
Opinion filed March 9, 2016.
Appeal from the Circuit Court for
Hillsborough County; William Fuente, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Elba C. Martin-
Schomaker, Assistant Attorney General,
Tampa, for Appellant.
Frank Louderback, St. Petersburg, for
Appellee.
CASANUEVA, Judge.
The State appeals an order granting Daylen Caraballo's motion to
suppress recorded statements that Ms. Caraballo made to her employer. Ms. Caraballo
was charged with grand theft for allegedly taking money from her employer and the
recorded statements apparently contain admissions made by Ms. Caraballo. The trial
court ruled that the statements were inadmissible because the recording violated
section 934.06, Florida Statutes (2013), which prohibits the recording of oral
communications without a person's consent or knowledge and the disclosing of such
recordings. We conclude that the trial court erred in granting the motion to suppress
and reverse.
Section 934.06 states that "[w]henever any wire or oral communication
has been intercepted, no part of the contents of such communication and no evidence
derived therefrom may be received in evidence in any trial . . . , if the disclosure of that
information would be in violation of this chapter." Section 934.02(2) defines 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 and does not mean any public oral communication uttered at
a public meeting or any electronic communication." The Florida Supreme Court has
held that "for an oral conversation to be protected under section 934.03 the speaker
must have an actual subjective expectation of privacy, along with a societal recognition
that the expectation is reasonable." State v. Smith, 641 So. 2d 849, 852 (Fla. 1994)
(citing State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985)). In determining whether the
speaker's expectation of privacy is reasonable, courts should examine the location of
the conversation, the type of communication at issue, and the manner in which the
communication was made. Abdo v. State, 144 So. 3d 594, 596 (Fla. 2d DCA 2014)
(citing Stevenson v. State, 667 So. 2d 410, 412 (Fla. 1st DCA 1996)). We conclude that
Ms. Caraballo did not have a reasonable expectation that her statements could not be
intercepted.
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Ms. Caraballo worked at a cellular telephone store and her employer
suspected that she was taking money from the store. Ms. Caraballo's employer spoke
with her about the missing funds and the conversation was recorded by a camera
located in the front reception area of the store, which is a sales area. There are several
cameras in the store and they operate twenty-four hours a day. The cameras are
located in obvious places, are not hidden in any manner, and have a light that flashes
when they detect activity. Ms. Caraballo was seated in the sales area of the store at a
counter where customers would approach and do business. The conversation took
place between 9 a.m. and 10 a.m., when the business was open to the public, and the
front door of the store was open. Ms. Caraballo testified that she knew there were video
cameras in the store. Further, there is a sign at the front of the store stating, "Notice.
This business is under 24-hour video and audio surveillance."
The present case is similar to Jatar v. Lamaletto, 758 So. 2d 1167, 1168
(Fla. 3d DCA 2000), where an employee alleged that the recording of his statements
during a meeting with his employer violated section 934.10. The statements were made
in the employer's office at a business in which the employer was a part-owner. Id. The
Third District held that the employee did not have a reasonable expectation of privacy in
the statements:
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.
Id. at 1169; see also Avrich v. State, 936 So. 2d 739, 742 (Fla. 3d DCA 2006) ("Florida
courts have consistently held that the constitutional protections of a reasonable
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expectation of privacy do not extend to an individual's place of business."). Similarly in
State v. Inciarrano, 473 So. 2d 1272, 1275 (Fla. 1985), the Florida Supreme Court held
that to prevail under section 934.06, a person must establish that he not only had a
subjective expectation of privacy, "but also his expectation under the circumstances
must have been one that society is prepared to recognize as reasonable."
The trial court found that the test or consideration regarding whether the
circumstances justify a "reasonable expectation of privacy" or "one that society is
prepared to recognize as reasonable" was vitiated by McDade v. State, 154 So. 3d 292(Fla. 2014). We disagree. The McDade court held that Inciarrano did not proscribe a
general rule that statements "associated with criminal activity are by virtue of that
association necessarily uttered in circumstances that make unjustified any expectation
that the utterances will not be intercepted." 154 So. 3d at 299.
The McDade court discussed why the other facts in Inciarrano supported
the conclusion that Inciarrano's statements were admissible. Id. at 298. The court
noted that the recording was made in the victim's place of business, which was a
"quasi-public" premises, it noted "the physical proximity and accessibility of the
premises to bystanders," and it noted that there was a microphone visible to the
unaided eye. Id. (quoting Inciarrano, 473 So. 2d at 1274). On the other hand, in
McDade, 154 So. 3d at 298-99, the court found that the recording in that case was
inadmissible where it was made in the appellant's bedroom, the recording contained
conversations between the appellant and his stepdaughter, and the recording device
was hidden under the victim's shirt.
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In the present case, the conversation occurred at a sales counter in an
area that was open to the public, not in a private office, and the business was open to
the public at the time the recording was made. Further, there was a sign at the front of
the store notifying everyone who entered that the business had constant video and
audio surveillance. The cameras inside the store were in visible locations, and Ms.
Caraballo admitted she was aware of the cameras.
We conclude that the circumstances surrounding Ms. Caraballo's
statements did not justify any expectation she may have had that such statements were
private and not subject to interception. See § 934.02(2). Accordingly, we reverse the
order granting Ms. Caraballo's motion to suppress and remand this case for further
proceedings consistent with this opinion.
Reversed and remanded.
VILLANTI, C.J., and MORRIS, J., Concur.
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