Last Updated: November 25th, 2019 at 7:19 pm
Read Time: 6 Minutes
We've all seen YouTube videos where a law-abiding citizen with a camera is confronted by a police officer and told to turn off the camera. When that person refuses, the confrontation escalates with frightening speed. These encounters conjure up the obvious questions: An obvious, yet elusive question: "Can you record the police?"
Like many things, there is conflicting information on this, and no definitive answer to every situation. However, as a general rule, in public, you do have a right to photograph and film the police.
While in most cases, it is legal to videotape someone in Florida, it is not legal to record a conversation unless you have the consent of the person or persons involved in the conversation. Florida is what is known as a two-party consent state, which means that all parties involved must give their consent to be recorded or overheard.
Florida is one of twelve states that have this requirement. However, Florida has an expectation of privacy provision that courts have ruled does not apply to on-duty police officers who are engaged in police work in view of the general public. This means it is legal to openly record on-duty officers.
What Is the Florida Wiretapping Law?
According to Florida statute 934.03, it is a felony to make an audio recording of someone without their knowledge and consent. This is Florida's wiretapping law. It covers intercepting or recording a "wire, oral, or electronic communication" unless all parties involved in the communication consent.
However, Florida statute 924.02(2) allows a person to record public events where the person or persons being recorded do not have a reasonable expectation of privacy. In addition, Federal courts and Florida State courts ruled time and again that on-duty police officers doing their job in public do not have a reasonable expectation of privacy.
If you are looking for clarity, you are out of luck. Police officers have a statute that seems to justify a felony arrest. Yet, it can be argued that this lets you record an on-duty police officer in public, as long as you are not obstructing them in any way since the officer should not expect his actions to be private.
Is It Legal to Record Police during a Traffic Stop?
The right to record on-duty police officers is protected under the First Amendment in situations where the officers have no expectation of privacy and you are not interfering with their work in any way.
As mentioned above, it is legal to record on-duty police officers engaged in police work in Florida, so you can legally record them during a traffic stop. However, you should use common sense and follow a few basic rules. You should also be aware that you might be arrested, even though you are not doing anything illegal. And, if you've followed the rules, you will probably not be convicted of any criminal charges.
If you record the police during a traffic stop, they might harass you, confiscate your device, or even go so far as to arrest you on charges such as disorderly conduct, violation of wiretapping laws, or obstruction of justice. They cannot arrest and charge you for recording police officers, since it is not illegal to do so.
The police may consider being recorded as a challenge to their authority. A police officer who pulls you over may not be well-versed in wiretapping and recording laws and may try to prevent you from recording or videoing them even though you are doing nothing wrong or illegal.
If you are arrested and charged with disorderly conduct, violation of wiretapping laws, or obstruction of justice, the charges will most likely be dropped. It's highly unlikely that a prosecutor will be able to prove these charges beyond a reasonable doubt. The police officers just wanted to get you out of their way, and to do so, they had to charge you with something.
What to Do If You Record the Police
If you choose to record the police during a traffic stop, there are a few things you can do to minimize the chances of being arrested. Remain calm and non-threatening. If you are a bystander, stay at a distance where you won't be interfering with their work.
Use Caution While Recording Any Law Enforcement Activity
However, you should always be respectful when dealing with the police. They perform a dangerous job, and they often need to make snap decisions about possible threats. Tell them you are exercising your First Amendment Right to video record them. Let them know that if they think you are a threat, to tell you immediately so you can change any perceived behavior that makes them nervous, short of not exercising your right to record them.
Florida Statute Video Recording without Consent
While video voyeurism is a crime under Florida statute 810.145, videoing is generally legal in Florida. Illegal recordings include secretly recording someone in places where they would expect to be private, such as in a bedroom, changing room, hotel room, or bathroom. In Florida, video voyeurism is a second- or third-degree felony punishable by a fine up to $10,000, 10 years in prison, and the possibility of a civil suit for invasion of privacy.
Home Security Cameras Are Legal
It is not uncommon for Florida residents to install video recording equipment outside their home to monitor suspicious behavior. This is completely legal as long as no rules regarding video voyeurism are violated. It is recommended that cameras be installed so that they are visible and pointed to an area where people don't expect privacy.
Workplace Surveillance Is Legal
Employers are allowed to video their employees in the workplace as long as it is for legitimate reasons, such as theft prevention. Video voyeurism laws also apply, so employers must be careful not to put cameras in a place where staff could reasonably expect privacy. And, of course, putting video cameras in the bathrooms is a hard no.
A Note on Audio Recording in Videos
While the images in your video are protected by the First Amendment, the audio is a murkier area. Due to the wiretapping statute in Florida, they may try to cite you for the audio portion of your video and may try to take your device.
If this happens, stay calm and do not resist. Remind the officer that they need a warrant or a reasonable belief that there is evidence of criminal activity on your device in order to search it.
How Can a Criminal Defense Attorney Help You?
Most people are not comfortable when strangers take pictures, record, or video record them. Police officers are no different. Even though it is your First Amendment right to do so, on-duty police officers will probably feel uncomfortable when you record or video them.
At best, they will ignore you, at worst they may arrest and charge you for disorderly conduct, violation of wiretapping laws, or obstruction of justice. If you were charged with one of these offenses, and if you were legally recording the police when you were arrested, let a South Florida Criminal Defense Lawyer advocate for justice on your behalf. There is every reason to believe that the charge will be dropped after we have a chance to speak with the prosecutor and the judge.