           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                         No. 1D18-1792
                 _____________________________

COREY SMILEY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.

                         August 16, 2019


ROWE, J.

     Corey Smiley appeals his judgment and sentence, asserting
that the trial court should have granted his motion to suppress
statements recorded on the victim’s cell phone. He claims that the
statements should have been excluded under Florida’s wiretap law
because he had a reasonable expectation of privacy in statements
he made as a guest in the victim’s home, and his knowledge of the
recording did not defeat that expectation. We disagree and affirm.

     The victim is the mother of Smiley’s two-year-old child. On
the day of the altercation, the victim invited Smiley into her home.
Smiley and the victim started arguing, and she began recording
the argument on her cell phone. In the video, the victim positions
the phone in front of Smiley’s face. Smiley questions her about the
recording and tries to grab the phone more than once. Smiley
shoves the victim and threatens to shoot her and their two-year-
old child. The victim asks Smiley to leave her home multiple times.
In the background, while Smiley and the victim argue, their child
is seen lying on the bed. The victim claimed that after the
recording ended, Smiley brandished a gun, so she grabbed the
child and fled the home to seek help.

     Smiley was charged with aggravated assault by threat with a
deadly weapon and domestic violence battery. He moved to
exclude the cell-phone video recording, arguing that the victim
illegally recorded their conversation without his express or implied
consent in violation of Florida’s wiretap law. The trial court
watched the video and concluded that Smiley knew he was being
recorded and therefore could not show that he had an expectation
of privacy in his statements. This timely appeal follows.

                              Analysis

     A trial court’s ruling on a motion to suppress is “clothed with
a presumption of correctness and, as the reviewing court, we must
interpret the evidence and reasonable inferences and deductions
derived therefrom in a manner most favorable to sustaining the
trial court’s ruling.” Brown v. State, 247 So. 3d 86, 87 (Fla. 1st
DCA 2018) (quoting Murray v. State, 692 So. 2d 157, 159 (Fla.
1997)). We therefore defer to the trial court’s findings of fact that
are supported by competent, substantial evidence and review de
novo the application of the law to those facts. State v. Dickey, 203
So. 3d 958, 961 (Fla. 1st DCA 2016).

     Smiley argues that his recorded statements were obtained in
violation of Florida’s wiretap law, which provides that with certain
exceptions, it is unlawful to “[i]ntentionally intercept[ ] . . . any
wire, oral, or electronic communication.” § 934.03, Fla. Stat.
(2018). Unless all parties to the communication consent, or the
interception is otherwise authorized by law, an interception made
in violation of the wiretap law is generally inadmissible as
evidence in any trial or legal proceeding. § 934.06, Fla. Stat.
(2018). When a communication has been unlawfully intercepted,
the aggrieved party may move to suppress the contents of the
interception or any evidence derived from it. See §§ 934.06,

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934.09(10)(a), Fla. Stat. (2018). A party moving to suppress
evidence obtained in violation of the wiretap law must show that
the communications are the type of communications protected by
the statutory exclusionary rule.

     Not all oral communications recorded without prior consent
are subject to exclusion under the wiretap law. “The statute
protects only those ‘oral communications’ uttered by a person
exhibiting an expectation of privacy under circumstances
reasonably justifying such an expectation.” State v. Inciarrano, 473
So. 2d 1272, 1275 (Fla. 1985) (emphasis in original); see also §
934.02(2), Fla. Stat. (2018) (defining “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” (emphasis added)).
Thus, to support suppression of a communication under the
wiretap law, the person who made the statement must show more
than a subjective expectation of privacy. Inciarrano, 473 So. 2d at
1275. They must show that they have a reasonable expectation of
privacy under the circumstances, which “depends on one’s actual
subjective expectation of privacy as well as whether society is
prepared to recognize that expectation as reasonable.” Id.
(emphasis in original). To exclude the statements at issue here,
Smiley needed to show that he had a subjective expectation of
privacy in his statements and that his expectation is one society
would accept as reasonable.

     Smiley argues that he had a reasonable expectation of privacy
because he did not give the victim consent to record him with her
cell phone and because his statements were made in the privacy of
the victim’s home, a place he frequently stayed. These arguments
fail because competent, substantial evidence supports the trial
court’s finding that Smiley did not have a subjective expectation of
privacy in his statements when he saw the cell phone in the
victim’s hand and knew that he was being recorded. The cell phone
recording shows Smiley trying to snatch the phone from the
victim’s hand, and Smiley is heard making statements suggesting
that he knew that he was being recorded. Cf. McDade v. State, 154
So. 3d 292, 298 (Fla. 2014) (finding a subjective expectation of
privacy in statements when the recording device was hidden in
victim’s shirt); LaPorte v. State, 512 So. 2d 984, 986 (Fla. 2d DCA

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1987) (finding a subjective expectation of privacy in models’
statements because although they expected to be video-recorded in
different types of clothing, they did not expect to be video-recorded
during various stages of undress). Because the facts support a
finding that Smiley knew he was being recorded, Smiley failed to
show that he had a subjective expectation that his statements were
“not subject to interception.”

     And even if Smiley did have a subjective expectation that his
statements made in the victim’s home were private, his statements
would not qualify as “oral communications” protected under the
wiretap law because any expectation of privacy under the
circumstances of this case is not one society recognizes as
reasonable. Although society generally recognizes as reasonable
an expectation of privacy in conversations conducted in a private
home, Jatar v. Lamaletto, 758 So. 2d 1167, 1169 (Fla. 3d DCA
2000), the reasonableness of that expectation presupposes that the
speaker has permission to be there in the first place. That Smiley
had frequently stayed at the victim’s home does not automatically
render reasonable his purported expectation of privacy on the day
of the altercation. This is because on that day, while Smiley may
have been invited to the victim’s home as a guest initially, during
the argument the victim demanded that Smiley get out of her
house no less than nine times. At that point, Smiley’s expectation
of privacy, if any, was no longer reasonable or justified. See, e.g.,
McDade, 154 So. 3d at 298 (explaining that the holding of
Inciarrano was “based on the view that a trespasser cannot have a
justified expectation that his utterances in the premises where he
trespasses are not subject to interception”).

     Because Smiley did not have a reasonable expectation of
privacy in statements he knew were being recorded and made after
the victim asked him repeatedly to get out of her house, his
statements were not “oral communications” subject to exclusion
under Florida’s wiretap law. Therefore, the trial court did not err
in denying the motion to suppress. We AFFIRM Smiley’s judgment
and sentence.

JAY and M.K. THOMAS, JJ., concur.



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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Dustin Dewrell, Shalimar, for Appellant.

Ashley Moody, Attorney General, and Tabitha Herrera, Assistant
Attorney General, Tallahassee, for Appellee.




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