                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                                 IN THE DISTRICT COURT OF APPEAL
                                                 OF FLORIDA
                                                 SECOND DISTRICT



JOSEPH E. ABDO,                                  )
                                                 )
               Petitioner,                       )
                                                 )
v.                                               )       Case No. 2D13-5644
                                                 )
STATE OF FLORIDA,                                )
                                                 )
               Respondent.                       )
                                                 )

Opinion filed August 1, 2014.

Petition for Writ of Certiorari to the Circuit
Court for Hillsborough County; Lisa D.
Campbell, Judge.

Lee Segal of Segal & Schuh Law Group,
P.L., Clearwater, for Petitioner.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan D. Dunlevy,
Assistant Attorney General, Tampa, for
Respondent.


CASANUEVA, Judge.

               Joseph E. Abdo petitions for a writ of certiorari seeking review of an order

denying his emergency motion for protective order. Mr. Abdo's motion for protective

order sought to expunge a video and voice recording of Mr. Abdo, which the State

seeks to use as evidence in criminal cases to which Mr. Abdo is not a party. Mr. Abdo
argues the recording was taken without his knowledge or consent and thus is subject to

exclusion pursuant to chapter 934, Florida Statutes (2013). After hearing argument of

counsel and viewing the video, the trial court concluded that the recorded

communication was not subject to exclusion pursuant to chapter 934. For the reasons

stated below, we grant Mr. Abdo's petition, quash the order of the trial court, and

remand for an evidentiary hearing.

                    To obtain relief by certiorari, the petitioner must establish "both

irreparable harm, further defined as a material injury that cannot be remedied on

plenary review, and a departure from the essential requirements of the law." Allstate

Ins. Co. v. Total Rehab & Med. Ctrs., Inc., 123 So. 3d 1162, 1163 (Fla. 4th DCA 2013).

The trial court's order in this case meets the irreparable harm prong of our analysis, as it

would make available to the public the recording Mr. Abdo seeks to protect as private

pursuant to chapter 934, and the harm could not be remedied on appeal due to Mr.

Abdo's nonparty status. See Dep't of Corr. v. Grubbs, 884 So. 2d 1147, 1147 (Fla. 2d

DCA 2004) (stating petitioner's nonparty status in criminal proceedings left it with no

adequate remedy by direct appeal); Armor Corr. Health Servs., Inc. v. Ault, 942 So. 2d

976, 977 (Fla. 4th DCA 2006) ("Because Armor is not a party to the criminal case, a

direct appeal in that case will not provide it with relief."); Fla. Dep't of Health &

Rehabilitative Servs. v. Myers, 675 So. 2d 700, 701 (Fla. 4th DCA 1996) (determining

that petitioner, a nonparty to the action, lacked an adequate remedy by direct appeal

after final judgment). Absent review via petition for writ of certiorari, Mr. Abdo would be

left with no adequate remedy on appeal and would be denied the safeguards provided

for in chapter 934. Cf. McDade v. State, 114 So. 3d 465, 469-71 (Fla. 2d DCA 2013)




                                              -2-
(reviewing, on direct appeal by defendant, whether recording should have been

suppressed pursuant to chapter 934).

             Next, we must determine whether the trial court's order departs from the

essential requirements of law under chapter 934. The stated legislative purpose of

chapter 934 is "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." § 934.01(2).

             "Oral communication" is defined as "any oral communication uttered by a

person exhibiting an expectation that such communication is not subject to interception

under circumstances justifying such expectation . . . ." § 934.02(2). Protection under

chapter 934 requires not only a subjective expectation of privacy, but the expectation

must also be reasonable in order for the communication to be protected. State v.

Inciarrano, 473 So. 2d 1272, 1275 (Fla. 1985).

              Significant factors used in determining the reasonableness of the utterer's

expectation of privacy in a conversation include "the manner in which the oral

communication is made and the kind of communication," and "the location in which the

conversation or communication occurs." Stevenson v. State, 667 So. 2d 410, 412 (Fla.

1st DCA 1996). Thus, " '[c]onversations occurring inside an enclosed area or in a

secluded area are more likely to be protected under section 934.02(2).' " Id. at 412

(quoting Cinci v. State, 642 So. 2d 572, 573 (Fla. 4th DCA 1994) (finding no reasonable

expectation of privacy where conversation occurred in an apartment building




                                          -3-
courtyard)); see also Chandler v. State, 366 So. 2d 64, 70 (Fla. 3d DCA 1978) (finding

no reasonable expectation of privacy in open-air conversations held over walkie-talkies).

             In Stevenson, 667 So. 2d 410, the Fourth District determined a statement

did not qualify as oral communication where a defendant's conversation was overheard

by the police using bionic ears. Stevenson, while sitting in his van, spoke through an

open window to two men standing on a public street. The men were conducting a drug

deal with Stevenson. The court noted that "the parties took no action to ensure privacy

for their conversation—they met on a public street and did not attempt to enter the van

to converse." Id. at 412. The court went on to conclude that the claimed expectation of

privacy is not one that society would recognize as reasonable. Id. at 413.

             In this case, Mr. Abdo argues that the video and voice recording, taken

while he was a passenger in his own vehicle, was taken without his knowledge or

consent under circumstances in which he had an expectation of privacy and thus should

be protected under chapter 934. Significantly, there was no testimony provided at the

hearing on Mr. Abdo's motion for protective order. After argument of counsel, the trial

court took the matter under consideration and apparently later viewed the recording.

             Based upon a review of the recording, the trial court found the

communication was made in a moving vehicle in broad daylight while travelling down

public roads, and the recording was less than forty-two seconds long. The trial court

found it was unclear how many people were in the vehicle, whether Mr. Abdo was

aware of the recording, who recorded the video, and what was said on the recording.

The trial court then found the communication in question "was not made 'exhibiting an

expectation that such communication is not subject to interception under circumstances




                                          -4-
justifying such expectation.' " The court concluded that the communication in question

is not subject to exclusion under chapter 934.

              The trial court departed from the essential requirements of law by reaching

such a conclusion based only upon its review of the video where the communication

was made by Mr. Abdo in an enclosed vehicle, which was owned by him, while the

vehicle was in motion. Furthermore, Mr. Abdo is not a party to the criminal cases in

which the State seeks to introduce the recording as evidence, and there is no allegation

that Mr. Abdo was a participant in criminal activity, a factor relied on in Stevenson and

Inciarrano to conclude the statements were not protected.

              Under the known circumstances in this case, there was insufficient

evidence for the court to conclude that the communication lacked a reasonable

expectation of privacy and was thus not subject to exclusion under chapter 934. The

order of the trial court is quashed, and the cause is remanded for an evidentiary hearing

on the motion for protective order.

              Petition granted; order quashed; remanded.




NORTHCUTT and WALLACE, JJ., Concur.




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