                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUIT
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                        ________________________              May 13, 2005
                                                          THOMAS K. KAHN
                              No. 04-16459                     CLERK
                          Non-Argument Calendar
                        ________________________

                    D. C. Docket No. 04-80086-CV-WPD


JEREMY MIGUT,
                                                Plaintiff-Appellant,

                                   versus

SEAN FLYNN, Sheriff,
Palm Beach County Sheriff’s Department,
BARRY KRISCHER,
State Attorney,
                                                Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                               (May 13, 2005)

Before ANDERSON, CARNES and HULL, Circuit Judges.

PER CURIAM:
       Plaintiff Jeremy Migut appeals the district court’s (1) order dismissing his

42 U.S.C. § 1983 false-arrest claim against Deputy Sheriff Sean Flynn based on

qualified immunity, and (2) subsequent order denying Migut’s summary judgment

motion and granting sua sponte summary judgment to Deputy Sheriff Flynn and

State Attorney Barry E. Krischer on Migut’s claim for a declaratory judgment.

Migut sought a declaratory judgment that tape-recording a police officer during a

traffic stop does not violate Fla. Stat. Ann. § 934.03, which prohibits the

intentional interception of certain communications. After review, we affirm.

                                     I. BACKGROUND

       Migut is a tow truck operator and is employed by a company specializing in

removing illegally parked cars from private property.1 On September 10, 2002,

Deputy Sheriff Flynn stopped Migut for disobeying a stop sign. During the stop,

Migut began to record his conversation with Deputy Sheriff Flynn with a handheld

tape recorder. Upon noticing the recorder, Deputy Sheriff Flynn told Migut to

turn the recorder off. Migut refused and Deputy Sheriff Flynn placed Migut under


       1
         Given the Rule 12(b)(6) posture of the qualified immunity claim, we review the
complaint as if all of the allegations contained therein are true. Cottone v. Jenne, 326 F.3d 1352,
1355 & n.1 (11th Cir. 2003) (“Because we must accept the allegations of plaintiffs’ amended
complaint as true, what we set out in this opinion as ‘the facts’ for Rule 12(b)(6) purposes may
not be the actual facts.”). Further, as for the summary judgment, we review the facts in the light
most favorable to the non-moving party. See Draper v. Reynolds, 369 F.3d 1270, 1272 n.1 (11th
Cir. 2004).

                                                 2
arrest for intercepting an oral communication in violation of Fla. Stat. Ann. §

934.03.2

         Subsequently, State Attorney Barry E. Krischer charged Migut with

violation of § 934.03(1)(a). On December 18, 2002, the charge was dismissed by

an entry of nolle prosse, which stated “[a]lthough there was probable cause for

arrest and charge of the Defendant, the State has entered a Nolle Prosse in this

case.”

         Migut brought suit against Deputy Sheriff Flynn and State Attorney

Krischer. Migut’s first amended complaint sued Deputy Sheriff Flynn for false

arrest under § 1983 (count 1), and Deputy Sheriff Flynn and State Attorney

Krischer for a declaratory judgment that § 934.03 is not violated when a motorist

records a conversation with a police officer during a routine traffic stop (count 2).

         Deputy Sheriff Flynn filed a Rule 12(b)(6) motion to dismiss Migut’s §

1983 false-arrest claim based on qualified immunity. On May 13, 2004, the

district court granted Deputy Sheriff Flynn’s motion to dismiss, concluding that




         2
         Section 934.03 provides in relevant part:
        (1) Except as otherwise specifically provided in this chapter, any person who:
        (a) Intentionally intercepts, [or] endeavors to intercept . . . any wire, oral, or
        electronic communication; . . . shall be punished as provided in subsection (4).
Fla. Stat. Ann. § 934.03(1)(a).

                                                3
Migut’s arrest was supported by arguable probable cause and that Deputy Sheriff

Flynn was thus entitled to qualified immunity.

      Migut then moved for summary judgment on count 2, his claim for a

declaratory judgment. The district court denied Migut’s summary judgment

motion and granted sua sponte summary judgment to Deputy Sheriff Flynn and

State Attorney Krischer on count 2. Migut now appeals the final judgment entered

on both counts 1 and 2.

                                 II. DISCUSSION

A.    Qualified Immunity Principles

      “The defense of qualified immunity completely protects government

officials performing discretionary functions from suit in their individual capacities

unless their conduct violates clearly established statutory or constitutional rights

of which a reasonable person would have known.” Cottone v. Jenne, 326 F.3d

1352, 1357 (11th Cir. 2003) (internal quotation marks and citations omitted). “To

receive qualified immunity, a government official first must prove that he was

acting within his discretionary authority.” Id. at 1357-58 (citation omitted). In

this case, it is clear – and undisputed – that Deputy Sheriff Flynn was acting

within his discretionary authority.




                                          4
      “Once a defendant establishes that he was acting within his discretionary

authority, the burden shifts to the plaintiff to show that the defendant is not

entitled to qualified immunity.” Id. at 1358. The Supreme Court has established a

two-part test to determine the applicability of qualified immunity. “The threshold

inquiry a court must undertake in a qualified immunity analysis is whether [the]

plaintiff’s allegations, if true, establish a constitutional violation.” Hope v. Pelzer,

536 U.S. 730, 736, 122 S. Ct. 2508, 2513 (2002) (citation omitted). “If, under the

plaintiff’s allegations, the defendants would have violated a constitutional right,

‘the next, sequential step is to ask whether the right was clearly established.’”

Cottone, 326 F.3d at 1358 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct.

2151 (2001)).

B.    Migut’s False-Arrest Claim

      “A warrantless arrest is constitutionally valid only when there is probable

cause to arrest.” Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003).

Probable cause existed if, “at the moment the arrest was made, ‘the facts and

circumstances within [the officers’] knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a prudent man in believing’ that

[the suspect] had committed or was committing an offense.” Dahl v. Holley, 312

F.3d 1228, 1233 (11th Cir. 2002) (quoting Hunter v. Bryant, 502 U.S. 224, 228,

                                           5
112 S. Ct. 534, 537 (1991)). However, “[t]o receive qualified immunity

protection, an officer need not have actual probable cause but only arguable

probable cause.” Holmes, 321 F.3d at 1079 (internal quotation marks and citation

omitted). To determine whether an officer has arguable probable cause, the

inquiry is “whether an officer reasonably could have believed that probable cause

existed, in light of the information the officer possessed.” Id. (quotation marks

and citation omitted). Thus, “[e]ven law enforcement officials who ‘reasonably

but mistakenly conclude that probable cause is present’ are entitled to immunity.”

Hunter, 502 U.S. at 227, 112 S. Ct. at 536 (citation omitted).

       As discussed above, Deputy Sheriff Flynn, after noticing that Migut was

taping their conversation and asking Migut to stop doing so, placed Migut under

arrest for intercepting an oral communication in violation of Fla. Stat. Ann. §

934.03(1)(a).3

       Section 934.03 provides in relevant part:

       (1) Except as otherwise specifically provided in this chapter, any person
       who:



       3
        “We review de novo a dismissal for failure to state a claim, and a complaint may not be
dismissed under Fed.R.Civ.P. 12(b)(6) ‘unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.’” Magluta v.
Samples, 256 F.3d 1282, 1283-84 (11th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-
46, 78 S. Ct. 99, 102 (1957)).

                                               6
      (a) Intentionally intercepts, [or] endeavors to intercept . . . any wire, oral,
      or electronic communication; . . . shall be punished as provided in
      subsection (4).

Fla. Stat. Ann. § 934.03(1)(a). Subsection (4) provides that it is a third degree

felony to intercept a wire, oral, or electronic communication. Fla. Stat. Ann. §

934.03(4).

      Section 934.02(3) defines “intercept” as “the aural or other acquisition of

the contents of any wire, electronic, or oral communication through the use of any

electronic, mechanical, or other device.” Fla. Stat. Ann. § 934.02(3) (emphasis

added). Considering this definition of intercept, the Florida Supreme Court has

determined that § 943.03 prohibits the tape recording of a face-to-face

conversation in which one is participating without the consent of all parties. See

State v. Tsavaris, 394 So.2d 418, 420 (Fla. 1981), receded from on other grounds,

478 So.2d 38 (1985); see also Guilder v. State, – So.2d – , 2005 WL 714859, *3-

*4 (Fla. Dist. Ct. App. March 30, 2005).

      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.




                                            7
Fla. Stat. Ann. § 934.02(2) (emphasis added).4 For an oral conversation to be

protected under § 934.03(1)(a), Florida courts have indicated that the speaker must

have an actual subjective expectation of privacy, along with a societal recognition

that the expectation is reasonable. State v. Inciarrano, 473 So.2d 1272, 1275 (Fla.

1985). “Where both elements are present, the statute has been violated whether

the intercepted communication is private in nature or not.” Stevenson v. State,

667 So.2d 410, 412 (Fla. Dist. Ct. App. 1996) (citation omitted).

       “A significant factor used in determining the reasonableness of the

defendant’s expectation of privacy in a conversation is the location in which the

conversation or communication occurs.” Id. “‘Conversations occurring inside an

enclosed area or in a secluded area are more likely to be protected under section

934.02(2).’” Id. (quoting Cinci v. State, 642 So.2d 572, 573 (Fla. Dist. Ct. App.

1994). However, under Florida law, public places are not necessarily excluded

from the statute, except when the public place is a public meeting. See Brandin v.

State, 669 So.2d 280, 281 (Fla. Dist. Ct. App. 1996) (“We cannot agree with the

state’s assertion that conversations occurring in public areas can never be made




       4
        “The Florida Supreme Court has interpreted the test set forth in this definition as
substantially the same test used in a Fourth Amendment right to privacy analysis.” Stevenson,
667 So.2d at 412.

                                               8
with an expectation of privacy. Common experience teaches that the opposite may

often be true.”).

       Besides location, “[o]ther significant factors used in determining the

reasonableness of the defendant’s expectation of privacy are the manner in which

the oral communication is made and the kind of communication.” Stevenson, 667

So.2d at 412.

       This Court has been unable to locate a case in which a Florida court has

specifically held that police officers have a reasonable expectation of privacy in

their conversations with citizens.5 However, one Florida court has concluded that

an officer had probable cause to believe a violation of § 934.03(1)(a) occurred




       5
          We do note that citizens do not have a reasonable expectation of privacy in their
conversations when a police officer is a party to the conversation and the purpose of the
interception is to obtain evidence of a criminal act. See § 934.03(2)(c). Section 934.03(2)(c)
provides:
         It is lawful under §§ 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.
Fla. Stat. Ann. § 934.03(2)(c) (emphasis added); see also Madsen v. State, 502 So.2d 948, 949
(Fla. Dist. Ct. App. 1987) (stating that § 943.03 “exempts from its operation the interception of
oral communications by a police officer when the officer is one of the communicants or where
one party to the conversation has given prior consent to the interception”). However, there is no
similar statutory provision providing that a citizen may intercept the communication of a police
officer.

                                                9
when the suspect had recorded a conversation with another officer without that

officer’s consent. State v. Keen, 384 So.2d 284 (Fla. Dist. Ct. App. 1980).

      In Keen, the defendant Keen visited the jail seeking to have a bugging

device (that was seized earlier in the day) returned to him. Officer Frawley, who

had noticed Keen at the jail earlier, engaged Keen in conversation about his

bugging device. During the conversation, Keen took out a small tape recorder and

held it in the palm of his hand. At the conclusion of the conversation, Keen put

the tape recorder back in his pocket. Id. at 285. Officer Frawley contacted

Sergeant Deludes in the Sheriff’s Office to tell him to stop Keen’s car if he saw it

and seize the small tape recorder because Keen had recorded Frawley without

Frawley’s consent. Id. at 286. Officer Deludes subsequently stopped Keen’s

vehicle and seized the recorder. The issue in Keen was whether there was

sufficient probable cause to stop Keen’s car, thus validating the seizure of the tape

recorder. Id.

      The Keen court concluded that Deludes had a “rational basis for formulating

a probable belief that a violation of Section 934.03(1)(a) had occurred” and thus,

there was probable cause for the stop. In doing so, the Florida court stated:

      It is obvious from the record that Frawley [the officer at the jail] had
      good reason to believe that the appellee was probably bugging him,
      especially when we consider that he had prior knowledge that the

                                         10
      appellee was carrying the bugging device. . . . The evidence indicates
      that Frawley had a rational basis for formulating a probable belief that
      a violation of Section 934.03(1)(a) had occurred. The cumulative effect
      of the information and observations known to Frawley, combined with
      his expertise, knowledge, and skill as a police officer, were sufficient to
      give him reasonable grounds for believing that the appellee was engaged
      in the commission of a crime.

Keen, 384 So.2d at 287. Thus, the Florida court determined that there was

probable cause to believe that Keen’s tape recording of Officer Frawley was a

violation of § 934.03(1)(a).

      The issue in this case is whether, considering the facts as set forth in the

complaint, Deputy Flynn had at least arguable probable cause to believe that

Migut was violating § 934.03(1)(a) when Migut taped their conversation. We

conclude that he did. There is no dispute that Migut intentionally intercepted via

tape recorder his conversation with Deputy Sheriff Flynn, and that Deputy Sheriff

Flynn did not consent. Moreover, it was not unreasonable for Deputy Sheriff

Flynn to expect that the conversation would be protected under § 934.03(1)(a).

See Keen, 384 So.2d at 287.

      Accordingly, Deputy Sheriff Flynn did not violate Migut’s constitutional

rights, and the district court properly dismissed the false-arrest claim against Flynn

based on qualified immunity.

C.    Migut’s Declaratory Judgment Claim

                                          11
      Migut also appeals the district court’s order denying Migut’s summary

judgment motion and granting sua sponte summary judgment to Deputy Sheriff

Flynn and State Attorney Krischer on Migut’s claim for declaratory relief.

      In the district court, Migut sought a declaratory judgment stating that “on

the public street, or in any other public place, Florida Statute § 934.03 does not

afford an officer of the law a legal right not to have his conversations with a

citizen recorded while conducting an investigatory traffic stop.” The district court

denied declaratory relief, stating that “[i]f the [Florida] legislature had intended

that citizens could be allowed to tape record police officers’ conversations, they

could have said so.”

      We conclude that the district court properly denied Migut’s request for

declaratory relief. First, § 934.03 is unambiguous and does not include an

exception for a private individual who records a police officer without the

officer’s consent. See § 934.03 (prohibiting some interception conduct and

allowing other interception conduct). Second, Migut points to no United States

Supreme Court, Eleventh Circuit, or Florida state court decision holding that the

communications of police officers conducting traffic stops are not protected by §

934.03. Indeed, the only Florida decision addressing this issue actually concluded

that it was reasonable for the police officer to believe a violation of § 934.03(1)(a)

                                          12
occurred when the suspect had recorded a conversation with another officer

without that officer’s consent. See Keen, 384 So.2d at 287.

      Third, communications in public places are not necessarily excluded from §

934.03 (except when the public place is a public meeting). See Brandin, 669

So.2d at 281 (“We cannot agree with the state’s assertion that conversations

occurring in public areas can never be made with an expectation of privacy.

Common experience teaches that the opposite may often be true.”). Thus, just

because a traffic stop takes place on a public street does not mean that the police

officer’s communication is not protected under § 934.03. Fourth, the

communication does not have to be private to be protected. See Stevenson, 667

So.2d at 412 (“Where both elements are present, [§ 934.03] has been violated

whether the intercepted communication is private in nature or not.”). Thus, the

fact that the police officer’s communication occurred during a traffic stop on a

public street does not necessarily mean that it is not protected under § 934.03.

      Finally, whether a particular communication is protected under

§ 934.03(1)(a) is an intensely fact-specific inquiry, and we are not prepared to

hold that the Florida legislature intended to exclude from the protections of

§ 934.03 all citizen communications with all police officers during all traffic stops

on a public street.

                                         13
                                III. CONCLUSION

      For the foregoing reasons, we affirm the district court’s dismissal of Migut’s

§ 1983 false-arrest claim. We also affirm the district court’s denial of summary

judgment to Migut and grant of summary judgment to the defendants on Migut’s

claim for declaratory relief.

      AFFIRMED.




                                        14
