### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

STATE OF FLORIDA
, Appellant,

v.

KIMBERLY D. FOSTER
, Appellee

.

No. 4D 21

- 135

[ July 21, 2021 ]

Appeal from the County Court for the Nineteenth Judicial Circuit, Martin County ; Kathleen H. Roberts , Judge; L.T. Case No s

. 432020MM001135A and 432020AP000009

.

Ashley Moody, Attorney General, Tallahassee, and MaryEllen M. Farrell, Assistant Attorney General, West Palm Beach, and Bruce H. Colton, State Attorney, and Marcus A. Johnson a nd Nirlaine Tallandier Smartt, Assistant State Attorneys, Fort Pierce, for appellant.

Louis G. Carres, West Palm Beach, and John Musca of Musca Law, Naples, for appellee.

D AMOORGIAN

, J

.

The State of Florida (“the State”) appeals the county court’s order granting Kimberly D. Foster’s (“ Defendant ”) motion in limine, which

excluded the State’s use of a recorded exit interview on the basis that

Defendant had a reasonable expectation of privacy. For the reasons outlined below, we reverse.

By way of background

, Defendant was working as a correctional officer

at Florida’s Department of Corrections (“ F DOC”) Martin Correctional Institution (“MCI”). In early 2019, Correctional Officer Sergeant Tyler Grinstead (“Grinstead”) went to MCI to submit his resig nation. Defendant and Major Nathan Pollock (“Pollock”) conducted Grinstead ’s exit interview

in the warden’s office, which is within MCI’s administrat ion building. There are signs posted at MCI that cell phones are not permitted.2 During the exit intervie w, Grinstead told Defendant and Pollock that he

saw F DOC staff members using excessive force on three inmates during three separate incidents. Unbeknownst to Defendant or Poll oc k, Grinstead recorded the exit interview in order to “protect himself and the reason why he quit.” After the exit interview, Defendant prepared an incident report which stated that Grinstead was “quitting due to inmates telling him that staff were mistrea ting them” and that Grinstead “did not witness any mistreatment by staff himself.” The incident report was entered into the Management Information Notification System (“MINS”) and reviewed by the Department of Corrections, Office of the Inspector

Genera l (“IG”)

.

The same day as the exit interview, Grinstead contacted the IG to report that he had witnessed multiple incidents involving excessive use of force

on inmates at MCI a few days prior . As a result, i nspectors with in the IG ’s

o ffice conducted a sw orn interview with Defendant a t MCI. Defendant completed a “FDOC IG Oath and Perjury Warning Form DC1

- 850” which indicated it was an official investigation concerning allegations of physical abuse of members of MCI, and that any false statements would con stitute the crime of perjury. Defendant signed the form and agreed to provide a

statement . In her statement, Defendant asserted she recognized the MINS report she prepared in early 2019 ; that Grinstead told her he was resigning because he heard from prisoners that other prisoners were being abused

at MCI ; that Grinstead did not tell her he witnessed any specific instances

of inmate abuse ; and that Grinstead could not supply any names of

pe rsonnel involved in the alleged misconduct because he was new at MCI

.

Defendant was ultimately arrested for perjury and pro vid ing a false

official statement. Prior to trial, Defendant filed a motion to suppress 1 the recorded exit interview, arguing her statements were oral communications,

as defined in section 934.02 , Florida Statutes (2019)

, obtained in violation

of section 934.03 , Florida Statutes (2019)

, and subject to statutory suppression under section 934.06 , Florida Statutes (2019)

. The State

cou ntered that the recording fell outside the definition of

“oral communication s ” provided in section 934.02 and thus Defendant had no reasonable expectation of privacy in her oral statements because : (1) the recorded conversation was documented by Defendant in MINS and became a public record; (2) all three attendees at the exit interview were employed by FDOC and were discussing the excessive use of force at MCI, a matter of public importance; and (3) the exit interview took place in the administration building at MCI, which is a public venue. After a hearing,

————————————————————————————————————

1 The motion to suppress was treated as a motion in limine.3 the court granted Defendant’s motion and excluded the use of the recording in the State’s case, concluding in part:

There is a reasonable, su bjective expectation of privacy that conversations made in a closed room outside of the hearing of anyone but the persons involved in the conversation, with rules established and enforced that prohibit a cell phone from being brought into the building, and thereby recording, a chance meeting between a resigned officer and his superiors.

The State thereafter moved for rehearing, which the court denied.

On appeal, the State argues the court erred in finding Defendant had a reasonable expectation of priv acy during the mandatory exit interview, as FDOC’s policy mandated that both the exit interview and its subject matter be documented; the subject matter involved matters of great public importance; the interview was witnessed by another FDOC employee; and the interview took place on government property. We agree.

Section 934.03, Florida Statutes (2019) , prohibits the interception or recording of private oral communications in Florida. Section 934.02(2),

Florida Statutes (2019) , defines an “oral communica tion” 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 meetin g or any electronic

communication.” Section 934.06, Florida Statutes (2019) , prohibits the use of unlawfully intercepted oral communications as evidence , providing in pertinent part that “no part of the contents of such communication and

no evidence deriv ed therefrom may be received in evidence in any trial . . . if the disclosure of that information would be in violation of this chapter.”

Our supreme court has held that an oral communication is protected

under section 934.03 if it satisfies a two

- part test: “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)

. A person exhibits a subjective expectation of privacy only when “the individual has shown that ‘he seeks to preserve [something] as private .’” Smith v. Maryland , 442 U.S. 735, 740 (1979) (alteration in original) (quoting Katz v. U nited S tates , 389 U.S. 347, 351 (1967)). A party’s claim to a subjective expectation of privacy in a conversation can be rejected when there is no evidence the par ty “made any effort or otherwise took4 precautions to keep the conversation private.” Stevenson v. State , 667 So. 2d 410, 412 (Fla. 1st DCA 1996)

.

The holding in McDonough v. Fernandez

- Rundle , 862 F.3d 1314 (11th Cir. 2017)

, is instructive . I n that cas e , the Homestead Chief of Police invited McDonough , a member of the public, to discuss a series of complaints McDonough had lodged against a Homestead police officer. Id.

at 1316. McDonough secretly recorded the meeting with the Chief, which took place in the Chief’s office and in the presence of McDonough’s friend and a Homestead Police Department Internal Affairs detective. Id

. In concluding that McDonough had not violated sect ion 934.03, t he

Eleventh Circuit noted that “the expectations of privacy needed to trigger application of the statute must be exhibited; in other words they must be ‘shown externally’ or ‘demonstrated.’” Id. at 1319. The court held that section 934.02, w hich prohibit s the recording of oral communications

where a participant ha s an expectation of privacy, did not apply to the meeting, explaining:

[T]here were at least four participants present: two members of the public, and two public officials also att ended the meeting in the performance of their official duties. Moreover, the topic of their meeting was one of acute public interest: citizens discussing allegations of possible police misconduct with the chief of police.

Id . at 1320. The court also no ted that the content of the meeting would likely be subject to public record disclosure. Id.

Here, similar to that in McDonough , the parties did not demonstrate externally any sort of expectation that the meeting was private or

confidential. Although Defendant argues on appeal that the reason for Grinstead’s resignation was unlawfully recorded without knowledge or

consent, the re cord reflects that after the exit interview, Defendant herself documented Grinstead’s reason for resignation by preparing an incident report that was submitted to MINS for review by the IG ’s o ffice for a possible investigation . Also, all attendees at the exit interview were MCI employees , on MCI property, acting in furtherance of their public duties

. Finally , the allegations of inmate abuse were a matter of public interest

which Defendant documented and shared for the purpose of a possible investigation

.

Based on the location of the exit interview, the nature and purpose of the interview, the manner in which the communication was made, and the number of people present, we hold there was no subjective expectation of5 privacy , and the recorded exit intervi ew was not an “oral communication”

as defined by section 934.02, Florida Statutes. See Dep ’t of Agric

. &

Consumer Servs

. v. Edwards , 654 So. 2d 628, 6 32

– 33 (Fla. 1st DCA 1995) ( any subjective expectation of privacy was not reasonabl e where the recorded conversation was between three police officers during an office meeting about employment grievances, “because of the number of persons present when the statements were made, the place chosen for the interview, and the very nature of th at interview”) ; McDonough , 862 F.3d at 1320 (no reasonable expectation of privacy where “[a]ll the attendees were charged with knowledge that the content of their conversation could be subject to public records disclosure laws”); Smit h , 442 U.S. at 7 43

– 44 (“[A] person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”).

Reversed and remanded

.

G ROSS and M AY
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.