McDade v. State: a clarion call for an exception to Florida's Secrecy of Communications Act.

AuthorRosquete, Armando
PositionCase overview

The law lives and breathes words and, on occasion, applying the plain language of those words to specific facts sounds a clarion call for change. On December 11, 2014, the Florida Supreme Court held in McDade v. State, 154 So. 3d 292 (Fla. 2014), that a defendant accused of child molestation has an expectation of privacy in conversations between him and his victim taking place in their shared residence where he asked her to have sex with him and also alluded to his prior acts of sexual abuse. In doing so, the court concluded that the Secrecy of Communications Act's (SCA), F.S. Ch. 934, et seq. (2014), plain language barred the trial court's admission of a recorded conversation between McDade and his victim into evidence. The decision may surprise some, especially when one considers that the victim's actions in McDade also constituted a crime under the SCA and authorized the criminal defendant in that case to sue the victim under the statute's civil cause of action. (1)

After McDade, the legislature endeavored to address the SCA's shortcomings. On January 28, 2015, Sen. Lizbeth Benacquisto from Ft. Myers sponsored S.B. 542 in response to McDade and Rep. Carlos Trujillo and Rep. Jared Moskowitz sponsored a companion bill, H.B. 7001, in the House (SCA Amendment). The SCA Amendment passed following a House vote on April 24, 2015, and Gov. Rick Scott signed it into law on May 22, 2015. (2) The SCA Amendment has an effective date of July 1, 2015. It allows recordings under the SCA in cases involving an "unlawful sexual act or an unlawful act of physical force or violence against a child." (3)

The SCA Amendment, however, is less than perfect and will affect how the SCA is applied at the investigative level and litigated in civil and criminal cases. First, it does not allow a parent or legal guardian of a minor to record the alleged perpetrator of the abuse. Second, it only allows a child "under the age of 18" to undertake the recording thereby ignoring significant scientific research on "delayed recall" and the fact that in McDade itself there was a six year delay between the beginning of the abuse and the date of the recording. The legislature should attempt to address these issues in a future session or risk frustrating the SCA Amendment's policy aspirations. (4)

The Secrecy of Communications Act

In order to evaluate McDade and the efficacy of the SCA Amendment, one must first understand the SCA and the legislative policy choices it embodies. (5) Generally, "[t]he protection of a person's general right to privacy is left largely to the states." The SCA is a legislative creature that ensconces a strong policy favoring privacy in communications and impacts the presentation of evidence in a wide range of contexts. (6) In furtherance of those preferences, the statute has an exclusionary rule that applies in criminal and civil cases at considerable expense to truth seeking, impeachment, and the accurate presentation of evidence. (7) While those sacrifices certainly have merit in the criminal context where the state's power looms large and the exclusionary rule's deterrent effect portends corrective force in future criminal prosecutions, they are in no way unassailable and are susceptible to criticism in circumstances such as those in McDade and beyond. (8)

At its heart, the SCA prevents, with certain exceptions, the interception and use of any "oral communication" obtained without court authorization or absent the consent of all parties to the conversation. The statute defines an "intercept" of an "oral communication" 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." (9) It defines "oral communication" as one that is "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." (10) Florida courts have established a two-part test for determining whether an expectation of privacy is reasonable. First, the speaker must have a subjective expectation of privacy. (11) Second, the expectation of privacy must be one which society is prepared to recognize as reasonable. (12) An improperly intercepted oral communication, and any evidence derived from it, cannot be admitted into evidence at "any trial, hearing or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof." (13) The SCA also criminalizes violations of the statute and provides for a private civil cause of action. (14)

Prior to the SCA Amendment, exceptions to the SCA's prohibitions were found in [section]934.03(2)(a)-(j), which include what is commonly referred to as the "law enforcement" exception. Pursuant to that exception, "it is lawful ... 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." (15) It is this exception that features prominently in SCA cases and prosecutions for child-sexual abuse. And, in McDade, it was the victim's failure to fall within this exception that barred the recordings under the SCA.

Factual Background of McDade v. State

In McDade, the defendant was charged with various sex crimes after his then 16-year-old stepdaughter reported that he had been sexually abusing her since she was 10 years old. The victim, whose immigration status was uncertain, alleged that McDade threatened that the authorities would return her and her mother to Mexico if she reported his conduct. The victim claimed that on prior occasions she reported the abuse to several people, including her mother, doctor, and two church ministers.

The mother herself admitted that the victim had reported the abuse to her, but" [t] lie mother adamantly did not believe her daughter," and, when pressed about her accusations, the victim "recanted on more than one occasion." (16) The victim stated that she retracted her claims out of fear of having to return to Mexico. (17) The court noted that "[p]erhaps because of those retractions, no one reported her claims even though any person who has reasonable cause to suspect child abuse must report it [pursuant to F.S. [section]39.201 (2012)]," (18)

It is against this backdrop that the victim, in April 2011, used her boyfriend's mp3 player, approached McDade while both were in their shared residence, and recorded two conversations with McDade that she promptly turned over to police. As the court described it, "[s] he was essentially conducting her own investigation hoping to prompt McDade into making incriminating statements that she could secretly record as evidence of abuse." (19) And those recordings "supported the victim's testimony that McDade would regularly ask her to have sex with him after school." (20) Specifically, in the recordings McDade asked her to have sex with him, stated that if she refused to do so he would get physically sick, and indicated that he was doing her a favor by not telling the victim's mother because she would take the victim back to Mexico. (21) The jury convicted McDade of various sex crimes and sentenced him to, among other things, two life sentences. (22) Given the victim's prior recantations, one could reasonably argue that the jury's verdict in McDade illustrates the power of recordings to corroborate, and, therefore, enhance the trier of fact's comfort with the reliability of victim testimony in sexual abuse cases. It is this consideration, among others, that makes the SCA Amendment, despite certain shortcomings, a decent piece of legislation.

Second District Court of Appeal's Opinion in McDade

On appeal, the Second District Court of Appeal affirmed the trial court's admission of the recordings, reasoning "that the narrow factual circumstances of this case do not fall within the statutory prescription of chapter 934." (23) The Second District reasoned that "the statutory proscription [on recording oral communications] of chapter 934 only applies where the person uttering the communication has a reasonable expectation of privacy in that communication under the circumstances." (24) The court relied on State v. Incirriano, 473 So. 2d 1272 (Fla. 1985), a case involving an audio recording made in the victim's office that captured the commission of a murder, stating:

As in Inciarrano, this case involves recordings made by a victim of the very criminal acts by which she was victimized. The minor victim recorded. McDade soliciting her for sexual acts, as he had done for years. And though the conversation took place in McDade's home, it was also the victim's home. Considering these circumstances and consistent with the analysis and holding in Inciarrano, we conclude that any expectation of privacy McDade may have had is not one which society is prepared to accept as reasonable. (25)

In sum, the court reasoned that the defendant had to possess a reasonable expectation of privacy in the recorded statement's content, and that the context surrounding those statements was not dispositive to the analysis. The majority's reliance on Inciarrano stoked concern with some of the judges. (26) That concern would prove well-placed because the Florida Supreme Court overturned the Second District and rejected the majority's reliance on Inciarrano.

The Florida Supreme Court's Opinion

The Florida Supreme Court's opinion in McDade refocused the SCA's "expectation-of-privacy" analysis on the context in which the statements were...

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