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To: Dr.

Bast
From: Tatiana Zuniga
Re: Whether secretly taped conversation will be suppressed
Date: April 7, 2015

Facts:
Lisa Clark was a graphic designer with a home business and office in her house, located
on the second floor. The client, Robert Wolf stopped by the house and told her what to put on his
website and that he wanted a website for his construction business called Wolf Construction.
She was very suspicious of all clients and always kept a tape recorder; it was a voice
activated tape recorder. The day they designed a website and then the day after he came back to
change something in the website because he found something better. And kept asking to change
things around and Lisa got frustrated.
After two weeks from first visit, he came back for same reason of changing things
because he found something better. Then she got frustrated and pulled out a shiny metal object
when they were on the second floor of her home and held it up to him and said what are you
doing? Put that down!, but it was too late, she had killed him. She disposed of the body by
putting it into a plastic bag and bringing it to the city dump.
Then a month later the police showed up at her house and asked if she knew that Robert
Wolf disappeared a month ago. A neighbor had told the police that she saw a guy that fit Wolfs
description show up to Lisas house. The officer asked Lisa to leave the house for an hour so he
could search it. The officer searched the house and found the tape containing the evidence that
she had killed Wolf.
The officer asked if she had a tape recorder but she said she was not sure and then he said
he found the tape and she said it was something her mother Carol Clark gave to her. She is
currently in jail awaiting trial.
Issues:
1: Was the conversation between Lisa Clark and Robert Wolf, which Lisa Clark surreptitiously
recorded, a private conversation?

2: Should the court suppress the information taped by Lisa Clark?


Answers:
1: Robert Wolf had an expectation of privacy that his conversation with Lisa was not being
recorded and this expectation was reasonable because their conversation took place in a private
home office; therefore, the court would find that the conversation was private.
2: Because Lisa Clark deliberately tape-recorded a private conversation, the tape was illegally
made and the prosecution would be doing something illegal by playing the tape at trial; therefore,
the court should suppress the taped information.
Reasoning:
In a criminal case, there is a necessary tension between the task of the prosecution, which
is to prosecute a crime, and the defendants interest in making sure that all evidence was legally
gathered. The prosecution must gather sufficient evidence to prove its case beyond a reasonable
doubt. In gathering sufficient evidence, however, the police must be careful to abide by
applicable law and evidence gathered in violation of the law should not be used by the
prosecution. An individual does have a right to privacy and would expect privacy in certain
secluded locations. There is also a privacy concern with a recorded conversation if one party
was not aware of the recording device. A problem arises where the prosecution wants to use a
conversation that was secretly taped as evidence. In prosecuting a crime, the prosecution may not
disregard an individuals rights. The court needs to decide whether or not that evidence should be
suppressed. In order to decide the verdict of the case, the court needs to review the following
cases and statutes: State v. Inciarrano,473 So. 2d 1272 (Fla. 1985); McDade v. State, 154 So. 3d
292 (Fla. 2014); 934.02(2), 934.03(1), 934.06 Fla. Stat. (2014).

Reasoning for issue 1:


One statute that the court will review is 934.02(2). The potentially relevant portion of

that statute provides: Oral communication means any oral communication uttered by a person
exhibiting an expectation that such communication is not subject to interception under
circumstances justifying such expectation. Oral communication means words spoken by a
person with a belief that the words are not being taped when society considers the belief to be
reasonable.
In Inciarrano, the defendant, Anthony Paul Inciarrano, went to the office of Michael
Phillips to discuss a business deal involving bingo equipment. Phillips pressed the record button
on a tape recorder as soon as Inciarrano entered the room. There was an exchange of words
between the two, which escalated into arguing. Phillips was stating he no longer wanted to be a
part of the business deal and Inciarrano then proceeded to shoot Phillips five times. The tape
recording includes Phillips groaning and falling from his chair to the floor where the
investigating officer later found him dead.
In McDade, the defendant, McDade, was sexually abusing his stepdaughter; when the
stepdaughters boyfriend heard about the abuse he convinced the victim to gather evidence
against McDade. McDades stepdaughter used the mp3 player that her boyfriend let her borrow,
hid it in her shirt, and approached McDade in his room on two separate occasions. When they
were alone after school, the recorder taped McDade asking her for sex. On both occasions,
McDade did not use sexually explicit language. McDade coerced the victim to have sex with him
by claiming that if she did not, he would get sick. He also said that it was a good thing that the
victim did not say anything to her mother because doing so would result in the victims mother
taking the victim back to Mexico.
Inciarrano is similar to Clark because each case took place in an office. In each case, one
party to the conversation was secretly recorded by the other party in to the conversation, one
party to the conversation was an invitee, and each victim was murdered. McDade is similar to
Clark because they both occurred in the privacy of a home. Each case involved an individual
who was secretly recorded without the individuals knowledge by the other party to the
conversation. Each of the three cases is a criminal case in which the prosecution wanted or wants
to use the taped information as evidence and in each of the cases one party wanted or wants the
taped information suppressed.

Conclusion for issue 1:


The significant similarities among Clark, Inciarrano, and McDade are that each is a
criminal case in which, during a conversation between two people, one party in the conversation
was secretly tape recorded by the other party. Clark contains more similarities with McDade than
with Inciarrano; when comparing Clark to McDade, each case occurred within a secluded home
setting where one speaker had an expectation of privacy that society would consider reasonable
because of the home setting. In contrast, in Inciarrano the conversation was taped in an office
open to the public where it was not reasonable for Inciarrano to expect privacy. As defined by
934.02(2), oral communication means words spoken by a person with a belief that the words
are not being taped where society considers the belief to be reasonable. Therefore, the taped
conversation in Clark would qualify as an oral communication under 934.02(2).
Reasoning for issue 2:
The court will also need to determine if 934.03(1) applies to Clark. The potentially
relevant portion of the statute provides:
(1) Except as otherwise specifically provided in this chapter, any person who:
(a) Intentionally intercepts . . . any . . . oral . . . communication; [or]
....
(c) Intentionally discloses . . . to any other person the contents of any . . . oral . . .
communication, knowing or having reason to know that the information was
obtained through the interception of a[n] . . . oral . . . communication in violation
of this subsection
....
shall be punished as provided in subsection (4).
This translates to, except as otherwise stated, one who deliberately tapes a private
conversation commits a third degree. Except as otherwise stated, an individual who
deliberately plays to someone else the tape of a private conversation while knowing or

having reason to know that the tape was illegally made commits a third degree felony.
Section 934.03(1) applies to Clark because Lisa Clark committed a third degree felony
when she deliberately taped a private conversation in her private home where an expectation of
privacy was reasonable. The prosecution would be committing a third degree felony if the
prosecution were to play the tape at trial because the prosecution is cognizant of the fact that the
tape was illegally made.
Another statute that will be reviewed is 934.06. The potentially relevant portion of
section 934.06 provides: Whenever any . . . oral communication has been intercepted, no part of
the contents of such communication . . . may be received in evidence in any trial . . . if the
disclosure of that information would be in violation of this chapter. No part of a taped private
conversation may be used as evidence at trial if playing that tape violates chapter 934.
Section 934.06 applies to Clark because she taped a private conversation and the judge
would suppress the taped information because playing the tape would violate chapter 934. The
taping of a private oral communication made all three statues apply and because of that the taped
evidence would be suppressed.
Conclusion for issue 2:
Lisa Clark committed a third degree felony under 934.03(1) when she deliberately tape
recorded a private conversation. Therefore, the first portion of 934.03(1) is relevant and applies
to Clark. The prosecution would also be committing a third degree felony under 934.03(1) if it
were to play the tape at trial, because the prosecution is cognizant of the fact that the tape was
illegally made. Therefore, the second portion of 934.03(1) is relevant and also applies to Clark.
Section 934.06 states that no part of a taped private conversation may be used as evidence at
trial, if playing that tape violates chapter 934. Therefore, the court in Clark would suppress the
taped conversation under 934.06 because the prosecution would be committing a third degree
felony by playing the tape at trial.