[DO NOT PUBLISH]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