CANADY, J.
In this case, we consider a certified question of great public importance concerning the application of the prohibition under chapter 934, Florida Statutes (2010), on intercepting certain oral communications. Specifically, we consider whether the prohibition applies to recordings of solicitation and confirmation of child sexual abuse when the recordings were surreptitiously made by the child in the bedroom of the accused.
In McDade v. State, 114 So.3d 465, 467 (Fla. 2d DCA 2013), the Second District Court of Appeal rejected McDade's argument that two recordings of conversations he had in his bedroom with his stepdaughter should have been suppressed under chapter 934's statutory exclusionary rule. The court also rejected McDade's argument that testimony of the stepdaughter's boyfriend recounting statements of the stepdaughter that McDade had raped her should have been excluded as hearsay. Regarding the recorded conversations, the Second District held "that the narrow factual circumstances of this case do not fall within the statutory proscription of chapter 934." Id. at 469. The Second District concluded that the boyfriend's testimony was non-hearsay because the statements made by the stepdaughter "were introduced to show why the boyfriend encouraged the victim to make the recordings," not for the truth of the matter asserted. Id. at 468-69.
The Second District certified the following question as one of great public importance:
Id. at 471. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. In line with the analysis we adopt, we rephrase the certified question as follows:
For the reasons we explain, we answer the rephrased certified question in the affirmative. We also conclude that the Second District erred regarding the boyfriend's testimony concerning statements made by the stepdaughter. We quash the Second District's decision.
McDade was arrested and charged with various sex crimes after his then sixteen-year-old stepdaughter reported that he had been sexually abusing her since she was ten years old. Prior to McDade's arrest, his stepdaughter recorded two conversations with McDade. The stepdaughter provided these recordings to law enforcement, and McDade was arrested that same day. Prior to trial, McDade moved to suppress the recordings under chapter 934, Florida Statutes. The trial court denied McDade's motion, and the case proceeded to a jury trial. The recordings were introduced at trial over McDade's objection.
At trial, the State presented the testimony of McDade's stepdaughter, her boyfriend, and multiple law enforcement officers. The State did not introduce any forensic evidence. In defense, McDade testified on his own behalf, and he presented the testimony of his wife and his treating physician. The Second District summarized the facts as follows:
Id. at 467-68.
The jury convicted McDade on two counts of sexual battery on a child younger than twelve, two counts of sexual activity with a child by a person in a position of familial or custodial authority, and one count of solicitation of sexual activity with a child by a person in a position of familial or custodial authority. McDade was sentenced to two sentences of life imprisonment for the counts of sexual battery on a child younger than twelve, two sentences of fifteen years of imprisonment for the counts of sexual activity with a child by a person in a position of familial or custodial authority, and five years of imprisonment for the count of solicitation of sexual activity with a minor by a person in familial or custodial authority, with the sentences to run concurrently.
McDade appealed to the Second District, arguing that the trial court erred when it admitted the recordings into evidence and when it permitted the boyfriend to testify about the stepdaughter telling him that McDade raped her. The district court first addressed McDade's hearsay argument. The district court concluded that "[b]ecause the statements in question were introduced to show why the boyfriend encouraged the victim to make the recordings," the boyfriend's statements did "not constitute hearsay and thus the court did not abuse its discretion in admitting them." Id. at 468-69.
The Second District then rejected McDade's argument that the trial court should have suppressed the recordings under the exclusionary rule of section 934.06, Florida Statutes (2010). The district court relied on State v. Inciarrano, 473 So.2d 1272 (Fla.1985) — a case involving an audio recording of a murder taking place — to conclude "that the narrow factual circumstances of this case do not fall within the statutory proscription of chapter 934." McDade, 114 So.3d at 469, 470. The Second District explained that "the statutory proscription [on recording oral communications]
Id. (Emphasis added.)
However, two of the judges on the Second District panel expressed concerns with this Court's decision in Inciarrano and its application to this case. See id. at 471-77 (Altenbernd, J., concurring specially; Villanti, J., concurring in part and dissenting in part). Judge Villanti concurred in the panel's decision regarding McDade's hearsay argument but dissented as to resolution of McDade's argument regarding the recordings. Id. at 475 (Villanti, J., concurring in part and dissenting in part). According to Judge Villanti, section 934.06 is unambiguous and the recordings clearly fall within the statute's plain language. Id. Further, Judge Villanti reasoned that the majority erroneously relied on Inciarrano to reach its result because the cases are factually distinguishable. Id. at 475-76. In Inciarrano, "the court considered `the quasi-public nature of the premises within which the conversations occurred, the physical proximity and accessibility of the premises to bystanders, and the location and visibility to the unaided eye of the microphone used to record the conversations.'" Id. at 476 (quoting Inciarrano, 473 So.2d at 1274). Conversely, the recording in this case was made while the defendant "was inside his own bedroom in his own residence." Id.
Judge Altenbernd agreed with the panel's resolution of both issues on appeal, but with reservations:
Id. at 471-72 (Altenbernd, J., concurring specially).
In the analysis that follows, we examine the governing statutory provisions in chapter 934, Florida Statutes, discuss the decision in Inciarrano, and answer the rephrased certified question in the affirmative. We then discuss and accept McDade's argument that the trial court erroneously admitted the boyfriend's testimony concerning the stepdaughter's statements.
Whether the provisions of chapter 934, Florida Statutes, apply to the recordings at issue in this case — where the
Section 934.03(1), Florida Statutes (2010), contains a general prohibition on the interception of any wire, oral, or electronic communications. Section 934.02(2), Florida Statutes (2010), defines the term "oral communication" for purposes of chapter 934 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."
Section 934.03(2), Florida Statutes (2010), contains a list of specific exceptions to the general prohibition in section 934.03(1). One of these exceptions is for situations in which all parties to the conversation have consented. § 934.03(2)(d), Fla. Stat. (2010). None of the exceptions allow for the interception of conversations based on one's status as the victim of a crime. The State does not argue that any of the exceptions listed in section 934.03(2) are applicable in this case.
Section 934.06 provides that the contents of any improperly intercepted communication may not be used as evidence:
This Court analyzed these statutory provisions in State v. Walls, 356 So.2d 294 (Fla.1978). In Walls, "the alleged victim of extortionary threats, electronically recorded a conversation" between himself and the defendants. Id. at 295. The Court concluded that the recording was inadmissible under section 934.06, Florida Statutes (1975). The Court explained:
Id. at 296.
Similarly, under the definition of oral communication provided by section 934.02(2), Florida Statutes (2010), McDade's conversations with his stepdaughter in his bedroom are oral communications. The facts related to the recorded conversations support the conclusion that McDade's statements were "uttered by a person exhibiting an expectation that [his] communication [was] not subject to interception" and that McDade made those statements "under circumstances justifying" his expectation that his statements would not be recorded. § 934.02(2), Fla. Stat. (2010). The recordings were made surreptitiously. McDade did not consent to the conversations being recorded, and none of the other exceptions listed in section 934.03(2) apply. The recordings, therefore, were prohibited. Because the recordings impermissibly intercepted oral communications, the recordings are inadmissible under section 934.06, Florida Statutes (2010).
The facts of Inciarrano are in important ways different from those in both Walls and the instant case. In Inciarrano, the trial court had determined that the "statements were not made under circumstances justifying an expectation to privacy," based on factual circumstances including "the quasi-public nature of the premises within which the conversations occurred, the physical proximity and accessibility of the premises to bystanders, and the location and visibility to the unaided eye of the microphone used to record the conversations." 473 So.2d at 1274. Thus, the recording was made in the victim's place of business — a "quasi-public" place — and the recording device was visible. In addition, the recording contained sounds of the crime that were not "oral communications." Arguably, the recording was admitted at trial not for the "contents" of any "oral communications." The recording simply revealed the presence of the defendant — from the sound of his voice — and the sounds that accompanied the commission of the crime — that is, "five shots being fired ... several groans by the victim, the gushing of blood, and the victim falling from his chair." Id. Conversely, the recordings at issue in this case were made in McDade's bedroom, the recording device was hidden under the stepdaughter's shirt, and the recordings contain conversations between McDade and his stepdaughter. Because of the differences in the location, visibility of the recording device, and content of the recordings at issue in Inciarrano, it presented a set of circumstances that are starkly different from those present here.
The reasoning of Inciarrano turns, however, on the Court's conclusion that any subjective expectation of privacy that Inciarrano had was unjustified because it was not an expectation "that society is prepared to recognize as reasonable." Id. at 1275. In reaching this conclusion, the Court focused on the fact that Inciarrano went to the victim's office "to do him harm" and on Inciarrano's resulting status as a "trespasser." Id. The holding of Inciarrano thus is a narrow holding based on the view that a trespasser cannot have a justified expectation that his utterances in the premises where he trespasses are not subject to interception. Cf. United States v. Curlin, 638 F.3d 562, 565 (7th Cir.2011) (concluding that defendant who had previously been evicted from residence had "no legitimate expectation of privacy in the residence"); United States v. McRae, 156 F.3d 708, 711 (6th Cir.1998) (concluding
Inciarrano therefore is not based on a general rule that utterances associated with criminal activity are by virtue of that association necessarily uttered in circumstances that make unjustified any expectation that the utterances will not be intercepted. Nor can the holding in Inciarrano be used as a basis for the decision reached by the Second District, which turns on McDade's status as a person engaged in crimes involving the sexual abuse of a child. We thus do not understand the references in Inciarrano to "whether society is prepared to recognize [an expectation of privacy] as reasonable" to provide a basis for either such a general rule or the view adopted by the Second District. Inciarrano, 473 So.2d at 1275.
The whether-society-is-prepared-to-recognize formulation has its genesis in the Fourth Amendment context. It first appears in Justice Harlan's concurrence in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), in his discussion of the objective expectation of privacy element of Fourth Amendment analysis. This formulation cannot be understood to justify a categorical rule that persons involved in criminal activities have no justified expectation of privacy in conversations related to those activities. Such a categorical rule makes no sense either in the Fourth Amendment context or under the definition of "oral communication" in section 934.02(2). The result in Katz itself — the suppression of recordings made by the government of telephone conversations relating to illegal gambling — illustrates this point regarding the meaning of the whether-society-is-prepared-to-recognize formulation.
"Privacy expectations do not hinge on the nature of [a] defendant's activities — innocent or criminal. In fact, many Fourth Amendment issues arise precisely because the defendants were engaged in illegal activity on the premises for which they claim privacy interests." United States v. Fields, 113 F.3d 313, 321 (2d Cir.1997) (internal citation omitted); see also United States v. Pitts, 322 F.3d 449, 458-59 (7th Cir.2003) ("We may not justify the search after the fact, once we know illegal activity was afoot; the legitimate expectation of privacy does not depend on the nature of the defendant's activities, whether innocent or criminal.... If this were the case, then the police could enter private homes without warrants, and if they find drugs, justify the search by citing the rule that society is not prepared to accept as reasonable an expectation of privacy in crack cocaine kept in private homes.").
It may well be that a compelling case can be made for an exception from chapter 934's statutory exclusionary rule for recordings that provide evidence of criminal activity — or at least certain types of criminal activities. But the adoption of such an exception is a matter for the Legislature. It is not within the province of the courts to create such an exception by ignoring the plain import of the statutory text.
McDade's argument that the trial judge erroneously permitted the boyfriend to testify about inadmissible hearsay statements is reviewed under an abuse of discretion standard. "A trial judge's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. The trial court's discretion is constrained, however, by the application of the rules of evidence and by the principles of stare decisis." Hayward v. State, 24 So.3d 17, 29 (Fla.2009) (internal citations omitted).
In Penalver v. State, 926 So.2d 1118, 1131-32 (Fla.2006), the Court explained that:
Here, the boyfriend's testimony that the stepdaughter "told me that she was being raped when she was younger" was hearsay.
The Second District concluded that the boyfriend's testimony was offered not to establish the truth of the matter asserted by the stepdaughter but to show why the boyfriend assisted the stepdaughter in making the recordings. See Krampert v. State, 13 So.3d 170, 174 (Fla. 2d DCA 2009) (concluding that out of court statements were not hearsay when they were introduced to explain subsequent conduct rather than to prove the truth of the matter asserted). Given our determination that the recordings were not admissible, this justification for the admission of the stepdaughter's statement collapses. The boyfriend's explanation of why he assisted the stepdaughter in making the inadmissible recordings is totally irrelevant. The State asserted no other basis in its brief to this Court for admitting the testimony. Therefore, the trial court abused its discretion in denying McDade's hearsay objection.
We thus conclude that the recordings should have been suppressed under section 934.06, and the boyfriend's testimony should have been excluded. We answer the rephrased certified question in the affirmative, quash the decision of the Second District, and remand this case to the Second District to reverse McDade's convictions and sentences. McDade is entitled to a new trial.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.