The Child Recorded Him Coming Into Her Bedroom Again..HIS PRIVACY RIGHTS WERE VIOLATED?! 😳

追加: 2026-05-14

[00:00:00]Hi guys, this is Vicki and welcome back to Courtroom Clapbackags.

[00:00:05]Today we are headed to watch a crazy debate in Okaloosa County, Florida, where a 13-year-old girl recorded the adult, I'm not positive um if it was her dad or or someone that lived in her house. It was definitely someone who who was in that house. But she recorded this defendant because she knew he would come in to abuse her again into her bedroom.

[00:00:38]Now, the defense is arguing to the judge that the defendant had privacy rights that were violated when he was in that child's bedroom because there is a law um that says if uh okay, it says recording someone in a place where they have a re reasonable expectation of privacy, including like bathrooms, bedrooms, locker rooms, etc. So, this is the rule, the law that the defense is arguing that every bit of whatever evidence is on this recording has to be suppressed and cannot come into the trial because the defendant's rights were violated. So, can you even wrap your brain around this argument?

[00:01:35]So, we're going to listen to the defense and the prosecutor arguing before the judge and the judge asking questions.

[00:01:43]The judge is going to have to decide whether he agrees with the defense. And if he does, this video is going to be thrown out. It won't it won't be able to be brought in as evidence. So, it's an it's an interesting debate. So, we are going to head into the courtroom, guys.

[00:02:03]Get your popcorn. Get ready. Drop your comments. I want to know what you guys are thinking.

[00:02:09]And court is now in session.

[00:02:17]All right. I'm just going to set the table here. This is State of Florida versus Damon Richard Becknell 2020 CF000010.

[00:02:24]We're here on the defense's motion for reconsideration of a motion to suppress.

[00:02:31]>> That's correct.

[00:02:32]>> All right. And >> uh from a housekeeper housekeeping perspective to hopefully speed up this process, Miss Boso and I've had a couple of conversations.

[00:02:40]>> Okay.

[00:02:40]>> I think for the purposes of this hearing, uh there are I have provided the court and I told Miss Boso that I you filed for the court the original motion memorandums filed by me, third party and uh Miss Boso.

[00:02:56]>> Okay.

[00:02:56]>> Uh the original court order the full transcript from the hearing. uh the court had requested that information at our last at last discussion. So I was >> and then you can probably tell about what time I started reading that because I had to email your office to say, "Hey, none of these files will open."

[00:03:10]Yesterday at about 3:30 or 4:00, I think it was >> files what >> would open. Your your office sent me new copies.

[00:03:17]>> Okay.

[00:03:17]>> And and all of these things I believe are in the court record anyway, but it it always helps when y'all send them to me so I'm not searching for them, especially when some of them are three years old or more.

[00:03:26]>> I was just trying to put it in one spot.

[00:03:28]>> I always appreciate it. Yes, sir. Yes, sir. So, I I bring all that to uh because after reviewing some case law and discussions with Miss Boso, procedurally, I think what we would like to do is probably uh consent and stipulate to the court reviewing all of those things. One >> Well, that's good because I already did.

[00:03:48]>> Well, good, good. two um that uh that the after our discussion we believe I mean if the court needs a new evidentiary hearing the court will do whatever the court says but we have no reason to believe that the testimony would be any different from those witnesses in the transcript or the affidavit and I believe Miss Boso and I have stipulated to all of the documents that I have provided being viewed by the court and considered unless the court wants more information.

[00:04:19]>> And additionally, your honor, the court originally did uh have the benefit of the child protection team interview. The CPT judge Stone also was able to review that.

[00:04:28]>> Was that part of the hearing?

[00:04:30]>> It was I believe he uh indicated that he was going to review that. There was testimony regarding that, but uh if the >> I don't remember there being testimony.

[00:04:38]I remember >> questioned about it. Um but there was not the CPT was not played for him. No, your honor.

[00:04:45]>> Okay.

[00:04:45]>> Yeah. I I I believe that the court filed >> a notice of intent to review that. I believe that's what Judge Stone I objected to that and I don't >> I thought that was whether or not he was going to consider some testimony from a previous hearing. That's the way I read it in the order.

[00:05:01]>> You know, but I don't remember any CPT being reviewed.

[00:05:04]>> It wasn't part of the court file. So, if the court does believe that that is somehow part of the consideration, we we don't know if you have it.

[00:05:11]>> I definitely don't have it. I don't have any videos or audio or anything related to this case.

[00:05:17]>> Whatever would have been originally reviewed in the hearing, we have no that's what the court's here to reconsider.

[00:05:24]>> And he would concur, your honor, that whatever's been previously uh considered by the court, placed before the court. I believe with the addition of uh Mr. Cotton did provide an additional affidavit on behalf of the victim. I've read that >> that's the basis for this. U but the state also agrees that we have no objection to the court considering that which was previously before the court.

[00:05:44]>> Well, I'm reading this is what I'm reading from um the previous order from Judge Stone when it was his case and that's what you're asking me to reconsider. Says the court has considered the motion record the testimony and arguments presented at the hearing on the motion the filings of the parties including defendants's memorandum of law. I'm not going to put give all the dates here. defendants's memorandum of points and authorities, the state's rebuttal, defendants's response.

[00:06:12]Um, the court has also consider the nonparties memorandum of law in support of defendants's motion to suppress.

[00:06:20]And that seems to be it. There is that footnote about um that says on April 17th, 2023, this court entered an order requesting additional briefing from the parties regarding the court's intent to consider the alleged victim's testimony presented on February 6th of 2023. So about 9 days before this hearing uh at a hearing concerning the state's notice of intent to rely on child hearsay on May 15th, 2023, defendant file an objection regarding consideration by the court of that testimony when ruling on the motion and rendering the present order. This this court has in italics not consider the testimony from February 6 of 2023. I don't think I have that. It might be in the court file somewhere, but I didn't see it and I haven't considered it.

[00:07:05]Thank you, Judge.

[00:07:05]>> State would then agree, your honor, based on the fact that the judge Stone did not consider it, made it very clear that he did not, then the court does not need a copy of that.

[00:07:12]>> Okay. The only other thing I would say, and I'm a little bit on the fence if I should say it, is um previous court had um talked about some of the testimony specifically.

[00:07:32]Um but on the very top of page six of seven in the analysis section, Ken.

[00:07:47]>> Yes. I'm trying to get rid of it.

[00:07:54]>> USA gas prices.

[00:07:56]>> Go away. There it goes.

[00:08:00]>> Gone.

[00:08:02]>> I think so.

[00:08:03]>> On page six of seven, it says, "It is notable to this court that the witnesses referring to the alleged victim in the case. The witness's testimony regarding the events at issue in this case appeared carefully guarded. The witness appeared reluctant to provide details regarding the events of December 23rd, 2019. However, the court has ascertained based on the testimony that as a result of a quote altercation unquote with defendant on December 23rd, 2019, the witness has was placed in fear of physical abuse from him. Moreover, her testimony indicates that she had also been in fear of physical abuse by defendant in uh emphasis before December 23rd, 2019.

[00:08:44]Um so that seems to me without exactly expressly saying it that is um previous court's analysis of credibility issues as far as viewing and listening to that testimony where I'm just reading a transcript.

[00:09:06]So my concern, not concern, but just to kind of put it out there is those decisions by the previous court, I'm not sure I can really address credibility issues. It's like asking an appellet court to do it based on a transcript.

[00:09:21]So how could I possibly do that? And I don't think I even have access to courts smart of something that long ago unless I ask if it's somehow I would assume it is archived somewhere.

[00:09:38]Go ahead, Mr. I just want to let the court know.

[00:09:41]>> Yeah, you're good.

[00:09:42]>> So, if if the court has concerns about the credibility, >> I don't have concerns, sir.

[00:09:49]>> What I'm saying is you're asking me to reconsider something I don't have necessarily access to. So, I don't know if that's a concern for either of the parties. Um, but for me to give any sort of um credibility analysis, which I believe that paragraph I just read is without saying so talking about reluctancy to to say things carefully guarded.

[00:10:15]I don't know how it was said. I'm all all I'm reading is a transcript just like an appellet court would.

[00:10:22]>> Well, and I would agree that that seems to imply what the court is sensing. Uh I think um there's two ways.

[00:10:32]>> Obviously I have multiple ways to address that. One the court could set another evidentiary hearing on the matter and hear the testimony if the court were to.

[00:10:38]>> So at that point we're having a rehearing instead of a reconsideration >> would be judge. Um however you know I think while part of the issue with credibility has been and when there is first the credibility of that witness was a witness called by the state not by the defense.

[00:10:56]>> It was the alleged victim in the case.

[00:10:58]which I believe is also what the the judge is referring to in that order. Uh so we could I mean I think the affidavit cures any nervousness or things of that nature that may have been while sitting in a courtroom as a minor. Uh whether I mean what was said was what was said and the evidentiary standard is the evidentiary standard. I don't know how to cure a credibility question without either letting the court hear or the judge, this court saying, "Hey, what's said is said, what is now in this new affidavit supporting and clarifying any questions about that is now on record?" Um, >> well, isn't that for the court to consider? is do I think a subsequent affidavit which although signed off by a juvenile may or may not have been written by the juvenile and does that comply with what she said not complied but is it consistent with what she said or is it something that was done after the fact to clean up the the issues >> and and I do believe the court consider that one I think at the time of that affidavit she's no longer a juvenile to the extent that that assists the court in that understanding ing uh that she was an adult. Um and uh so yes, I I believe all those are concerns. I'm not sure the best way to proceed for the court to be able to reconsider the ruling or if it needs to be a rehearing on that matter.

[00:12:28]>> Well, we're here for a motion for reconsideration.

[00:12:31]So, I can address that. If you're asking for something different based on what's being discussed, then you're going to have to do that. Um, but I simply brought it up because um of there's some concern about what I may have seen or not seen and I want to make sure that uh although I've read the transcript from February 15th of 2023, I did not have the benefit of watching a video or audio recording of it.

[00:13:00]And at that point, how how do I potentially disturb that issue from the predecessor court if if if I don't have anything to to base that on, >> judge? And I I don't I can certainly and I'll be honest, I'm I do not know if I have an audio or the court smart recording of that or not. As far as I I presume that the transcript came from that frankly there was not a so um risk of additional delay on a very old case. I certainly don't mind attempting to locate that and provide to the court.

[00:13:37]So the court >> well I'm not asking for it. I'm just telling you I'm not going to consider an issue that I would have had to be there for. I'm not going to disturb Judge Stone's findings on that particular issue. I think under the circumstances I would like the court to be able to make its own findings based on what it hears as far as how much leeway it would give to >> and at what point is this going to stop Mr. Cotton? This is a six-year-old case that you're asking me to reconsider something that's from over three years ago.

[00:14:09]>> And I understand but in fairness, >> we're here for a motion to reconsider.

[00:14:14]Are are you prepared to go forward with that? All right.

[00:14:18]Go ahead. Uh, your honor, may I have the podium?

[00:14:22]>> Yes, please.

[00:14:22]>> Thank you, >> your honor, for timeline. Just so the court knows what to expect from council, I expect this 10 or 15 minute disc uh, if that's okay with the >> Yeah, take your This might be the the smallest 2:00 docket we've had in quite some time.

[00:14:44]>> I try not to use it all just because it's there.

[00:14:45]>> Please do. There are other cases still.

[00:14:47]>> I do. I do, Judge. Judge, obviously we're here before the court on a motion for reconsideration before the court. U the original court has already and I believe that the scope of this hearing, the original court has already made a determination that the recordings at issue constituted unlawful interceptions of protected communications. The sole basis for what we're asking the court to reconsider today was whether or not the court's conclusion that the testimony as the court in its order said suggests prior abuse or fear existed before December 23rd, 2019.

[00:15:22]Respectfully, the court uh the finding is not supported by the actual testimony presented at the hearing. It's contradicted by the affidavit uh the post-hering affidavit prepared uh or provided by uh the u child in the case uh and does not satisfy the state's burden of proof on a motion to suppress the evidence instead establishes after review of the transcript in the affidavit the camera was installed months before the incident for unrelated reasons operated continuously 24 hours a day automatically recorded motion and sound recorded even when the child was not in the home and was installed because the child and was not installed because the child reasonably anticipated physical violence. That's simply not what the record and the testimony reflect. Under Florida's wiretap statute, we believe suppression is mandatory in this case. Obviously, the court is aware that the wiretap statute is strictly construed.

[00:16:20]uh no part of the contents of such communication and no evidence derived may be received in evidence unless there is an exception. Uh the court has already determined that they were protected oral communications uh I'm sorry the prior court your honor uh intercepted without consent inside the defendant's home where he had a reasonable expectation of privacy. The exception under 934032k is narrow. It applies if the child is under 18. the child is a party to the communication which there are some that she is and some that she is not uh in in the videos that have been provided. Uh and and most importantly and really at issue in this case judge is that the child has a reasonable grounds to believe the recording will capture statements that another party intends to commit is committing or has committed an unlawful act of physical violence against the child. This is a narrow statutory exception. Uh this was enact enacted after which the court is probably familiar with the McDade case that brought up this. However, it is not a blanket authorization for continuous secret surveillance inside the home. The states filed to prove a pre-existing reasonable grounds. The witness specifically testified the only time she had fear arose was because of the event on December 23rd. The state asked and and the court has probably seen in the transcript. Did you tell Miss Jacobs the CPT officer? This was asked of the child. You were in fear of physical abuse by your father. She answered because of the event that happened that night.

[00:17:54]Further, that night was when I had fear against my dad. And finally, I'm talking about the night of the 23rd. The only other testimony in this case was from my client. He testified that there had never been any child abuse that every in the home. The housekeeper never any child ab never observed any child abuse in the home. There was no no there was testimony from uh the uh child which is plethora of and we will get into throughout but no child abuse in the home.

[00:18:26]Uh there was no testified from any mother, father, aunt, grandfather, all people heavily involved in this child's life that they had ever seen any child abuse in the home.

[00:18:37]Uh the testimony repeatedly established uh affirmatively that any alleged fear in this case arose only on December 23rd, not before. Even if the current fear of her father satisfied the requirements, being on the 23rd, the statute would require reasonable grounds before the camera's installed, not a 24-hour, 7-day a week recording camera for months. The court's finding that testimony suggests prior abuse does not satisfy the state's burden. And I use the word suggest because that's the word that's quoted in the order is that the court said it suggests prior abuse. The original order states specifically suggests an event or events concerning abuse from defendant took place prior to December 23rd, 2019.

[00:19:26]Respectfully, your honor, testimony that merely suggests something may have occurred is not competent, substantial evidence sufficient to satisfy the state's burden. The evidentiary standard is not speculation. It's not implication, possibility, or inference stacking. The state was required to affirmatively establish the statutory exception through competent substantial evidence. A suggestion that something may have occurred is not proof. The testimony never established prior unlawful violence or reasonable grounds to believe the recording would capture unlawful violence. The witness only referenced in her testimony at the hearing discipline. The witness testified, "I was kind of upset at how my dad disciplined me." Florida law expressly recognizes lawful parental discipline. The testimony never identified from any witness and certainly not from the vict alleged victim in the case unlawful physical violence, no prior abuse, no criminal conduct, no threats, no anticipated unlawful force. Nowhere in the transcript is that present. The state elicited no testimony establishing prior unlawful violence before December 23rd in their u questioning of the witness to justify the installation of a recording device that records in violation of this statute automatically every day 24/7 since installation.

[00:20:50]In addition, the testimony is on 1223 she had fear. No testimony that she that there was unlawful violence. No description of the act was testified to.

[00:21:03]The court's ruling improperly relies on stacked inferences. The ruling effectively stacks multiple unsupported in inferences. First, inferring prior abuse from generalized reference to discipline. Second, the inferring that such contact created reasonable grounds to anticipate unlawful violence. And then third, inferring the camera was installed because of anticipated violence when she said the only reference to any fear was on the day of the event, the last day, not the day it was installed and not even close to the time or date of install. But none of the things that would be required to show that were test to show uh that the exception would apply were testified to.

[00:21:45]The camera was installed for reasons unrelated to unlawful violence. The witness testified in the transcript. I put the camera in the room to catch a ghost and I believed housekeepers were stealing. The witness further testified, "I intended for it to run 24/7, 7 days a week. I wanted to live with my grandpa and find a reason to move."

[00:22:08]These stated reasons are fundamentally inconsistent with the statutory purpose required under 93403 subsection 2K. uh the camera uh wasn't was not installed because the child reasonably nowhere did she testify that she reasonably anticipated unlawful physical violence.

[00:22:28]The recording system itself falls out the the legislative purchase of the ex the per excuse me judge purpose of the exception. First of all, it's continuous passive surveillance. The evidence established 24/7 recording sound in motion activated only. No physical activation. U she did not have to physically I'm going to try to record what I believe is coming up as violence.

[00:22:53]um recorded ambient conversations recorded even when the child's absent.

[00:22:59]Some of the testimony relating to that was it it would record anything whether you're home or not. Response: Yes. And nobody's in the room. It's sound activated and can pick up anything it could hear. This was indiscriminate continuous surveillance. It is not a targeted interception as required by the statute. Your honor, McDade ultimately was over what the law changed based on the McDade case as the court's aware, but it tells you what type of recording is anticipated or acceptable for the court to look at and McDade that >> what tells me that McDade.

[00:23:36]>> Yes, sir.

[00:23:36]>> How does McDade tell me what a subsequent legislation?

[00:23:39]>> No, I'm sorry. I believe that that the statute that it's based on >> Mhm.

[00:23:44]>> that that the that the statute is based on what happened in McDade that court over a granted a motion to suppress. I understand what you're saying in that the the the law change is a reaction to McDade, but it what's written in McDade doesn't necessarily imply some sort of specific intent by the legislature to combat only that particular issue >> or they could make a broader legislative amendment to a statute to say we want to cover what happened in McDade, but we also want to cover other things. Could it not?

[00:24:16]>> They could. They could, but I don't think that was the intent in that case as the court's aware. I'm not concerned about the intent. I'm concerned what the law actually says.

[00:24:26]>> I understand.

[00:24:27]>> Okay.

[00:24:27]>> Okay. In that case, the child personally activated device, concealed it under her clothing, intentionally entered her bedroom, and specifically sought to catch and catch capture anticipated sexual misconduct at the time of the recording. That was not I'm going to put up a camera for months for another purpose and hope maybe I catch something else. It was targeted. It was limited in duration. it was intentionally activated and it was directly tied to anticipated unlawful conduct. We have none of those in this case.

[00:25:00]The prior court's interpretation creates an unlimited surveillance exception in this case. The court the art the practical effect of the judge's ruling is extraordinarily overroad. Under the prior court's interpretation, meaning the order we're here to talk about, a child could install a recording device anywhere inside a home for any duration of time, recording 24 hours a day, recording all persons and guests and family, recording even when the child's not home. And later simply claim, I intended to capture physical violence at some point in the future. There was no testimony that she installed that for to capture physical violence or had any reason to believe it was coming.

[00:25:42]in the in the transcript or in the affidavit.

[00:25:47]The the interpretation effectively eliminates any limitations and takes what's supposed to be a narrow exception and made it extremely broad.

[00:25:55]The prior ruling creates no limiting principle. How long can a court how long can a camera remain installed? What's reasonable? A day, a month, a year?

[00:26:04]Where can it be installed? A bedroom, a bathroom, any private area of the home? Does it matter if the child's present or not as it's recording every single thing that walks or sounds by it? The interpretation transform a narrow statutory exception into an unlimited immunity for secret household surveillance. And as an example, and I'll take it a little more extreme.

[00:26:26]What if a child alleges a prior act of violence occurred in a bathroom? And it always happens in the bathroom. And then they decide, well, to capture that, I'm going to install the camera in a bathroom that records all the time, seven days a week, 24 hours a day, every sound and movement, adults, family, children, guests, intimate private activity, people using the restroom, even when they're not there. Under the prior court's ruling, these interceptions would apparently be awful if they just say that's where it happened and I installed it for the purpose of because I reasonably believed one day it would capture that. This was not something that was installed the day before, the day of, even the week before.

[00:27:11]The prior ruling effectively creates a retroactive immunity.

[00:27:21]Judge The reason for the motion for reconsideration is primarily the in addition to the transcript, there's an affidavit that we rely upon for the court to consider that that was filed or provided by the child to clarify her position and what her test what she believed she was testifying to. The updated materially undermines the premise and it stated, "I did not testify, which is fact, that there was any prior physical violence or child abuse, nor was I asked. It was also not installed to capture any statements or communication made to me or by my father or anyone else about unlawful acts of violence because I had no reasonable grounds to believe it would capture such statement."

[00:28:07]the camera recording 24 hours a day, 7 days a week, even when I'm not home.

[00:28:15]I can't think of any statement, frankly, that makes it any more clear that the exception does not apply.

[00:28:21]>> This is your affidavit after the court's ruling. Right.

[00:28:24]>> It was, Judge.

[00:28:25]>> So, how am I to reconsider that? Well, the state stipulated to you considering that the affidavit is important because the prior order departed depended completely on an inference rather than direct testimony. Your honor, ultimately in this case, the state has failed to meet its burden. The ant the testimony was ambiguous. It's based on inference and speculation. It's based on suggestion.

[00:28:54]Uh the testimony that merely suggests something may have occurred cannot satisfy the burden to absent substantial evidence establishing the statutory exemption. Suppression should be mandatory.

[00:29:11]And just to close, judge, the camera was installed months before the incident.

[00:29:16]Unrelated reasons operated continuously automatically recorded every single thing that it heard or saw. recorded even when the child wasn't ab was absent and not present. And it was installed because the child never because the child did not anticipate any awful physical violence. In other words, it was for the ghosts and housekeeper stealing from her. Never was there a statement that was said or even implied that it was installed for any other reason in the testimony. We'd ask the court to grant the motion to suppress on reconsideration. Thank you.

[00:29:51]Judge, may I have a moment, >> Judge? as a as a it is my understanding and this the court's probably already aware uh obviously uh you know this information was internetbased it was not on a local drive it was not on that anybody who had a code had access to this I think that's important >> where is that in the record for this position >> thank you all >> and your honor I do believe that the court already has the benefit of the state's previously filed called rebuttal response to the defendant's motion to suppress. Is that correct?

[00:30:47]>> Yes.

[00:30:47]>> So, the state's not going to go over every one of those arguments, your honor, because we do believe they are still valid arguments based on what is before the court. As the court is aware, there is an exception under 934.03 03 subsection 2K that does allow a child to place a recording device, whether it's a camera or an audio recording device, uh, in an area where they believe it is reasonable that an act of physical or sexual violence would occur against that child. that exception is there and that was specifically I guess crafted is a good way to put it to allow potential victims of sexual abuse or physical abuse to have an avenue to carry that to to capture that if they're in fear and the state does believe that based on the circumstances of this case that it the victim's placing of the cameras does fall under that exception.

[00:31:42]She placed the camera in her bedroom where she had a reasonable belief where the abuse would occur, where the physical abuse would occur and that was a narrow area. It was just in her bedroom. There was testimony as the court noted in its order that the camera was a sound activated device. So that is also reasonable because it is activated by sound to capture incidents that were occurring in the child's bedroom.

[00:32:08]And most notably, your honor, when I was questioning the witness during the hearing and asking her about the placement of that camera, I referred her back to the CPT interview that she did with Shelley Jacobs, basically trying to listen to testimony about why the camera was placed there. And I asked her, I said, "Okay, did you tell Miss Jacobs that you had you had been previously abused and you were afraid of him because of that, him being the defendant in this case?" And she said, "Yes, I did tell her that. But at the time, I was almost 14 years old, kind of upset about how he disciplined me, but yeah, I did tell her that." So, your honor, we did have the testimony before the court that the child was actually in fear at the time she placed the camera and she was in fear of further abuse. And we believe that is valid as to the child's feelings at the time and we ask the court to certainly consider that. We do believe that the placement of the cameras was legally done because it was intended to capture physical abuse in this case. It does fall into the exception and we're asking the court to deny the motion for reconsideration and the motion not to grant the motion suppressed.

[00:33:19]>> Okay. All right. I've got some questions. All right. Let's start off if y'all have your um transcript from the hearing. And um I know in at least one of the pleadings there seemed to be a mixup on page numbers. So I'm going based on the page number that's on the top right hand corner of the transcript and I'm going to page 10.

[00:33:44]>> Get that pulled up.

[00:33:45]>> That's fine.

[00:33:49]I think maybe someone was citing the page number of the document which probably had a notice of filing or something on it. So, some of the page numbers were a little bit off but it's page 10 as it's listed on the actual pages.

[00:34:21]Judge, I'm familiar with the transcript unless you specifically.

[00:34:24]>> So, just to get down to the bottom of so line 17 is when u the state took over for a further examination of the alleged victim says uh question. I won't use the child's name again. We we just want to clarify some things. We don't want to assume anything. When you said the events of that night, what did you mean by that answer? I meant that that night was when I had fear against him again.

[00:34:54]Specifically, I read that as in addition to the fear from the night that this happened that I had previous fear based on the word again.

[00:35:07]Neither side has cited this uh particular quote. So that's why I'm asking the question.

[00:35:13]>> So feel free to sit there if you want and just make sure you're at the micro. If you stand there, it's going to be harder to hear you.

[00:35:20]>> Whatever the court would prefer.

[00:35:22]>> Either sit where you're at or stand at the podium, but don't stand at the >> easier to not walk back and forth, judge, if it's okay with the court.

[00:35:28]>> That's perfect. I just wanted to make sure you're at a microphone that's close to you.

[00:35:31]>> Yes, sir. So first, I don't believe the standard is if I have fear. It's whether I installed a camera at the time to capture future physical violence. It is not the fact that I'm in fear tonight. Fear is not the standard that is in the statute.

[00:35:49]Fear is nowhere in the statute under the exception. So the the my position with regard to the term of I had fear that night, fear of this event or fear at a prior event does not satisfy the standard of the statute requiring under subsection K.

[00:36:14]The child is a part of the communication has reasonable grounds to believe that recording the communication will capture a statement by another party. Nowhere does she say that she installed that camera for that purpose. So, the fact that she had fear of the situation that evening or fear at any time prior in her life does not satisfy the statutory exception that she installed a camera with reasonable grounds to believe that the recording would capture a statement by the defendant of either past, present, or future physical violence. So, why I understand the courts Okay. Okay. Well, that means that she's been in fear before. In theory, basing the word again, that doesn't satisfy the statutory requirement that that's the reason why the camera was installed.

[00:36:59]>> Could fear Could fear of previous violence occurring again be reasonable grounds as to why it might happen again?

[00:37:07]>> Could fe I'm sorry. If if if someone has fear of previous actions of physical violence >> from a previous act >> from a previous act, couldn't that fear be and and and the fear of those previous acts that have occurred in that person's opinion be those reasonable grounds as to why that recording could record a statement about someone the other party intending to commit, is committing, or has committed. an unlawful sexual act or unlawful act of physical force.

[00:37:42]>> I think that could be the precipice for their reason if that was the reason why she said she installed it. I do not believe that's a oh because she said I've been in fear before justifies a reason that she didn't say was the reason why she installed the camera.

[00:37:59]>> Okay. So the reason that she installed the camera according to the testimony is to capture ghosts, right?

[00:38:07]and um whether or not the housekeepers may have been stealing things from her room.

[00:38:12]>> That's correct.

[00:38:13]>> Is there any intent in either of those things to record communications?

[00:38:18]>> I don't know that I could say yes or no.

[00:38:20]>> Okay. Well, if someone has a video camera that's intended to record people conducting or some paranormal activity conducting some sort of activity, um, is there some intent to to to record the conversation if there's no conversation?

[00:38:45]She said she wanted to record whether or not a housekeeper was taking something from her room. So there was is there intent to record a conversation?

[00:38:52]>> I think if it's >> or communication sorry communication >> whether or not there was an intent to record under this rule is there period because she's not intending to record.

[00:39:03]She's hoping Google records something or Nest records something. she is not initiating any recording which is a whole another issue we have with the whether or not she's complied with the exception because it's initiating that recording believing and that's why I know the court had a maybe a different look or take on McDade but in that case somebody intentionally recorded the conversation to try to capture exactly what this statute outlines >> how is McDade relevant if it's it predates the the exception And that that is the crux of this case.

[00:39:40]>> I believe it's relevant because it's the reason why the statute was created and the facts were considered in creation of the statute >> and that was my question.

[00:39:49]>> If the legislature looks at a Supreme Court case opinion and says we should change the law because of that opinion, it does it relatively frequently.

[00:40:03]Does that limit what their intent is when they change the law? Or can they say, "You know what? We've seen that opinion. Now that we're thinking about it, we want to change. We want to add more to it. We want to make more ex a bigger exception than would be needed to change the McDade decision."

[00:40:22]>> I think they absolutely can.

[00:40:23]>> Okay. So why am I limited uh in some way to the McD day decision as to what their intent was in some way >> other than I think it gives guidance on why they made the rule. You are not limited to that in my opinion. However, >> I'm not terribly concerned about the legislative intent. I'm concerned with what the words say. And what the word says is are there reasonable grounds?

[00:40:46]And if someone says they have fear again, are those reasonable grounds that it could happen again?

[00:40:55]Judge, I I've >> I I hear what the court's saying.

[00:41:00]>> I have a hard time believing that the legislature said, "Just record everything in your house for as long as you want, and hopefully you'll capture something as the intent of h what this statute is. It just lets someone record 24 hours a day, 7 days a week, frankly, in hopes of potentially cap capturing something. Even if we give it the meaning of prior fear, that does not give someone unlimited ability to record everything that happens. I don't believe that's the intent of the statute. I don't believe that's what the statute says. So you're saying what the statute says is if a child wants to record a person who may be making commentary or a communication about um having committed a crime, is committing a crime or is about to commit a crime.

[00:41:49]They have to be ready with some sort of device to turn that camera on as soon as they think it's coming.

[00:41:56]And I know the court has a different opinion about the McDade case, but in that case, she solicited it attempting to get the evidence. I understand that's a different story. However, what I'm saying is I think there has to be some time limitation. It can't. How can >> we just say the C child can record forever?

[00:42:15]>> Let me ask you this, Mr. Cotton, because you keep talking about how I have a different interpretation mcdate. I don't think we're talking about an interpretation of McDate. I'm talking about how it's relevant to this particular argument.

[00:42:25]>> I meant the statute judge. If I said McDade, I apologize.

[00:42:28]>> Okay. Well, McDade says uh or McDade is about some basically a child kind of surreptitiously or clandestinely recording someone on purpose and then the law changes to say um subsequent to that to say um if you have reasonable belief that it's going to happen. that the legislature didn't say um in the statute change that if the child is going to try to conduct its own investigation and try to um solicit some sort of confession, it didn't limit it to those things. So, it didn't limit it to exactly what McDade was about. Right.

[00:43:08]>> Correct.

[00:43:09]>> The legislature made it broader than that.

[00:43:14]So that's what I'm saying as far as what McDade is specifically about does not limit what the legislature can then following then do in my opinion in reading what they've put here goes beyond what McDade was about.

[00:43:27]>> Okay.

[00:43:28]>> Just want to make sure it's it's clear what I'm saying.

[00:43:31]>> Yes, sir.

[00:43:32]>> All right.

[00:43:41]What about the video issue that the fact that it's video? Is there any argument on from either side that the audio is out but the video stays in? I I think the state made that argument at some point during the hearing >> they did but I think the court has already ruled it's one I think I provided a case or case law at that time.

[00:44:03]>> Well, has the court ruled that? I think the court ruled that based on the order, judge, the court had already ruled that it was and and I'll pull it up. I'm sorry, Judge. Order up. In in the order, the court stated uh that I believe the they all fell under the wiretap statute. And the question is whether or not it was comes out from under that as an exception. And I'll find the exact language if the court will give me a moment.

[00:45:56]Judge, I think under page 507 analysis at the beginning, the cordings that issue in this case are the type of communications governed by the above statutes. The events occurred in the defendant's home. The defendant had a reasonable expectation of privacy in the home. Further, no party disputes that the witness was a child under the 18. based on the circumstances, the outcome of the present motion turns on whether the exception set forth in 93403 applies to the case. So I think by the language there, the court has already determined that the videos fell under the wiretap statute. This is whether or not the >> aren't you asking me to reconsider the motion or the order?

[00:46:34]>> Judge, I think we stipulated that all we're trying the only thing is whether or not the exception applies before the hearing.

[00:46:49]Is that the stipulation, Miss Bosa?

[00:46:54]Your honor, we had previously argued in our response, let me sit back down, that if the court did not find that it fell under the exception that the court should just set aside basically the wiretap statute and and basically look at it in terms of just being the video recording. But in this case, your honor, um we believe that we are the agreement is whether or not that statute applies to the entirety of the recording.

[00:47:23]So that would be the audio and the video if I answered your question.

[00:48:30]in in reading your motion right on page five right above conclusion >> I'm sorry >> page five of your motion >> yes sir >> that paragraph right above where it says conclusion >> judge motion to suppress or motion to >> the motion to reconsider The defendant respectfully requests this court to reconsider its ruling on defendants's motion to suppress using McDade as proper guidance and controlling authority as to the types of recordings and interceptions that were the basis to the creation of the statutory exception delineated in Florida statute section 934.02.

[00:49:09]I think that should be 03, right? 2K.

[00:49:20]Right, judge. I'm asking whether or not the exception should apply.

[00:49:24]>> No, you're you're asking me to use McDade is guidance to say whether or not basically the b the creation of the statutory exception is because of McDade. And I agree mcdate is what led to it. It's reaction to McDade, but I don't think it's limited by McDade.

[00:49:40]>> I understand the court's position. I don't disagree.

[00:49:45]Right.

[00:49:47]To the extent it's the court is considering a difference between audio and video. Do you want to make an argument, Mr. Cotton?

[00:49:57]>> Judge, >> I'll go back and listen to the uh stipulation y'all made, but I didn't realize you were trying to limit it to >> I would like to make that argument in writing. I that that I was not under the impression with my conversation with Miss Boso that we were disputing whether or not any of the videos had already been suppressed and that this was an exception to the rule issue based on the prior court's ruling.

[00:50:32]All right, Miss Boso, do you have any issue with any sort of future um written responses based on the court's questions?

[00:50:41]>> The stat the state does not. Your honor, I just want to be clear that the court's question I'm not sure if Mr. Cotton is answering the same question as I understood. So, I just want to be sure.

[00:50:49]I think the court is asking that >> Well, let me make sure the court is clear then.

[00:50:55]>> Okay. Thank you.

[00:50:56]>> It sounds like y'all have limited the arguments based on your discussions.

[00:51:00]where the court prepared based on what the motion says. So, if you've changed the rules of the what we're here for without informing the court ahead of time, how do you expect the court to prepare for what y'all have discussed outside of its presence as to what the real issue is? When you ask me to reconsider something, I'm to reconsider the the entirety of it.

[00:51:26]I don't see anything in your motion that limits anything as far as if I feel there's a difference between audio and video, which was argued at that hearing, that I could reconsider what the court may have considered back then, and say, I believe the video is not part of the communication, and therefore, we don't even have to talk about the exception because it's just video, not communication.

[00:51:58]I've done the research. I haven't found anything that really stuck out as far as differentiating between the two other than um a concurring opinion by Judge Bilbury in a dependency case.

[00:52:11]>> Um which is the KJ versus Department of Children and Families. Just to put it on the record, 297 Southern 3rd 707.

[00:52:20]Um obviously we all know Judge Bilbury.

[00:52:22]We probably at least the two lawyers and and and the court have all practiced in front of Judge Bilbury when he was one of our local circuit judges and county court judges, but often writes concurring opinions that it point out exactly what I'm looking for in a case. But I I I would concede it's it's not uh uh doesn't have any presidential value because it's a concurring opinion, but it's certainly persuasive. In that in that particular opinion, he states uh no doubt cell phone recordings play an everinccreasing part in civil and criminal cases and therefore interesting questions are raised by the application of chapter 934 Florida statutes to cell phone recordings. Such recordings generally contain a visual as well as audio portion. But by its explicit term, section 934.06 applies only to an oral communication, i.e. something uttered or a wired transmission, i.e. oral oral transfer and that's a u r a l. So basically regarding something you hear um transfer. Um, so again, I' I've did research on it. I couldn't find any case that talked about video and unless it wasn't related to this particular issue. I think there's some I think there was one case that was cited. Is it Calhoun that was cited by the defense at some point, but I think Miss Bos the state had also argued it at some point, but it's from 1985 and pre-exists the statute. So, I I don't think it was really relevant to the analysis here, but have y'all seen anything that talks about 93403 or 06 in the video context and whether video is so intertwined with the audio that's with it that you can't use one without the other.

[00:54:29]>> Judge, >> I don't think it exists.

[00:54:32]>> I'm I'm not I don't I can't remember if it is or not, frankly. Judge, the research that was done on this case was in-depth over a very lengthy period of time. Obviously, as you can see by how it's been litigated previously on the motion. Uh, so >> we also have the benefit of more than three years of potential case law that's come out since and there hasn't been anything that I've seen.

[00:54:52]>> Um, judge, I I am happy to research that and provide a memorandum to the court on that. I can certainly have that done, I would think, by next Friday. Um, so it would not be lengthy if the court believes that that is an issue that needs to be considered. Okay.

[00:55:08]>> I'm happy to provide.

[00:55:09]>> And if you want to put anything in there about how you think that's beyond the scope of what the court is allowed to do in a motion for reconsideration, I'll certainly read that.

[00:55:27]All right. Any other oral arguments?

[00:55:48]>> Not oral arguments.

[00:55:50]>> If you say them, I'll listen, I guess, is the best way to say that. Uh, your honor, other than if there's anything else the court would like information on that either one of us could depart. I >> I think I've asked the questions. I mean, if you want to respond uh to anything else that I've asked. Um, I I I think it it's necessary to put this out there. Um, I know this is a trial court, but when we're talking about reconsidering, I'm I'm still trying to ask the questions to get to the meat of it, uh, like an appellet court would.

[00:56:17]So, um don't take that as any sort of um indication as to what where I'm leaning one way or the other. Just those are the questions that I had as I went through everything. Um and that's why I waited for both of y'all to kind of make your arguments to see if any of those issues were were were addressed. Um, but I just those were again these these are questions that haven't been answered by an appellet court that I've seen these specifics.

[00:56:52]Um, even finding anything that interprets the 2K exception. Um, I couldn't find and it's something that's been around for what at least close to 10 years >> since McDade. since McDade which was I think from 14 and so I think it came out in 15 is when they changed it and then it was changed again to add where basically the parent of a child in that situation can also do the recording >> that was subsequent >> that was subsequent um but I haven't been able to find anything that that that has explained those two different issues that kind of uh anything interpreting to 2K any further or or anything about kind of separating the issues of communication and video? I just >> All right.

[00:57:47]>> I I I'll be happy to provide that to the court, J.

[00:57:49]>> Okay. If you could >> what whatever can be >> I I would just the best blind submissions by noon Friday the 15th.

[00:58:09]By blind, I mean y'all just send me anything you want to send me, but I'm not going to entertain a bunch of response and reply and sir reply and all that. And this has already been briefed several times over three years, I think.

[00:58:22]Um, just covering the issues that we've talked about today and then I'll take it under advisement to review those and I'll make a written ruling.

[00:58:31]Thank you, Judge. We'll >> figure out We'll figure out this issue one way or the other.

[00:58:34]>> Way or the other.

[00:58:38]>> That's all that happens to the court today.

[00:58:39]>> I appreciate it. Thank you.

[00:58:40]>> Yes, sir. Thank you.

[00:58:41]>> Thank you.

[00:58:42]>> Thank you, Mr. Beck. Now, Miss Boso, >> do you is that all you have?

[00:58:47]>> No, your honor. I have the one with Mr. Lapella.

[00:58:49]>> Oh, okay. Well, we can call that one next.

[00:58:53]Mr. pillow.

[00:58:55]So, gurnie out Judge Sean Lupella for Bryson Gurnie if I may.

[00:59:41]>> All right. This is 22 CF 1043. Go ahead, Mr. Lapella.

[00:59:46]>> The last court date um was a violation of probation arraignment. I announced uh set for evidentary hearing and also I was be filing a motion to suppress and requested the video from the state. Um I think it miss Leone was here. I don't think Miss Boso was present that day. Um in the interim I filed the motion. Um and um and then on Tuesday I received a lot of video like a lot of video.

[01:00:13]>> Okay.

[01:00:13]>> Um and then I and and Miss Boso informed me it was coming. I don't mean to to laugh at that, but it's just something we >> like about 34 videos. It's a lot. Um I need >> Did y'all not have any videos before?

[01:00:26]>> No.

[01:00:27]>> Okay. Just wanted in reading the motion.

[01:00:29]It sounded like there were some things on video that >> Well, there wasn't It wasn't on video.

[01:00:33]was actually in the in an affidavit that the well it was in a statement that the that the arresting officer the investigator had written to officer Paul's graph and that was in a report that was it's in the court file >> and I was basically quoting from the report um so it if it was sounded like it was verbatim that's probably why or close paraphrasing um anyway >> like I said I I for For a lot of reasons, I can't be prepared to go forward with without knowing exactly what's in the videos. Um, >> so when did you get them?

[01:01:10]>> Tuesday. Yeah.

[01:01:13]His boss indicated to me that she just received them as well. But, um, so what are you asking for?

[01:01:22]>> I'm I'm going to ask for a continuence.

[01:01:24]Um, in addition, and and part of the reason I'm asking for continuance is because Miss Bosu informed me that they'd also be amending the violation affidavit.

[01:01:33]>> Okay.

[01:01:34]>> So, that that changes things in terms of being able to do the evidentary hearing.

[01:01:40]>> Okay.

[01:01:41]>> But I haven't received the amended version yet.

[01:01:44]>> It would make it more difficult for me to be prepared. No question.

[01:01:48]>> All right. Miss Baso, >> your honor, >> I don't I'll come over.

[01:01:51]>> Either s >> Your honor, um >> I'm sure I can hear you, but I often get >> Yes, your honor. The uh the can't hear you over there unless you're sitting right at that microphone.

[01:02:01]>> Your honor, the search warrant that was executed and at that time, uh the initial violation of probation came out.

[01:02:08]Um the videos were then provided to Mr. Lapella. And then based upon the evidence that was seized and the analysis, there is now a 30count information for possession of child pornography and five counts of failed to register that was filed this morning. Um the reason for the delay, your honor, is the warrant wasn't even the uh arrest warrant wasn't even executed until the 29th because they had to go through all the evidence. So the new case has now caught up with us and has been formally filed on. And I spoke with Mr. Farnsworth this morning. Um I advised him that everything had been formally uh finalized, the arrest had been made, the charges have been filed, and he indicated yes, that does constitute another violation, and he'll be filing a formal um amendment to the VOP >> and I don't >> I wasn't aware there was a new case.

[01:02:56]>> Yes, your honor. There was >> when we when we said it, there was a new case. So, change of circumstance indeed.

[01:03:03]>> 100%.

[01:03:04]>> We knew there was a search warrant, though, and that was the basis of this part large portion of the basis of this motion we file based on the based on the affidavit in it in its present form basic indicating that his statements were what were violating him. So that's basic for the motion, right?

[01:03:22]>> Um so but obviously the circumstances have changed.

[01:03:28]>> I'll have to to in order to be effective I'll have to review the videos that I have and any other discovery of the state.

[01:03:34]>> Well, I guess kind of looking at the road map.

[01:03:40]Are you intending to still want to go forward with a um a VOP evidentiary hearing now that there's a new case?

[01:03:47]>> I don't see how that would be a good idea. Okay.

[01:03:51]I I asked the question because I but I assume that answer, Mr. Lapella. Um and as far as the motion is suppressed, do you still want to set that now or just kind of go through the things and then set it from there?

[01:04:03]>> I think in order for me to properly evaluate the the merits of it considering there's additional evidence that may u change the parameters of the motion or may I may need to add to it or or it might not be a valid motion anymore. I don't know. So, I need to look at it from a good faith standpoint and determine whether or not I can um reset it. So, I'd ask to be have it be held in abandance if that's possible. Um >> yeah, that's fine. Sorry. My my reaction was to seeing that his arraignment date is listed for June 4th, which I've tried to move that arraignment date to June 3rd so I can attend a conference and I thought we got it done before anyone was getting that arraignment date, but it may have been a day too late.

[01:04:50]be in touch with the clerk's office about some notices.

[01:04:54]>> All right.

[01:04:56]>> The court would like to set it for status. That's fine with us.

[01:04:58]>> Yeah, that's fine. I'm just trying to figure out when um because as far as miscellaneous dates, my next one is not till May 28th. I know we've got some we've already got quite a few on that date. And as I've told y'all several times over the past week or so, I'm I'm on duty that week. So, I don't I can't have one of those till 6 or 7:00 at night type of u miscellaneous dates because I'm also in charge of handling all the emergencies that come in. So, it's just not going to be a 6:00 night could turn into a 8:00 night real quick that way. So, I'm not doing that to any of y'all or myself. So, we can look at that June 3rd date potentially. It's going to be June 3rd, not 4th. Um because I'm moving it from Thursday to Wednesday. I think we put that out last week. I'm not sure. I don't think my office has heard any complaints back yet, but it looks like there's a few cases that since we've done that have now been put onto the 4th. Um, so we can either put it there for kind of status with his arraignment date, but I wouldn't set a suppression hearing or a VOP hearing unless y'all specifically ask for that or and notice it that to that effect.

[01:06:07]>> The third or the fourth?

[01:06:08]>> It's going to be the third.

[01:06:10]I've got a fly out on the morning of the 4th.

[01:06:13]>> I think every judge in the circuit has court on the 3rd >> all day long, too. Um, let's see here.

[01:06:20]>> There's also a Supreme Court investigure on the fourth, which I was I've been bouncing back and forth about which thing I was going to do.

[01:06:26]>> ACDL is on the fourth.

[01:06:28]>> It's only an arraignment date. Um, and it has been formally filed.

[01:06:34]>> I anticipate I'll be filing notice and and and probably a >> probably be a So, let's just put the VOP for June 3rd at 1:30 just as a status date.

[01:06:45]>> Well, what did you guys think about it?

[01:06:47]Could you hardly wrap your brain around that defense argument? I sure can't.

[01:06:54]How do you feel that the judge is leaning?

[01:06:59]I kind of feel like he's leaning toward the prosecution.

[01:07:04]I can't see any other common sense way to rule. I guess he'll be ruling on June the 4th as far as um whether this evidence can come in or not.

[01:07:19]But um you know there are some states that are are one party consent states as far as you could record somebody and you wouldn't be in trouble if they took you to court saying that they didn't know you were recording them. And some states are two-party consent. I know New York is a two-party consent.

[01:07:41]Um, but all the states have the condition that if you're recording someone in a place where they have a reasonable expectation of privacy, again, like the the bathroom, of course, you can't record somebody in the bathroom. Um, but the bedroom is one of those places. Um, but still I believe the judge is going to use his common sense and allow this evidence to come in. We shall see. Um, and we'll follow it. We'll find out what he says, I guess, on June the 4th. But let me know what you guys think. And if you like these kinds of videos, please like and subscribe and I will keep making them.

[01:08:32]And until next time when we meet here again for the next case, this court is adjourned.