Welcome back to Come Back With A Warrant podcast. I'm Brandon Denitz. And I'm Monica Ishak.
Before we kick-start this week's episode, this is your reminder that this podcast is not legal advice. It's real, unfiltered, and for entertainment purposes only. If you need to speak with a lawyer, call one. Or better yet, call us.
Welcome back to Come Back With A Warrant podcast. I'm Brandon Denitz. And I'm Monica Ishak.
On today's episode, we're gonna be talking about privacy and the lack of privacy—whether it's jail calls, videos in public, or when your speech itself becomes a crime.
Or social media too, actually.
Pretty much. That's kinda what I mean by your speech becomes a crime, because you can put some things up online that can really get you into trouble. And text messages even.
Yeah. Very true.
There are so many aspects where people want to claim they have privacy rights. But so many times now—even with so much going into AI—things can be produced and used in court through warrants once the government gets what it needs.
A lot of it comes down to the standard of having a reasonable expectation of privacy.
Can you record in public? The answer is yes—you can be recorded in public and can record in public.
In Florida, there's a new law that came out this year. You have to give emergency personnel, including law enforcement, 25 feet of distance if you're going to be recording or engaging in that behavior. That's fine—just don't interfere with their investigation or what emergency personnel is doing.
A lot of people catch resisting charges because they're in police's face and want to record, or they're not staying back. Even if they are 25 feet, police may still be saying, "Get back, get back."
It's not necessarily about the fact that you're recording. Maybe the recording is provoking them and triggering the situation. But in public, there is not a reasonable expectation of privacy.
You can't claim you're in a private area when you're in public.
People also do things like change in their cars. You don't have the same expectation of privacy there as your home. Your home has the highest protection.
People think they're private in their car, but they're not.
The people screaming, "I know my rights," are often holding the camera or saying, "You can't record me." But you can be recorded in public and you can record in public.
Example: a woman from Kentucky called me. Her daughter, a student at FAU, was out in Fort Lauderdale and someone recorded them, put it on TikTok, and she was getting body shamed. Unfortunately, there's really nothing that can be done. The video was taken in public. The person recording has First Amendment rights.
Social media has made privacy not much of a thing. If you publish something online, you can't claim privacy after doing that. Even if you delete it, someone could have saved it.
You do not have a reasonable expectation of privacy on social media platforms.
This comes up when people's words are later used against them—posts, texts, messages.
This also comes up with clients in custody. The biggest way statements get used against clients—when they aren’t speaking directly to police—is jail calls. All jail calls are recorded.
It needs to be said repeatedly: the call announces it's being recorded. People still don’t believe it or don’t think prosecutors listen. But they do.
The message should say, "This call is being recorded and is going to be listened to. It will be used against you."
I was a prosecutor. I've heard jail calls used against individuals. As a defense attorney, it’s a real fear because people get comfortable and talk about their case, other people involved, or illegal activity—on a line that is recorded and listened to.
In domestic violence, every call to someone protected by a no-contact order or injunction can be another count—another violation. People end up charged with 10+ counts just for calling from jail. There’s no defense. You’re caught red-handed.
At that point, you’re begging prosecutors for mercy to drop counts. There’s no legal ground to force it.
When a jail call says it’s recorded, believe it.
If you speak to your attorney, it's privileged—even if you’re in custody. Communications with your attorney are private under attorney-client privilege.
Will a prosecutor have access to it? Possibly. Should they listen or use it against you? No.
There’s no right to privacy in custody—except communications with your lawyer. That’s privilege, not a general expectation of privacy.
Story: I had a client accused of exposing himself to a correctional officer. Our defense was that he was in his bunk area, cleaning himself after a shower, and had a medical condition—bleeding due to an old gunshot wound. He testified well and was found not guilty.
As a prosecutor, my first trial was a similar case, and we lost on a judgment of acquittal. The judge didn’t find the correctional officer credible and granted the JOA, meaning it never went to a jury.
Back to privacy: another aspect is hate crimes.
When does speech go from protected under the First Amendment to a crime?
A lot of people think, "I have freedom of speech so I can say whatever I want." To a degree—but when you couple speech with a threat you can carry out, or a criminal act like assault, it can become a hate crime depending on motivation—race, religion, gender, or other protected categories.
Palm Beach County recently opened a hate crimes unit.
Local example: antisemitic packets placed on lawns in Boca Raton. Prosecuting those can be difficult. The speech issue has to be coupled with conduct, credible threats, or incitement.
You don’t shout "Bomb" on an airplane or "Fire" in a movie theater.
Hate crimes often show up through texts, social media posts, or video. Someone says a derogatory term while committing criminal mischief or vandalism, and it becomes evidence.
Example: a woman vandalized a Tesla with antisemitic markings. Teslas have multiple cameras, and the footage becomes evidence. That can be a hate crime.
Even if it’s not an “enhanceable” offense in a specific way, it can still aggravate sentencing and make everything worse.
A simple bar fight becomes much more serious if the person throws in a racial slur. It can also help the state prove intent.
Big takeaway: the expectation of privacy doesn't really exist in a lot of places—public recording, social media, jail calls, and when speech turns into evidence or a crime.
AI also changes the privacy landscape. People share a lot with tools, and technology changes what privacy looks like today.
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And if you don't like listening to us… come back with a warrant.
