Come Back With a Warrant
Episode 10: Talk Is Cheap... Until It's a Crime
Hosted by Brandon Dinetz and Monica Ishak
Intro
Brandon: Welcome back to Come Back With a Warrant podcast. I'm Brandon Dinetz.
Monica: And I'm Monica Ishak.
Monica: 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.
Brandon: Call us.
Episode
Brandon: Welcome back to Come Back With a Warrant podcast. I'm Brandon Dinetz.
Monica: And I'm Monica Ishak.
Brandon: 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.
Monica: Or social media too, actually.
Brandon: 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.
Monica: And text messages even.
Brandon: Yeah.
Monica: Very true.
Brandon: There are so many different aspects that people wanna claim that they have privacy rights.
Monica: But so many times now, even with — and there is, like, so many things going out into AI now that can be produced now and used in court—
Brandon: Mm-hmm.
Monica: through warrants and stuff, whenever the government gets, overcomes whatever they need to overcome to get that. But it ends up being something that people wanna claim that they have, but oftentimes, they don't or they waived that when they agreed to the terms and conditions of using any sort of platform or any sort of app.
Brandon: So, a lot of it comes down to the standard of having a reasonable expectation of privacy. So, you know, can you record in public? The answer is yes, you can be recorded in public and can record in public.
Monica: Law enforcement, that's something that — there's a new law that actually was passed in the State of Florida, I don't know about other states, but it came out this year, and you have to actually give emergency personnel, including law enforcement, 25 feet distance if you're going to be recording or engaging with that type of behavior, which is fine. Just don't interfere with their investigation or whatever the emergency personnel is doing over there. And that is oftentimes something that people catch resisting charges because they're in police's face and they're wanting to record or they're not staying back, even though maybe they are 25 feet and the police are fixating, they're like, "Get back, get back."
Monica: It's not necessarily about the fact that you're recording. Maybe the recording is provoking them — that's maybe triggering the situation, but always, you know, and I'm getting a little off-topic in terms of privacy, but when you're doing that, it's okay because there is not a reasonable expectation of privacy when you're out in public because they're engaging in whatever they're doing in the public.
Brandon: So, you can't claim, "I'm in a private area," when you're in public.
Monica: That's, like, also, maybe, like, people who — this might be a little, like, wacky, but I feel like it's common, like people change in their cars. You don't have a reasonable expectation of privacy there versus—
Brandon: I do not. I'm no longer changing. No, I did not know that.
Monica: It's not the same level as your home.
Brandon: Yeah.
Monica: Your home has the highest protection.
Brandon: My goodness, all the things that people do in their car, you have no—
Monica: Yeah.
Brandon: expectation. Or all the people picking their nose and doing everything else in their car. You think you're private, but you're not.
Monica: Yeah.
Brandon: But it's true. There's this expectation of privacy that everybody has, but, you know, oftentimes, the people that are screaming, "I know my rights, I know my rights, I know my rights," are the people that are either holding the camera or saying, "Well, you can't record me. I know my rights." And you don't, because the truth of the matter is, you can, yes, be recorded in public and you can record in public. And it becomes problematic at times.
Brandon: I'll give an example. I had a woman from Kentucky call me that her daughter is a student at FAU, and she was out with friends in Fort Lauderdale and somebody recorded them and put it on TikTok, and the daughter was getting body shamed, and she wanted to know what could she do. And the unfortunate thing is there's really nothing that can be done. The video was taken out in public. It was the person that was recording it, and basically her daughter does not have an additional expectation of privacy being out there. There's a First Amendment right that that individual who took the video has, and they were recording.
Monica: Yeah.
Brandon: And unfortunately, for that family and for many, many others, that is the way that it is. That is the law. There are times when things can become illegal, and then we're talking about hate speech or we're talking about just illegal activity being recorded on camera and then being shown to police. But that's a different — when you are — you don't have the right to privacy. So, be aware that somebody out there filming you, whether you like it or not, if you're out in public, they're probably allowed to do it.
Monica: Unfortunately, social media has made privacy, like, not a thing. So, like, any sort of, like, publishing of anything online, you cannot claim privacy after doing that, you know? It's there. And even if you delete it or whatever, it's still — somebody could have taken it and saved it or whatever the case is, and you can't later come back and say, "No, that was private information." You were the one that put it out there.
Monica: And social media, you do not have a reasonable expectation of privacy on social media platforms. And I think, you know, that comes into play a lot when people are — their words are being used later against them or their posts or whatever it is are being used against them.
Brandon: And this also comes up in situations with our clients when they're in custody too. And this is the biggest way that our clients' statements are used against them if they are not speaking directly to police. It's because all jail calls are recorded.
Monica: And again — it's — I don't — I feel like that thing needs to go off maybe 5 times for people to get it, because before somebody actually takes the call—
Brandon: Yeah.
Monica: it says, "This call is being recorded." And for some reason, people don't believe that or they just — I don't know, they don't think that prosecutors actually listen to it, but they listen to it.
Brandon: Yeah, the message should say, "This call is being recorded and is going to be listened to."
Monica: Yeah.
Brandon: Because it is.
Monica: Or will be used against you.
Brandon: Yeah. It is being listened to. It will be used against you. I was a prosecutor, I've heard jail calls that were used against individuals. And I, thankfully, have not had to deal with that as a defense attorney, where my client's—
Monica: Oh, my gosh.
Brandon: jail calls have come in against them, but it is a real fear because people are very comfortable talking on the phone and saying things about their case, about the other people involved in their case, or talking about illegal activity, and they're doing it openly on a communication that's actively being recorded and listened to.
Monica: I was in domestic violence as a public defender. The courtroom, the division. And though there's 2 charges usually in that courtroom, you really are not seeing any other charge. Domestic battery or assault and violation of injunction or a no-contact order. And for every phone call from somebody who has a no-contact order or an injunction against the alleged victim, for every attempt to call that person or every time they spoke on the phone, that was another count for violation of injunction or a stay-away order.
Monica: And not only are they gonna be able to pull the fact that you called this person, they can extract the conversations and hear that you're like, "Please don't prosecute," and you're tackling on more charges. And it's like, what are you thinking? What are people thinking? And like, that is something that I saw often. There were times where people were charged with over 10 counts of violation of injunction or no-contact, and it was because they were calling from the jail. And there was no defense. There was no defense. It's like, what are we — like, we have to beg the prosecutor now to have mercy on you. And your battery—
Brandon: Drop some of those counts just because we're asking them to at that point.
Monica: Yeah. There's no—
Brandon: Just because.
Monica: There's no legal grounds for them to drop those counts because you're caught red-handed. And if they wanted to go forward and not offer you anything, they could, and you would be screwed.
Brandon: Yeah.
Monica: So it's just things like that that people don't often take seriously, but it's so serious and it comes into play a lot, and I saw it way more often at the public defender's office where I would get jail calls in my discovery. But it really — my hands are tied at that point. My hands are tied. Like, what can I do to keep this out? Nothing. Like, I actually can't think of even a legal basis unless maybe that recording was broken or something and didn't inform that person that they were being recorded, which has never happened. Every single time somebody gets on a jail call, it tells them, "The system—"
Brandon: The call is being recorded.
Monica: That's right. "The call is being recorded." So when they tell you that, believe them, for the love of God.
Monica: The other aspect though is that if you speak to your attorney, it's not recorded, even if you are in custody. And that comes down to attorney-client privilege and I've had clients call me on, like, a recorded line because I didn't reach out to them, so then I take the call. Even then, those calls, even though it says, "This call is being recorded," it's still a privileged call. So any communications with your attorney is private. Will the prosecutor have access to it? Yeah. Should they listen to it and use it against you? No.
Monica: So — and I think they do have — I don't know how — I guess every prosecutor probably does it differently, but they probably have, like, they go through their cases, they go and check the call queue or whatever they log into to see if they have access, whatever records they can get for Securus. It's like a case-by-case basis.
Brandon: Yeah.
Monica: But if there's a defendant that's in custody and you need to see what's going on, then you can log in to the system, check what type of phone calls they're making, who they're talking to, what they're talking about, and that's that. There's certainly no right to privacy in that situation.
Brandon: There's no right to privacy period in custody.
Monica: Yeah. No.
Brandon: Unless you—
Monica: So—
Brandon: literally except if it's related to your lawyer. That's the only time.
Monica: And that's because it's privileged, not because you have a general reasonable expectation of privacy while in custody. You don't at all.
Brandon: Right.
Monica: You share a space with so many other people, which I know is interesting because I had a case where my client was being charged for, and this is a little — whatever, I'm just gonna say it. He was being charged or accused of jacking off to a prison guard.
Brandon: So — I had those jailhouse jerker cases when I was a prosecutor.
Monica: Yeah, and I—
Brandon: Those aren't fun for anybody.
Monica: But defense—
Brandon: Except for the guy.
Monica: Yeah, I guess. And the defense actually never wins those cases, I hear. But I won that shit.
Brandon: All right. Well, now I'm very curious to hear how you won one of those cases.
Monica: Oh, my God. It was such an interesting case. But my defense was that he was in basically his home and it was a private area because the allegation was that he was, like — there's setups for when you're in custody, and it obviously depends on the detention center. But in the area in which this client was in, he was in, like, an open bay setup. So it's kind of like bunks or a bunch of random beds in the unit.
Monica: And he was at his bed, and the guard was — I don't remember how many feet away, but she was not directly in front of him. And he got out of the shower. He goes to his bunk or his bed, and he's, like, cleaning himself up, and he — our defense was also that he had a medical condition, and he was bleeding from, like, his lower area and needed to clean it up, whatever. He ended up testifying and showing that he had a gunshot wound in his back that went through, like, from a prior injury, and that's why he had to clean himself up. We didn't present an expert or anything. He just—
Brandon: Right.
Monica: got on the stand and testified. He did it so beautifully, and obviously, there is, like, issues and concerns with, like, the jury hearing that this person's in custody—
Brandon: Mm-hmm.
Monica: and that this person's been shot before and, like, may be involved in, like, street involvement or whatever it is. And so he testified really well to his injuries and his — what he was suffering from and why he was bleeding and how he had to clean it up. And he was found not guilty, but part of my argument was that, where is he supposed to do this? This is where he lives.
Brandon: Well, yeah.
Monica: And obviously, I cross-examined her on what she saw or what she didn't see, and I was like, "Please describe my client's penis."
Brandon: You're talking about the guard?
Monica: Yeah. The correctional officer. But that was a really fun case to try, and you know, my client was maxed out, so it was really like a free trial 'cause he was in custody on another case, so.
Monica: Which, you know, if you're maxed out on a case and just for people who don't know, if you're maxed out and you get the opportunity to try a case, you really can be sentenced to the max, which if you've served it already, you can't — there's really no—
Brandon: You're getting out of custody.
Monica: Yeah, you just — you're getting out of jail anyway, so it's like, there's no point in not trying the case if you have an actual triable fact or, you know, it's like a disputed fact. So that's always a cool thing to do, but that often came up in public defense and not in private because usually, people get out of custody—
Brandon: Yeah, but you got this guy off.
Monica: Yeah.
Brandon: A second time.
Monica: Yeah. It's pretty cool.
Brandon: That's so funny. A second time.
Monica: I was like, "Wait, what?" Yeah, listen. I don't know what happened the first time. It's not my business.
Brandon: Well, yeah, okay.
Monica: Allegedly, allegedly. Well, even if it did happen, it's still not my business.
Brandon: Yeah. You know, the first trial I ever had was one of those cases.
Monica: Really?
Brandon: Yeah, and we lost.
Monica: Yeah?
Brandon: I was the prosecutor.
Monica: Oh, wow.
Brandon: The judge granted the judgment of acquittal, the first JOA. The judge did not believe—
Monica: The correctional officer.
Brandon: The correctional officer showed up super late for trial to begin with, and the judge was not happy about it.
Monica: It's not a good look.
Brandon: And he didn't find her credible at all and granted the JOA. And a JOA—
Monica: That was my first—
Brandon: my first trial ever. We were just like—
Monica: And that means that the case didn't even make it to a jury.
Brandon: To the jury, yeah.
Monica: That's—
Brandon: The judge said, "There's not enough here." Yep. That was my first ever trial. I'm just standing there as a prosecutor. I had never tried a case before, and the first ever case, you get a judgment of acquittal, and it's, that's the worst thing that can happen—
Monica: Yeah.
Brandon: for a prosecutor.
Monica: Yeah.
Brandon: And I was like, "Well, it can only go up from here." So—
Monica: Yeah, that's true. I felt that way about my first trial, too.
Brandon: Yeah.
Monica: Against you.
Brandon: All right. To be fair, he didn't ask for jail.
Monica: I did not ask for jail. But the judge was like, "Jail." And I was like, "Ah!" Okay, well, that's — yeah, that's not my fault, but yeah. But yeah, so when it comes to — these are our little side quest conversations about our—
Brandon: Yeah, I love that.
Monica: But that's, like, one of the best parts about this show, is that we can go into these, like, side stories that are totally related to this. I think that's what makes us so relatable as—
Brandon: Yeah.
Monica: co-hosts is that we, you know, we're talking about this shit but we've actually lived it, and we have really funny stories about it.
Brandon: Yeah, yeah.
Monica: Like, I could not make this story up about this guy jacking off to a correctional officer. Which is — allegedly. Often — that's a common thing. That's a common charge. Like—
Brandon: Well, the other thing is, and you said this, and I'm gonna say it from the perspective of a former prosecutor, but a lot of those guys do it because it's a freebie trial, and they're not ready to go to — some of the guys that are sent to the Department of Corrections, and they're waiting to go to DOC, and they're like, "Well, you know what? I'm gonna hang around for a few more weeks." And they get themselves into some sort of trouble at the county jail, and now they have a new case. And they get to go to county court, and they get, you know, the field trip as—
Monica: It's fun.
Brandon: Right. It's not fun, but there are certain people that are doing it just to waste time and just to play games.
Monica: It works.
Brandon: It does, but they kind of changed that situation to some extent because most of those cases, if I'm not mistaken, are now handled either internally or they've changed the charge to be a felony.
Monica: Yes, they've made it a felony.
Brandon: And because it's a felony, people are like, "Ah, I don't wanna do that anymore."
Monica: Yeah, that's so true. They did make it a felony.
Brandon: Yeah.
Monica: Mine was actually down-filed from the felony to a misdemeanor for some reason, but maybe they found out he actually had a defense. Yeah, you're right. That's — but it's funny 'cause I did hear that oftentimes defense don't win, but yours, in your case, and in my case they did.
Brandon: That's 2 right there, yeah.
Monica: Well, so going back to our topic of privacy, the other aspect is, and you briefly mentioned this, is hate crimes. And so, when does speech go from protected as freedom of speech in the First Amendment to a crime? And that's something that I think a lot of people — this is a really big issue, I think, when people are like, "Oh, well, I have freedom of speech, so I can say whatever I want," and to a degree—
Brandon: Right.
Monica: But when you couple what you're saying with, like, an actual threat that you can carry out, like an assault, that becomes a hate crime. If you're, like, saying something racist at the same time or something, or it's motivated—
Brandon: Right.
Monica: like whatever speech is motivated by like religion or race or gender, against like certain communities, plus any sort of like criminal act, whether it is actually carried out or not, such as an assault or whatever, or maybe criminal mischief—
Brandon: Mm-hmm.
Monica: that could be considered a hate crime, that's when it rises to the level of a crime. And a lot of offices take it very seriously. Palm Beach County recently opened up its own unit just for hate crimes, like a hate crimes division, and that's — it all funnels into that division anything related to any sort of hate crime. And we see a lot of different scenarios where it's like becomes a religious thing or a race thing.
Brandon: Right.
Monica: And it's scary, because then there's like text messages shown in court about things you thought would never be shown to a judge or a jury that comes out into the open.
Brandon: Right. I mean, the hate speech protections are out there for a good reason. The types of things that I saw as a prosecutor, or that are just recent cases and recent examples, the antisemitic packets being put on people's lawns in Boca Raton, that's just a local example, and there were issues prosecuting those people. The former state attorney, I think what he did was he was prosecuting them as littering offenses, to an extent, and that's how he was trying to prosecute this hate crime. He was having trouble doing it because it's not easy to do.
Brandon: But yes, you're right, the scenario has to be coupled with this crime that is gonna potentially be carried out or threaten to be carried out. The idea of getting in trouble for the things you say has to be coupled with something happening, or the idea that you are about to incite something—
Monica: Yeah.
Brandon: or start something happening, that's where you get into the, okay, it's not allowed anymore, and now the speech is not protected anymore. And in most circumstances, that's, you know, there for a good reason, right? You don't shout, "Bomb," on an airplane. You don't shout, "Fire," in a movie theater. You don't, you know, you don't do that.
Monica: Yeah.
Brandon: You know, my wife watches Titanic on airplanes, but I think — that's not a good idea to give an example of people doing things that you shouldn't be doing. I don't know why that example came to my head.
Monica: But also, hate crimes, it comes down to also like what it's motivated by, like are you, like you said, antisemitic, you know?
Brandon: Mm-hmm.
Monica: If it's motivated to target a specific group of people, and it's like a derogatory term that you're often like — that's often we see in like either texts or whatever. I always see text messages, that's why I keep saying it, but also it could be social media, it could be any sort of piece of evidence, video even, and someone's screaming some derogatory term towards a certain community, and it's motivated usually by like race or religion. That's the most common 2.
Monica: And that's when it's — people are like, "Oh, well, I have a right to free speech." Like you don't have a right to say those things towards certain people and threaten them. Oftentimes it's threats, and that's assault, so if you have the apparent ability to carry it out. So that is a huge part of the privacy issue that people think they have. It's like, oh, you really don't have a reasonable expectation of privacy when it comes to this stuff, because now it's evidence. Someone turned it over to the police, and now it's open for them to investigate and now prosecute you with your words that you sent to somebody.
Monica: And it's always over something stupid. It's always like some sort of like, I don't even know, like even neighbors, neighborly things. It's like they'll then—
Brandon: I see that constantly—
Monica: It's always like—
Brandon: where it's neighbor disputes.
Monica: so dumb. It's like really — I mean, definitely not dismissing any sort of hate crime, but it's like, could have been avoided.
Brandon: Right.
Monica: Like you could have just regulated your emotions and not had to have put that out there or threaten this person, because at the end of the day, you probably weren't actually serious about the threat that you were making, or maybe you like lost it and damaged someone's property and said some term, like things like that. Or like people put like — there was a video I posted on my Instagram about a woman vandalizing someone's car and it was like an antisemitic thing that she was putting on someone's Tesla. And the Tesla has 8 cameras on the car and so the cameras on the car captured it and it was used as evidence in court and that was a hate crime. Like, those are hate crimes, you can't do that.
Monica: And then it obviously can be enhanced based on the state you're in.
Brandon: Right.
Monica: If it's an enhanceable offense. Here, it's not. It's like specific to hate crimes but it can be considered as an aggravating factor, I'm sure, with the sentencing if the court is considering that, and the facts of the case, which they do. So—
Brandon: So it makes any situation worse?
Monica: Exactly. It's not — like, just because it's not an enhanceable offense doesn't mean, like, that it's like you're getting a freebie. Like, no. Everybody's gonna hear that you said that.
Brandon: Right.
Monica: The fact that you were beating someone up is bad enough but then—
Brandon: Yes.
Monica: the fact that you throw in a racial slur—
Brandon: Yeah.
Monica: or something against somebody's religion or sexual identity, that is now changing the situation and making it way more serious than it was.
Brandon: And you're, you know, causing a world of problems for yourself and making your lawyer's job harder in the future as well.
Monica: Yes, yes.
Brandon: Because a simple bar fight takes on a different meaning when your client decides that they should also throw in some racial epithets in the framework.
Monica: And it's used to show your intent too.
Brandon: Right.
Monica: Which is worse oftentimes because state doesn't always have, or the government doesn't always have, something to show that you were intentionally committing an act. And so they have to look for other pieces of evidence to show that but when you're like actually screaming a slur or derogatory term towards someone while you're beating up on them or whatever, you are giving it to them on a silver platter.
Brandon: Correct.
Monica: So like, why? Why make the situation worse? Obviously don't do it in general but people really just are so unregulated, they don't care and it's like oftentimes people that are like off the wall and they just like lose it and it's always over something ridiculous.
Brandon: Mm-hmm.
Monica: Um—
Brandon: So really to wrap up what we're talking about today, the expectation of privacy doesn't really exist in a lot of areas, okay? Whether it's people filming you out in public and putting it on social media, whether it's jail phone calls, whether it's hate crimes or crimes that get escalated because of the — or really the ways that your speech turns into a crime.
Monica: Right.
Brandon: However that happens, be it through a hate crime or otherwise. These are different examples of where privacy considerations don't apply and we are — I don't even know what I'm saying. I'm wrapping—
Monica: No, yeah.
Brandon: wrapping up nothing.
Monica: No, it's good and also, you know, AI stuff is like a huge thing now where people are, like, giving their heart and soul into ChatGPT and people are just like giving all of their info in there and then somehow it's like regenerated into the internet and people are finding that information somehow, I've been reading about that. I don't know if that's like completely accurate either but—
Brandon: Well great Monica, thanks for scaring the shit out of all of us. I use chat all the time and now I'm like — everyone is gonna have to know my business.
Monica: Yeah, I mean, it is the future.
Brandon: Yeah, it is.
Monica: And you know, it's scary—
Brandon: And the present.
Monica: Yeah, it's scary because technology really does change the whole entire idea of privacy and what privacy is today.
Wrap-Up
Monica: So if you like listening to us make sure you check the show notes, comment, like, subscribe, give us a five-star review, ComeBackWithaWarrant.pod on all platforms and if you don't like listening to us—
Brandon: Come back with a warrant.