Can Police Record a Suspect’s Conversation With a Confidential Informant in Florida

April 21, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, a confidential informant may cooperate with law enforcement to avoid arrest or prosecution for a crime, or mitigate punishment for a crime. Confidential informants sometimes complete “controlled buys” from drug suspects. These involve police sending an informant in to purchase drugs from a suspected dealer, and recording this interaction to use as evidence against the target suspect. Under the “law enforcement exception” to Florida’s two-party consent law, officers may record conversations between a suspect and a confidential informant under certain conditions.

But Florida is also a two-party (“all party”) consent recording state. This raises the question – can law enforcement legally record a private conversation that takes place between a confidential informant and a suspect, even if they don’t have a warrant and the suspect does not know?

Florida Statutes Section 934.03 makes it illegal for someone to wiretap or otherwise intercept the private communications of multiple parties in the state – or record another party’s conversation without their knowledge or consent. A private person who records a conversation with someone without their knowledge can be criminally prosecuted. LaPorte v. State, 512 So. 2d 984 (Fla. 2d DCA 1987). 

Depending on the type of conversation that is recorded, a Florida Statutes Section 934.03 violation can be charged as a:

• Second-degree misdemeanor, punishable by up to 60 days in jail and a $500 fine
• First-degree misdemeanor, punishable by up to 1 year in jail and a $1,000 fine
• Third-degree felony, punishable by up to 5 years in prison and a $5,000 fine

However, there are various exceptions to this law. One is the “law enforcement” exception under 934.03(2)(c). This makes it lawful for an investigative or law enforcement officer or a person acting under the direction of an investigative or law enforcement officer to intercept a wire, oral or digital communication when:

• The law enforcement officer is a party to the communication, or one of the parties to the communication has given prior consent to such interception, AND: 
• The purpose of the interception is to obtain evidence of a criminal act

Put simply, if an officer uses a confidential informant during a controlled buy and wishes to record the conversation without a suspect’s knowledge, the officer must either be a part of the transaction or secure consent from the informant. However, the officer does not need separate consent from the target suspect, despite the fact that the law typically requires all parties being recorded be made aware of the surveillance.

If officers overlook this and do not explicitly receive the consent of the confidential informant to record the transaction before having that informant perform a “controlled buy,” the recordings will not be admissible in court. This is because neither of the two parties (the target suspect or the confidential informant) consented to the recording. Any audio and video evidence collected must be suppressed, unless the (undercover) officer was also a participant in the controlled buy. 

But if the confidential informant’s consent can be established, any tape of the controlled buy is admissible against the defendant accused of selling the drugs to the informant at trial. The recorded interactions may also serve as the basis for police to seek out search warrants for the property of a suspect, which may result in the discovery of additional evidence.

Often, a controlled buy involves only an informant and a suspect. Florida’s courts have ruled that a confidential informant’s consent to recording a controlled buy can be established one of three ways. These include:

• The informant testifies directly about their consent to the recording
• The informant signs a waiver or some other form acknowledging the interaction will be recorded
• An officer involved with the investigation testifies that the informant verbally consented to the recording

While this final point has been the subject of controversy, the Florida Supreme Court has said that a law enforcement officer may testify to an informant’s consent to the recording. State v. Welker, 536 So.2d 1017 (Fla. 1988).

If someone is charged in a case involving a confidential informant, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

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Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the criminal defense attorneys at Pumphrey Law have decades of experience fighting on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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