Author Archives: Legalpro

Is It Legal To Spy On Your Spouse?

Maybe your spouse or significant other is coming home late and not spending as much time with you as they used to. Maybe they seem distracted or are acting secretive. Maybe they are getting unexplained late-night calls or text messages. Or maybe you are going through a divorce and suspect that your spouse has been having an affair or is hiding marital assets. Whatever the scenario, you get the feeling that something just doesn’t feel right and want to find out what’s really going on. At this point it may be tempting to do a little spying on your spouse or significant other, but depending on how you go about it, it could be legally dangerous and might even land you in prison.

“Spying” can cover a wide range of activities; everything from accessing a spouse’s e-mail or Facebook account, to looking through their cell phone for suspicious phone numbers or texts, or digging through their web search history.   Some spouses have been known to use methods that are even more technologically sophisticated, such as installing key-logging software on a spouse’s computer that tracks every keystroke, setting up hidden cameras or recorders or attaching a GPS device to a spouse’s car.

So what kinds of “spying” activities are actually allowed?  It is perfectly legal to do a Google search on someone or to use a website in which you pay for publicly available information. Additionally, if your spouse is “friends” with you on a social media account, or posts messages that are public, any such postings are fair game and may be viewed by you and used as evidence in any divorce proceeding.  Many of these “spying” activities can also be legal if your spouse has previously given you permission to access password protected accounts or social media records.

There is also no problem with any information that is spoken directly to you by your spouse, or is sent or delivered to you in written form as these communications would be admissions from a party to the divorce.  This includes  any voicemails left on your cell phone as well as any emails or text messages sent to your cell phone by your spouse. Even if the voice mail, email or text message was sent to you inadvertently, it can still be legally viewed, retained, stored and used in any divorce proceeding. Additionally, anything observed in a public place or any conversations overheard in a public place where there is no reasonable expectation of privacy would most likely not be considered illegal and any information obtained would be admissible in court if it was relevant. You can also videotape or photograph almost anyone in a public place. Also, hiring a licensed private investigator to do investigative work or conduct surveillance on your spouse is legal. This type of professional would be allowed to testify in court regarding any information not obtained illegally.

Now let’s take a look at what types of “spying” activities would most likely be found illegal.

In Florida and numerous other states, recording someone during a phone conversation or in person without their knowledge and consent would be considered illegal if the conversation is in a nonpublic place. Even secretly picking up the phone and listening in to the conversation while other people are talking could result in evidence which would be inadmissible in court.

It is also potentially illegal to hack into your spouse’s password-protected cell phone, email or social media account. Looking through your spouse’s computer files (unless it is on your computer) without their permission could also result in inadmissible evidence, and any information obtained in this manner would most likely be excluded from any future divorce proceedings. Installing a GPS device onto your spouse’s car or key logging software onto their computer could also get you into legal trouble especially if you are not the sole owner of the car or computer. Additionally, if you’re thinking about installing hidden cameras or recording devices you need to be very careful about where they’re located, because installing those cameras on property not owned by you or in places where a person has a reasonable expectation of privacy, might violate wiretapping or other privacy laws. For example, you can install a home video security system that records video only, and which your spouse is aware of. However, if you installed the video system solely to spy on your spouse, and your spouse is totally unaware of the video system, you may have violated your spouse’s privacy rights.

Keep in mind that the law varies from place to place and situation to situation, so that what might be legal in one state may not be legal in another or under federal law.  The best advice I can give you would be to talk to your attorney before taking action to record, video, invade password protected accounts, or take any other action to obtain evidence in your case. Your attorney should be able to guide you through the evidence gathering process so that all the information you obtain will be obtained legally, be admissible in court and does not get you in trouble with the law.

Watch videos such as “What Should You Expect When Meeting About a Divorce” and other videos in our Video Gallery. See more articles from our attorneys at the law firm of Morgan and Barbary in our blog.

Morgan & Barbary,

Personal Injury, Criminal Defence and Family Law Attorneys

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Brevard County Lawyers

Three Guys Walk Into a Bar…

Florida Supreme Court Finds Florida Man Liable for Drinking Buddy’s Injuries in the Case of Dorsey v. Reider

Three guys walk into a bar . . . is the start of many jokes, but things didn’t turn out so funny for Dennis Dorsey after a night out drinking with Robert Reider and Russell Noordhoek.   These three men were drinking together in a Florida bar in late August of 2007 when Reider became belligerent, saying that he wanted to fight everyone in the place.  Dorsey told Reider he was “acting like an a***hole” and left the bar. Reider and Noordhoek followed him out and Reider then trapped Dorsey between the bed of his truck and an adjacent car and demanded an explanation for Dorsey’s comment. As Dorsey and Reider argued, Noordhoek grabbed a tomahawk from Reider’s truck.  Upon seeing Noordhoek approach with the tomahawk, Dorsey attempted to escape by pushing Reider to the side, but Reider prevented him leaving. Noordhoek then bashed Dorsey in the head with the tomahawk, knocking him unconscious. Noordhoek and Reider immediately fled the scene.  Dorsey eventually regained consciousness and drove himself to an emergency room for treatment.

Dorsey eventually filed a lawsuit against Reider,  alleging that Reider owed him a duty of care to prevent Noordhoek from attacking him. Following a trial, the jury found that Reider was liable for Dorsey’s injuries and awarded him over $1.5 million. The case was appealed and overturned by the Third District Court of Appeals which found that Reider owed no duty to Dorsey to prevent the independent act by Noordhoek and there was no duty under Florida law to control the conduct of a third party or to prevent a third party from physically harming another person.

The case ultimately came before the Florida Supreme Court which reversed the appellate court’s decision and reinstated the jury verdict.  In its ruling, the Supreme Court held that although there is no general duty to prevent an assault by a third person, such a duty of care can be created if one’s actions create a “zone of risk” whereby it is foreseeable that injury could result. Applying the foreseeable zone of risk test, the Supreme Court determined that hindering someone’s “ability to escape an escalating situation created a foreseeable zone of risk posing a general threat of harm to others.”  In this case, the Court believed that Reider’s actions – trapping Dorsey between the cars and holding him while Noordhoek obtained his tomahawk –  created such a zone of risk and resulted in Reider’s damage.

A few things to take away from this case: First, never drink in a bar with a man that carries a tomahawk in his truck and likes to fight;  Second,  if your “friend” is telling you he wants to fight everyone in the place, it is time to seek out smarter friends; Third, when being accosted in a parking lot by drunks, it is always best to leave yourself a clear point of escape; and last, but not least, choose your “friends”  wisely.  A stupid friend might do more harm to you than a smart enemy.

Be safe out there.

Clay Morgan, Melbourne Lawyer, Partner & Esquire

Morgan and Barbary,

Personal Injury, Criminal Defence and Family Law Attorneys

 

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Employee Rights

Does your right to defend yourself outweigh your boss’ right to tell you not to?

On September 17th, 2015 the Utah Supreme Court addressed a case wherein a group of Wal-Mart employees were fired because they did not follow the Wal-Mart Company’s non-resistance policy when they were faced with potential imminent violence from a customer.

Five different employees, in two separate incidents, violated company policy when they heroically handled death threats and potentially violent confrontations.

In the first incident, two employees disarmed a shoplifter, who after being detained, pulled a pocket knife and threatened to stab them if they didn’t let her go. In the second incident, the other group of employees detained a man hiding a laptop computer in his pants. While in the store office, the man made a threat then pulled a gun, ultimately shoving one of the employees against a wall and putting the gun at the employees back. The employees were able to pin the man against a wall and take his gun away.  For their heroic action in doing their job and protecting Wal-Mart’s interests, the employees were fired by Wal-Mart for violating a company policy which requires its workers to withdraw from any potentially violent confrontation and call the police.

The employees sued Wal-Mart in federal court for wrongful termination, arguing that Utah, where they were employed, provides a constitutional right of self-defense and that their right to defend themselves when faced with a situation of imminent bodily harm where they cannot withdraw from the potential violence, trumped the employers policy of withdrawal from confrontation. The case went to the Utah Supreme Court to make the determination of whether the right of self-defense is a substantial public policy that provides an exception to the employment doctrine which allowed Wal-Mart to fire the employees for any reason not prohibited by law.  Chief Justice Matthew Durrant of the  Utah Supreme Court acknowledged Wal-Mart’s interest in regulating its workforce, acknowledged that as an at-will employer, Wal-Mart can fire any employee for any reason not prohibited by law,  but found that the right of self-defense is an exception to the at-will employment doctrine and stated that where an employee reasonably believes that force is necessary to defend against an imminent threat of serious bodily harm with no opportunity to withdraw, the right to defend oneself outweighs the at-will employment doctrine. Wal-Mart could not fire the employees for this reason.

What a great country we live in. Utah has decided that, even at work where you are subject to your employers will, you still have the right to make the decision to defend your life.  If we believe in anything, shouldn’t we believe that the right to defend yourself – the right of self-preservation – trumps all other rights? I have always been an advocate of the right to self-defense.  I live my life by a code in which I attempt to provide civility to all I meet, but if I feel that my life or my family’s lives are in imminent danger, then shouldn’t I have the right to defend myself with every option available… including deadly force?  And isn’t it the individual, faced with the attack and its consequences, that has the right to make that decision and live with the consequence of their action?  The law is very similar in Florida which will be the subject of another blog.

As a personal injury lawyer in Melbourne Florida, but also a citizen of the United States, I applaud the findings of the Utah Supreme Court and the right of each individual to make the decision to run or to fight and to live with the consequences of their actions.

Clay Morgan, Brevard County Attorney, Morgan and Barbary

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Titusville Attorney Morgan and Barbary

Exercise your right to protest, but be prepared for the consequences.

The other day, I was reading an article in the American Bar Journal about a man from Connecticut, William Barboza, who disagreed on the issuance of a speeding ticket he received while traveling through Liberty, New York, and decided to protest the ticket when making his payment to the city. He expressed his protest, when returning the payment form to the city, by crossing out the word “Liberty” and replacing it with “Tyranny” and then writing “F*** you Sh**** B******” across the top of the form when making his payment. Mr. Barboza was subsequently notified by a Justice of the Liberty court system that his payment had been rejected and he was ordered to appear in front of the Judge. Once in court, he was given a stern lecture about using obscene language and then arrested for aggravated harassment. He was handcuffed, detained and then released on $200 bail for his protest. Although the charges were later dismissed, Mr. Barboza, sued in federal court for alleged violations of his First Amendment right to free speech.

Following the trial, a Federal Court Judge found that “Though crude and offensive to some, (the statement) did not convey an imminent threat and was made in the context of ‘complaining about government’ activity which does not violate the law.”

What a great country we live in; one that allows its citizens the freedom to voice their displeasure at perceived injustices, even when they do it in a crude and offensive manner.

Now, I do not condone the use of obscene language when responding to tickets or other penalties assessed by our government. Let’s face it, payment forms are usually received and processed by clerks who are just trying to do their job. Cursing at a clerk in this situation is like yelling at a bank teller because your account balance is low. But exercising your right to tell the government you think they have done wrong or overstepped their authority…. That is our civic duty.

But we shouldn’t have to resort to obscene language to wage a protest. In fact, I think it does an injustice to our forefathers and our freedom. Whatever happened to protesting with eloquence? “Give me liberty or give me death.” -Patrick Henry; “All tyranny needs to gain a foothold is for people of good conscience to remain silent.” -Thomas Jefferson; “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” -George Washington. Now those guys knew how to protest.

My thought on this story is simple. Raise your objection. Protest what you believe to be injustice. Our country was founded on our right to protest, many a patriot has shed blood to protect it, and we need to exercise it if we are to protect and keep those rights. Thomas Jefferson once said, “When injustice becomes law, resistance becomes duty.” I’m sure that had Mr. Barboza anticipated the time and money he would be spending on this he would have thought twice about issuing his obscene protest, but his protest, would be appreciated by Thomas Jefferson. In a country that allows such power to its people, I advise to exercise it, but do it with eloquence, not obscenity, and be prepared for the consequence.

For man to be free, people must fight for it from time to time. Or better said by a young Thomas Jefferson: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.”

Thanks for reading. See more articles from our attorneys at the law firm of Morgan and Barbary. http://legalproblem.com/blog/

Clay Morgan, Esquire, Morgan and Barbary – serving Titusville, Melbourne, Palm Bay and other areas of Brevard County

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Removing Criminal Case Records from the Public Database

A criminal record, involving even a small crime like Petty Theft, can affect the rest of a person’s life. Employment, admission to a school, or even renting an apartment can be denied. Fortunately, Florida law allows a sealing or expungement of a record. Certain serious crimes do not qualify, but most do. A SINGLE criminal case may be removed from the record, once in a lifetime.

A sealed record is hidden from view and an expunged record is physically removed from Florida public databases. There are certain conditions that have to be met in order to seal or expunge a record. A person may not have been convicted (adjudicated) of a crime in order to qualify. The final outcome of a case must be not guilty, dropped (notice of nolle prossequi or no information), or adjudication withheld. Traffic offenses, such as speeding, do not count as adjudications.

There is a problem, however, removing a record completely, because information that appears on the Internet is difficult to remove. There are businesses that provide Record Search services, unearthing information that might relate to an individual or business. Employers, schools, and even landlords make use of such services. In a perfect world, the process of sealing or expunging a criminal record would remove it from all databases. Unfortunately, that is not always the case. Despite a successful sealing or expungement, there may still be information on the Internet of an arrest, or even a booking photo. That record must also be removed in order to gain the benefit of sealing or expungement in Florida.

Once the process of sealing or expunging a crime is accomplished, Florida law allows an individual to act as if the incident never occurred. “Were you ever arrested?” “No.” “Ever charged with a crime?” “No.” It is of critical importance, then, that there be no record of crime that might appear on any record available to the employer or landlord who might be searching.

For the most part, the Criminal Record search companies are willing to remove a record from their database once they have proof that the record has been sealed or expunged by the State. They probably can’t be legally forced to do so, but they do as a matter of courtesy. That still doesn’t guarantee that somewhere out there in the eddies of the Internet, there isn’t some article, some photo, some document that can appear out of nowhere at the most inopportune time.

The good news is that there is a process to remove a record of a criminal case from the public database. And that the law allows a person to deny that any such criminal case ever existed. There is the problem of the private databases, however, and the effort that must be made to remove those records. In the end, the process of sealing or expunging a record in Florida, followed by a concerted effort to remove all evidence of the record from the Internet, is worth the effort.

To remove your criminal case, contact us at the law firm of Morgan and Barbary.

Darrell Sedgwick, Criminal Defence Attorney, Melbourne FL

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