Kimberle Weeks, Flagler County's former elections supervisor, faces multiple charges of surreptitiously recording others' conversations.
The criminal case against former Flagler County elections supervisor Kimberle Weeks will hinge on a judge's decision on whether or not to allow evidence found when FDLE agents searched Weeks' office at the Supervisor of Elections building in late 2014.
Weeks has been charged with surreptitiously recording the conversations of local and state officials and private individuals, including Florida Secretary of State Ken Detzner, County Attorney Al Hadeed, County Commissioner Charlie Ericksen and others, to "have leverage" over them, according to the prosecution.
Weeks was arrested and charged with 12 counts of illegally recording conversations, or distributing those recordings, after Florida Department of Law Enforcement agents searched her office Oct. 3, 2014, seizing computers and her cell phone. (Three of the original 12 counts have since been dismissed. )
Most of the physical evidence in the case came from that search warrant, which turned up multiple audio recordings of conversations of people who did not know they were being recorded.
Weeks' attorney, Kendell Ali, challenged that search warrant during a Feb. 24 pretrial hearing, telling Judge Margaret Hudson that the FDLE agent who requested the search warrant, Phil Lindley, had left relevant information out of his request for the warrant.
In particular, Ali said, Lindley should have mentioned in his request for a warrant that the Supervisor of Elections building has a sign on the door saying that the premises is subject to recording.
The fact that the sign is there, Ali said, undermined the allegation that the recording which prompted the investigation in the first place — of two public officials having a whispered conversation inside the Supervisor of Elections building — had actually been illegal.
Ali also said that Lindley hadn't mentioned in the request for the warrant that the recorded conversation took place during a public Canvassing Board meeting, which, ordinarily, would be legal to record under state open records laws. Ali suggested that Lindley had been angry at Weeks because she'd refused to give him public records he'd requested as part of the investigation, and had he therefore obfuscated the facts to get a search warrant.
"He jumped the gun to get a warrant," Ali said. "He was met with a little bit of a wall to get certain things. … We’ve got to look at the fact that maybe he’s got an axe to grind here. … Maybe that’s why he wasn’t completely forthright."
Assistant State Attorney Jason Lewis pushed back on those assertions, pointing out that Lindley had specifically said in previous testimony that he had not noticed the sign on the door.
And, Lewis said, although there had been a public meeting in session when the recording took place — something Lindley had in fact noted in his request for a warrant, even attaching for the judge a Daytona Beach News-Journal article about the case in which experts were quoted as saying there was no expectation of privacy during a public meeting — there were other factors at play that day.
In this particular case, the two men who were recorded, County Commissioner Charlie Ericksen and County Attorney Al Hadeed, were having a whispered conversation in one room of the elections office after the rest of the Canvassing Board meeting's participants had adjourned to an a different room. And, Lewis said, Weeks had specifically told Canvassing Board members that she was not recording the meetings.
"You can foster an expectation of privacy," Lewis said. "That's what Mrs. Weeks did."
To throw out the search warrant and disallow all evidence collected because of it, Lewis said, the judge would have to find not only that there was an omission or misstatement in the request for the warrant, but that the omission or misstatement was made with reckless disregard or with the intent to deceive.
Hudson said she would take the matter under advisement and make her decision on the search warrant in the future. She is also considering a motion to dismiss the remaining nine criminal counts against Weeks.