During his conversation with the officers, Flora and Sherrin entered the house to retrieve the protective order
in order to show the officers that the limit was 20 feet rather than 25 feet. They not only brought out the order but a pile of other papers as well. Hidden among them was a small tape recorder.
Flora maintains that he wanted to record the conversation because he feared the deputies would assault him and use racial slurs as they had done in the past. He explains that he felt particularly apprehensive because the officers refused to look at the pictures he had taken, pictures which, he thought, would prove he had not been photographing his neighbor's house.
When Flora and Sherrin came out of the house the officers proceeded with the arrest. The stack of papers was placed on the hood of the police car.
After Flora was placed in the car, Sherrin picked up the papers and one of the officers saw the tape recorder.
Sherrin was arrested and the tape recorder confiscated.
The conversation at issue fails this threshold inquiry; the arrest was not entitled to be private. Moreover, the police officers in this case could not reasonably have considered their words private.
«1» We note, incidentally, that the police officers testified at trial that they did not consider the conversation private