recording a police encounter... wiretap law implications

[Deviant Ollam]

i suspect that most folks here know this already, but this article is evidence of the fact that covertly recording a conversation -- even if you're documenting an encounter with law enforcement -- is illegal under wiretap law.

a few notes...

1. i am upset by laws like this since i feel they should pertain to the privacy of individual citizens, not be shields for agents of the state or public figures. being able to make a recording of a public event that anyone had the freedom to experience with their own eyes and ears is something that i think is just natural, and the freedom to record a police encounter or an interview with the FBI or something is just good sense.

2. it's not illegal (i believe) if you're making a VIDEO recording, as this doesn't fall under wiretap law. even if the video isn't shooting anything meaningful in the frame, i think it's still legal. so if you must covertly record, say, a police officer who has just pulled you over... maybe stick a little digital handicam under your seat.

3. it's not illegal if you're not being covert. one tip that BernieS told me once is this... you can turn on two recording units in a situation. (say, a hidden mic and the "memo record" feature of your cel phone) announce that you're recording and if told to "turn it off" very visibly turn off the one unit... perhaps your cel phone. keeping the other recorder running is not a wiretap since you announced that you were recording.

again, as per usual i'll announce that i'm not a lawyer but i encourage those who are to speak up. i also would like to hear from LEOs and other folks with ties to state or federal agencies... how do you feel about suspects or just average citizens recording interactions with law enforcement? "if you're doing your job professionally, you've got nothing to hide" is an argument some folk could make, but i refuse to on the grounds that it's too close to the "if you're doing nothing wrong you don't have anything to hide"

i agree with a citizen's right to document things fully, however. and i would support policies that mandate full audio and video recordings running 24/7 in police and fed interview rooms. taking statements or (even worse, talking a confession out of someone) would be good to always do with full a/v documentation, i believe... protects the suspect from abuse and officers from allegations of misconduct, no? but i'm not an LEO, someone else can enlighten me.

[TheCotMan]

Re: recording a police encounter... wiretap law implications

i suspect that most folks here know this already, but this article is evidence of the fact that covertly recording a conversation -- even if you're documenting an encounter with law enforcement -- is illegal under wiretap law.

Interesting.

Ages ago, search of a car was considered, in some courts to be like search of a house, and lead to inadmissible evidence if found without permission or search warrant or a significant requirement in probable cause.

We have recording conversations as legally admissible when there is no expectation of privacy.

So, which is it? Is a vehicle a private space like a house or residence, or not? If not, can expectation of privacy while talking in or around a car on public streets be equitable to no expectation of privacy?

I'm guessing this is Rochester, New York.

Sounds like this could be a test case for the Supreme Court.

Good article and thoughts there Deviant Ollam.

1. i am upset by laws like this since i feel they should pertain to the privacy of individual citizens, not be shields for agents of the state or public figures. being able to make a recording of a public event that anyone had the freedom to experience with their own eyes and ears is something that i think is just natural, and the freedom to record a police encounter or an interview with the FBI or something is just good sense.

Problem with use of should (emphasis in your quoted text mine) is it suggest a change in policy which is really close to that political activism thing we are trying to avoid on the forums.

Speaking to just the risks here:
By enforcing an imbalance (recording by LEO but not by citizens) risk for abuse can easily go unchecked. The obvious motivation is deny citizens legal collection of evidence sufficient to allow for a lawsuit or other charges to go to trial.

2. it's not illegal (i believe) if you're making a VIDEO recording, as this doesn't fall under wiretap law. even if the video isn't shooting anything meaningful in the frame, i think it's still legal. so if you must covertly record, say, a police officer who has just pulled you over... maybe stick a little digital handicam under your seat.

I'm not sure about this. If the camera is not obvious in location, and it is filming and recording audio in conversation to which the camera operator and tape owner are not participating, you could have legal problems. If the camera is visible and its use as a recording device of video and audio are evident to people present and included with the operator also present in th conversation.

I seem to recall that different states have their own laws on legal recording with phones and wiretapping. Some states are "two-party" state where both parties must know they are being recorded in order to be legal, and somme states allow for one-party state laws, allowing only one person *in* the conversation to know it is being recorded.

3. it's not illegal if you're not being covert. one tip that BernieS told me once is this... you can turn on two recording units in a situation. (say, a hidden mic and the "memo record" feature of your cel phone) announce that you're recording and if told to "turn it off" very visibly turn off the one unit... perhaps your cel phone. keeping the other recorder running is not a wiretap since you announced that you were recording.

This would be a case where the recording is obvious, in this case, announced.

So the legal questions for this include at least 3:
1) Is the state of the aleged offense a one party state or not?
2) Is a recording device in the seat that is "obviously"** running sufficient to meet the state's requirement for notification to all parties involved if all parties being recorded must be notified.
3) Is an arrest procedure on a public street, in a public space, and non-private location sufficient to meet the requirements for the state in question of, "no expectation to privacy."

** What is obvious (legal wording will be different) is often described in law, but framed in case-law. Simple review of *just* the laws of that state won't be enough to know what is really "obvious"

I am not a lawyer either, but these are items of issue as I see them.

[Thorn]

Re: recording a police encounter... wiretap law implications

again, as per usual i'll announce that i'm not a lawyer but i encourage those who are to speak up. i also would like to hear from LEOs and other folks with ties to state or federal agencies... how do you feel about suspects or just average citizens recording interactions with law enforcement? "if you're doing your job professionally, you've got nothing to hide" is an argument some folk could make, but i refuse to on the grounds that it's too close to the "if you're doing nothing wrong you don't have anything to hide"

i agree with a citizen's right to document things fully, however. and i would support policies that mandate full audio and video recordings running 24/7 in police and fed interview rooms. taking statements or (even worse, talking a confession out of someone) would be good to always do with full a/v documentation, i believe... protects the suspect from abuse and officers from allegations of misconduct, no? but i'm not an LEO, someone else can enlighten me.

As TheCotMan pointed out, this varies from state to state and depends heavily on the 'one party' vs 'two party' nature of the laws governing recording.

Personally, I wouldn't have any problem with it, but then again I live in a 'one-party' state, and have been officially recorded many times on vehicle stops and in undercover situations. Many police agencies across the US routinely record A/V for all traffic stops and have had that capability since the early-to-mid 1990's. Before that, many cops I know carried micro recorders in a front pocket and would activate them whenever talking to citizen. In my mind, if you're recoding yourself, you might as well let the suspects record all they want as it will only confirm your recoding, and will probably enhance your case. Side note: An interesting side effect of vehicle stop recording has been a huge reduction in the number of DWI trials. Defendants and their attorneys find that it's hard to deny intoxication when you have a video of the defendant literally falling out of a vehicle and saying in heavily slurred voice: "I'm too fucking <hic> drunk to take a fucking <hic> sobriety test."

Again, many interrogation rooms have full A/V recording capability. It's getting pretty rare NOT to see that capability these days.

Ages ago, search of a car was considered, in some courts to be like search of a house, and lead to inadmissible evidence if found without permission or search warrant or a significant requirement in probable cause.

We have recording conversations as legally admissible when there is no expectation of privacy.

So, which is it? Is a vehicle a private space like a house or residence, or not? If not, can expectation of privacy while talking in or around a car on public streets be equitable to no expectation of privacy?

A vehicle is not a home, and is specifically excluded from most warrant searches under multiple rulings from the US Supreme Court. There are clear "vehicle exemptions" that the Court has allowed. Many date back to the 1970's through the 1980's. Usually the rational of the Court has been that the vehicle is much mobile than a home, can and will be moved prior to any warrant being issued, and that any potential evidence will most likely be removed or destroyed before a warrant could be obtained. Most of these decisions have involved searches of the unlocked passenger compartment. Locked areas (trunks, locked cases, and the rare locked glove compartment) have usually been excluded under these searches unless additional Probable Cause has been developed. Even then, they may require a warrant.

Of course, automobiles passenger compartments are usually covered by large windows, so the "plain view" exemption -which allows officers the ability to seize evidence that they can plainly see- still applies. The lesson here is not to have the contraband out on the back seat. At least put it in a locked container. Locked containers may require a warrant by themselves or legally force a warrant for all locked areas of the vehicle depending on the officer's suspicions and the Probable Cause he has developed.

There are four or five states where the state Supreme Courts have held through case law that their state Constitutions are far more restrictive than the US case law and the US Supreme Court's interpretations of the US Constitution. Having lived and worked in one of those states I can tell you firsthand that the court approved procedure is to inform the subject that you believe you have Probable Cause to search the vehicle, and that you are seizing the vehicle which will be secured until such time as a judge allows or denies the warrant application. Under the circumstances the subject may be informed that they will be held under investigative custody -not arrest- pending the warrant. The person is usually told, although there is no legal requirement inform them, (or they ask) that the holding and search of the vehicle will take 2 to 8 hours depending on the availability of a State's Attorney and a judge, and officer's ability to fill out the appropriate forms. (Other cases can interfere.) The subject is then given a choice, both verbally and written, to allow a voluntary search to expedite the search the return of the vehicle to them. The unwritten assumption on the part of Vermont Supreme Court seems to be that innocent parties will consent just to get their car back quicker, while guilty persons will wait out the warrant process hoping that it will be denied. In application, it works out to being little more than a legally sanctioned way to coerce the subject into allowing a search. Rarely does it involve a warrant. Most innocent parties don't want to wait; most guilty parties don't want to wait either, but hope that the cops will miss whatever it is that is being sought, or they consent hoping to beat it in a motion later in court. Occasionally, guilty parties will ask for the warrant, and after it's obtained find they boxed themselves into a corner because they have had a judicial review prior to the seizure. I've never seen an innocent person demand a warrant and wait it out on principle.

It's my understanding that the process works in a similar manner in those other states where they have stricter search and seizure case law.

[jur1st]

Re: recording a police encounter... wiretap law implications

1. i am upset by laws like this since i feel they should pertain to the privacy of individual citizens, not be shields for agents of the state or public figures. being able to make a recording of a public event that anyone had the freedom to experience with their own eyes and ears is something that i think is just natural, and the freedom to record a police encounter or an interview with the FBI or something is just good sense.

This raises some interesting issues outside the wiretapping laws of New Hampshire. Just what should a police officer's expectation of privacy be when conducting a traffic stop? Detectives, undercover officers, etc. certainly have a greater concern over whether their words are being recorded but the procedures for stops like this are pretty well set in stone. In my opinioin, they should have very little. Officers are agents of the state operating in their official capacity and such a recording would go a long way to ensure that procedures are followed correctly.

I know that in my area, the police are all wired and stops are recorded on their end anyway which would render such a charge moot.

I can tell you firsthand that the court approved procedure is to inform the subject that you believe you have Probable Cause to search the vehicle, and that you are seizing the vehicle which will be secured until such time as a judge allows or denies the warrant application.

Another method which has been upheld as constitutional is the inventory search. In the example where a person has been arrested for a DUI, the car is seized as a matter of course. In order to protect the officers and police department from allegations of theft of items from the car a thurough "inventory" of all items of the car is taken. Anything illegal found in these searches cannot be suppressed.

And of course, I'm not your attorney and am not giving you legal advice. Actual mileage can varry, and has been shown to cause cancer in lab rats in California.