Quote:
Originally Posted by Himni
It is perfectly legal to record police officers as many other on this site will attest to. Heck you can even video tape them if you want. You do not need to inform them that you are recording them either. I know some of the mods here can confirm that this is true.
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Uh-huh. "Perfectly" legal. Others on the site say so. Who am I to argue?
I should leave you with that false sense of certainty. But but I (inadvertently) started this, and I would not want someone who deserves better might be mislead. So ... here we go ...
It is a mistake to look for “set rules” that will apply in all circumstances. NOTHING is "perfectly" legal. Categorical statements are for dolts who cannot manage ambiguity.
In
Henlen, the tape recording of the interviewing officer by the suspect was held not to be violative of the wiretap statute
because the officer was not justified in expecting –
under those specific circumstances - that his oral communications would not be intercepted. The Court based that conclusion upon FACTS, applicable IN THAT CASE. The facts were: (1) such interrogations are routinely recorded by the police; (2) the officer took notes at the interview; and (3) a third party was present.
And now comes the
McIvor case, where a trooper who surreptitiously recorded his conversations during traffic stops was
found guilty of violating the wire tap law.
The long quotation someone set forth from a web site is correct, but only as far as it goes. It does refer to the
McIvor case. But it does not note a part very important here:
Clearly, there are occasions when conversants have no expectation of privacy, but when they do have an expectation of non-interception. Interception of a communication on these occasions would still violate the Wiretap Act. The case presently under review presents just such an instance. Appellant posits that no one would have an expectation of privacy in any communication to a uniformed police officer. However, it is just as likely that no one would expect that a roadside traffic stop conversation would be secretly recorded. Under the circumstances of this case, while the stopped motorists had no expectation of privacy, they had a very real expectation of non-interception. They legitimately could expect that their words would not be electronically seized and carried away by the officer. Thus, the communications recorded by appellant do qualify as “oral communications” under the Wiretap Act.FN5
FN5. The result would be the same if the motorist was the one doing the intercepting.
So, the Pennsylvania Superior Court,
en banc (nine judges, not just the usual three), and taking
Henlen into consideration, has stated that during a routine traffic stop a motorist who records the police is violating the wiretap law, unless there is some other reason to find that the officer had some reason to expect the stop was being recorded.
This suggests to me that where one is "interviewed" under circumstances where one does not expect to be recorded, surreptitious recording can be a problem. Armed confrontations in the field (as opposed to scheduled interviews in jail cells) are not generally tape recorded. I gather nobody was taking notes. The only people present were the officers and the "suspect." Under these circumsances, it might might well be found that the officers did have an expectation of non-recording, and recording could be a crime.
I am
not saying it
would be a crime. Nobody elected me to an appellate court, so I am left to make predictions.
So, for the love of God, please, nobody trouble me with arguments about how the footnote is
dicta. I am fully aware that since
McIvor was decided the Pa. Supreme Court has held (without making reference to
McIvor) that it is not possible to have an expectation of non-interception absent an expectation of privacy, and that holding contradicts McIvor. I also know that
McIvor has not been overruled, and the essential point regarding whether one would have an expectation that a roadside traffic stop would be recorded has been restated many times.
I would not want to be the guy with his future on the line arguing this stuff. This is especially so since there is always the possibility there might be other facts in any particular case that cut for or against a finding of guilt.
I quickly posted the statute which, I now see, was a mistake. I happen to have been writing briefs for the past four days, and writing another one here is not something I am inclined to do. My point was that recording police secretly is asking for serious trouble. I think it’s a stupid thing to do, especially based upon “summaries” and general statements of the law found on internet lists. Take that for what it’s worth, ye who are blessed with the gift of certainty.
If you want to show ‘em you have big balls and you’re quite the freedom fighter, just
tell them you are recording the conversation. That way nobody can say they didn’t know … unless they are prepared to lie.
And when then they tell you to turn it off, you can look up another web site for your next move.
Anyone who wants to play games with the crimes code had just better hope a lot of things go his way, beginning with the officers with whom he is dealing turn out to be of the very professional sort.
June 25th, 2009
Re: Audio/video taping police in PA
Millions for defense, Not one cent for tribute!
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