Audio/video taping police in PA

[Pa. Patriot]

ETA: This thread is a year old. I am reviving it due to new info I have researched. See post 3 below ~Pa. Patriot

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originally posted 7/22/2007
Appears that there has been some confusion about recording police in PA after the Carlisle arrest a few weeks ago. (charges were dropped, btw)

As PA is an "all party" consent state people have said that you can not record oral communications with police unless they give you consent.
After some research it seems clear to me that there are several KEY exceptions to the law that apply to recrding police, in person, under most circumstances.

1) "Oral communications" per the statute has the "reasonable expectation of privacy" clause built into the statutory definitiion of "oral communication".
public officials (like police) cunducting stops/interviews/etc, are not expectant of privacy due to the nature of their duties and their position.
This has been upheld in lower and supreme court rulings.

2) In many police encounters, police may be taping you (since they are exempt from the statute) BUT the fact that they initiated the taping means by default that they also consent to being recorded.

Lot's more, most of which can be read at a number of discussion forums, case law cites, etc.
I just wanted to point out some of the more obvious facts and post some references (below)

Looks like we're good to go in PA ,under most circumstances, as far as recording any LEO confrontations incident to OC'ing

Comments? Info?

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REFS:

Title 18 SS5702: "Definitions"


Title 18 SS5703: "Interception, disclosure or use of wire, electronic or oral communications"

Title 18 SS5703: "Exceptions to prohibition of interception and disclosure of communications"

http://www.rtndf.org/resources/hidde...nsylvania.html

Pennsylvania's statute makes it illegal to intentionally intercept (through use of a device), attempt to intercept or have someone else intercept any wire, electronic or oral communication. It is also illegal to intentionally use or disclose (or attempt to use or disclose) any information concerning the substance, purport, or meaning of the communication or evidence derived from the contents of a communication if one knows or has reason to know that the information was obtained through interception. Violation is a third-degree felony, punishable by imprisonment for up to seven years and a fine of no more than $15,000. Pennsylvania includes an exception to the interception statute to allow the recording of certain telephone communications with a contractor or designer about excavation or demolition work, provided the parties are informed that the call is being recorded. Consent It is not unlawful to intercept a communication when all parties to the communication have given prior consent. Ordinary answering machine tapes fall within the mutual consent provision of the statute and are not unlawful interceptions. Reasonable expectation of privacy The statute requires a reasonable expectation of privacy for oral communications. To be protected, an oral communication must be uttered by a person exhibiting an expectation that the communication is not subject to interception, under circumstances that justify that expectation. In 1986, a Pennsylvania lower court ruled that an employee who had surreptitiously recorded an unemployment compensation hearing did not violate the statute because a record of the testimony was routinely made for purposes of review by the board and the courts. The court ruled that there was therefore no reasonable expectation of privacy at the hearing. In 1993 a lower court ruled that a Children and Youth Services client did not violate the statute by secretly recording his meeting with a case worker. Because the case worker did not disclose any personal information, he had no expectation of privacy regarding the conversation. And in 1989, the state's Supreme Court ruled that a state trooper had no expectation of privacy while interviewing a suspect, so that the suspect's surreptitious recording of their interview was not illegal. Pennsylvania courts, including the Supreme Court, in recent years have made a distinction between an "expectation of privacy" and an "expectation that a communication will not be intercepted." In 1996 the Superior Court in Philadelphia, citing a 1994 state Supreme Court decision for support, ruled that a person need not have a reasonable expectation of privacy in order to be protected by the statute as long as the person had a reasonable expectation of noninterception for the communication: If one is speaking with the town gossip at a public swimming pool under circumstances insuring that the gossip is not wearing a body wire, one's expectation of noninterception is very high, but the expectation of privacy is very low. Thus, an expectation of privacy does not always carry a concomitant expectation of noninterception, and vice versa. For purposes of violation of the Wiretap Act, while we consider the expectation of privacy as a factor, it cannot be the determining factor in our analysis. (Commonwealth v. McIvor, 670 A.2d 697, 699 (Pa. Super. Ct. 1996). The court ruled that motorists stopped by a uniformed police officer had no expectation of privacy but had "a very real" expectation of noninterception, so that the officer's tape recording of their conversations violated the statute. What is covered It is legal under the statute to intercept or access an electronic communication made through an electronic communication system configured so that the communication is readily accessible to the general public. It is legal to intercept radio communications that are transmitted by any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire department systems, if they are readily accessible to the general public. "Readily accessible" means, among other things, that the signals are not encrypted or scrambled. It is also legal to intercept amateur, citizens band or general mobile radio services communications as well as the radio portion of a cordless telephone communication. A person is guilty of a third-degree felony if he or she possesses a device and knows or has reason to know that its design makes it primarily useful for surreptitious interception of communications. Any device possessed or used in violation of the statute is considered contraband and may be seized and forfeited to the state. The Pennsylvania Supreme Court has ruled that listening to a phone conversation through a telephone extension is an unlawful interception of the communication under the statute. The court ruled in 1989 that an extension telephone qualified as an "electronic, mechanical or other device" as required for interception under the statute. Civil remedies A person whose communication is intercepted, disclosed or used may receive either actual damages or statutory damages calculated at $100 per day of violation or $1,000, whichever is higher. Punitive damages and reasonable attorney's fees and court costs are also available. If it appears that someone is engaged in or about to engage in a violation of the interception statute, the attorney general of Pennsylvania may initiate a civil action for an injunction to prevent the violation. It is a defense to a civil action if the person acted on a good faith reliance on a court order. In a 1991 case, the Pennsylvania Supreme Court ruled that a newspaper that printed excerpts from the transcript of a telephone call intercepted by the police was not liable under the civil provisions of the interception statute. The newspaper's disclosure was not a violation because the newspaper received the transcript from the court (albeit through a mistake by the court clerk) and the newspaper waited until the court had ruled on the admissibility of the intercepted call into evidence. The court ruled this was a "good faith reliance upon a court order" as required by the statute. Sources 18 Pennsylvania Consolidated Statutes Sections 5701 through 5707, 5725, 5728, 1101, 1103 (1997); Boettger v. Loverro, 587 A.2d 712 (Pa. 1991); Gunderman v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 505 A.2d 1112 (Pa. Commw. Ct. 1986); Commonwealth v. Brachbill, 555 A.2d 82 (Pa. 1989); Commonwealth v. DeMarco, 578 A.2d 942 (Pa. Super. Ct. 1990); Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989); Commonwealth v. McIvor, 670 A.2d 697 (Pa. Super. Ct. 1996); Commonwealth v. Louden, 638 A.2d 953 (Pa. 1994); Commonwealth v. Christopher, 620 A.2d 494 (Pa. Super. Ct. 1992).

[MarcS]

I think it all boils down to there being no reasonable expectation of privacy on a city street in broad daylight.

[Pa. Patriot]

Reviving this thread.

Spoke to a friend of mine that is "wiretap certified" with a state agency.

He tells me that in circumstances where LEO are secretly taped by citizens, during execution of their official duties, they (LEO) never win in court. One such controlling case law he claims is the most relevant: Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989).

Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989), where Henlen, a prison guard at a county jail, was suspected of stealing the personal property of an inmate. During an interrogation by state police at Henlen’s work site, Henlen secretly recorded the conversation with the intent of using it as evidence in a
harassment claim he would later file against the police. Henlen’s argument was similar to that of the Commonwealth in Myers: the conversation was not an “oral communication” protected under the Wiretap Act since the trooper had no reasonable expectation of privacy while he was acting in his official capacity during the interrogation of a suspect.

He also says this precedent has been clarified with the wiretapping div of the state AG's office.

Apparently, since LEO's are performing public service, their interaction is not considered private. He also mentioned that any conversation w/LEO is not private because they will potentially create a report containing the info you and he discussed.

So, according to someone who does this as part of his official duties, his words "you can always tape the police if they are performing work related duty, even secretly, even over the phone"

FWIW, 3rd hand info, but I know this individual personally and he is quite confident of his info.

In doing my own research it is my belief that this is correct.
Commonwealth v. Brion and Commonwealth v. Henlen, commonwealth v.Agnew all seem (to my reading) to uphold that in order for the expectation of "non-interception" to trump a the lack of "expectation of privacy", as the statute makes mention itself: "expectation must be justifiable under the existing circumstances".

In recording LEO's they have apparently found the circumstances are not warranting expectation of non-interception by virtue of the public servants job.


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Obviously, in the above, we are talking about secret interception. If you disclose you are recording or your recording eq is in plain view your 100% good to go because the visible presence or verbal disclosure completely covers you under the PA statute
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The above is only my OPINION on what I have read and been told. I AM NOT A LAWYER. Take it FWIW! I am confident in MY OPINION that we can tape LEO, without disclosure, during a typical public interaction. Don't whine to me if you get arrested for same

[JoeWilliams]

Remember, "expectation of privacy" isn't the only issue, "expection of non-interception" also plays a part.

It is impossible for a police officer in the performance of his/her duties to have an expectation of privacy. I've not researched case histories, but I suspect it wouldn't take much of an attorney to destroy any claim by a police officer that he/she couldn't legally be taped in the performance of their duties due to an expectation of non-interception. In this day and age of digital cameras and cell phones, cold hard facts are that any cop who honestly thinks he/she may not be taped at any time is too stupid to breathe without written directions.

Besides, does anyone really think that there is a jury out there that would convict someone of taping the cops? Everybody wants an eye kept on them.

[Pa. Patriot]

Originally Posted by JoeWilliams

Remember, "expectation of privacy" isn't the only issue, "expection of non-interception" also plays a part.

Only applicable when "expectation must be justifiable under the existing circumstances".

Commonwealth v. Brion and Commonwealth v. Henlen, commonwealth v.Agnew all seem (to my reading) to uphold that in order for the expectation of "non-interception" to trump a the lack of "expectation of privacy", "expectation must be justifiable under the existing circumstances".

In recording LEO's they have apparently found the circumstances are not warranting expectation of non-interception by virtue of the public servants job. Probably at least in part due to your reasons you cited such as being in an environment of recording devices.

That's just my reading of it but IANAL.

[shooter357]

Ive always wondered about that since the cops have to write a report about what was said and done. Thanks for the update Pa. Patriot.

[Brown-Bear]

Sounds good to me. Thanks for the research and new update.

Dave

[andrewjs18]

yep..thanks for that..

[ihunt49]

You should be a lawyer instead of a gorilla!

Thanks for the great info, as usual.

[4XLT]

thanks for the follow up lil grilla !

now i know i can record with no problems!!!