In April of this past year, a Maryland state trooper pulled over Maryland Air National Guard Sgt. Anthony Graber for speeding on his motorcycle. The plain clothes trooper who exited his unmarked car with his gun drawn was unaware that Graber was recording the traffic stop on a helmet-mounted video camera. After receiving his ticket, Graber posted the video on You Tube. You can see the video yourself if you click on the play button above this post.
Several days after Graber posted the video, the Harford County State's Attorney filed felony charges against Graber alleging that he had violated the state's wiretapping statute. This week a Maryland judge dismissed the wiretapping charges on grounds that the police have no reasonable expectation in their official communications.
At this point you may be wondering what a helmet camera has to do with wiretapping. Wiretapping generally conjures up images of secret microphones hidden in lamps and police sitting in a van outside a mafia social club, and while that does happen, the law may actually address any audio or video recordings of conversations.
The purpose of these laws is to prevent the secret recording of seemingly private conversations without a warrant. Some states allow for the secret recording if at least one party to the conversation knows about the recording. This is called a "one party consent" jurisdiction. The theory behind this is that whenever you speak to somebody, you assume the risk that the other person may be recording the conversation. It was under this type of system that Colorado police were able to secretly record basketball player, Kobe Bryant, during a 2003 sexual assault investigation.
Other states use a "two party consent" system in which all parties to the conversation must consent to the recording without a search warrant. Maryland is a two party consent jurisdiction and the state's argument is that the state trooper did not consent to being recorded and therefore the recording was illegal.
The reason behind the dismissal of the felony charges against Graber is based on the concept of a reasonable expectation of privacy. These laws were created to protect secret recording of conversations in a place where a person reasonably expects their conversation to be private. The court found that when an officer is conducting a traffic stop on a public road, he or she is performing his or her official duties in a public setting and has no reasonable expectation of privacy. This is appears to be yet of another example of how police are fearful that their actions may make them look bad if made public.
If you ever find yourself in a position where the police are stepping all over your constitutional rights, call an attorney immediately. If you were arrested in DC, please feel free to contact my office for a free consultation. Oh, and in case you were wondering, DC is a one party jurisdiction.