tape recording a police stop

[AfterGlow]

If I was out driving and was stopped by the police for any reason, would there be any legal problem with me turning on a micro cassette recorder in my pocket and recording the encounter without letting the officer know I was doing this? This could help me in the event there is any dispute regarding what happened and who said what. The police sometimes video tape stops without telling the citizen involved. So why can't I do something similar?

 

[Dr. J]

It is perfectly legal to do so, and who knows, it might turn out that there is some confusion as to what actually happened during the stop. Your recording could prove quite useful.

 

[zarquon]

It is perfectly legal to do so, and who knows, it might turn out that there is some confusion as to what actually happened during the stop. Your recording could prove quite useful.

Careful, Dr. J! This can get you arrested and convicted in some states!

Recording conversations is a creature of state law and varies by jurisdiction. For an overview of phone and in-person conversation laws recording broken down by state, see this web guide.

Some states allow one party (the person with the tape recorder) to provide the necessary consent ("one-party consent"). Other states require all parties to a conversation to consent (slightly mis-named "two-party consent", since there can be three or more parties as well). In the latter type of jurisdiction, one is required to get the police officer's consent in order to tape.

I had occasion to read through some MA law on this a while back, and ran across this:

Com. v. Hyde, 750 N.E.2d 963 (MA 2001).

Defendant moved to dismiss charges that he unlawfully intercepting the oral communications of another by secretly tape recording statements made by police officers during a routine traffic stop. The District Court Department, Brockton Division, Plymouth County, James F.X. Dinneen, J., denied motion. Subsequently, defendant was convicted by a jury in the District Court Department, Brockton Division, Plymouth County, David G. Nagle, Jr., J., of the charges, and he appealed. On grant of defendant's application for direct appellate review, the Supreme Judicial Court, Greaney, J., held that electronic surveillance statute prohibited secret electronic recording by a private individual of any oral communication and made no exception for defendant who, having been stopped by police officers, surreptitiously tape recorded the encounter.

 

[Dr. J]

Well, the only reason the tape recording would even become necessary is if there is some dispute with what was said or what happened during a stop. In the light of a tape recording that would clear my name of other wrong doing, I would gladly accept any possible charge of illegally recording a conversation than having it be said that I granted consent to a search when I, in fact, never did.

Unless of course, there is a provision which prevents presenting the illegal recordings as evidence. That I don't know. Do the statutes you reference refer to merely informing the parties of the recording or asking for their consent?

 

[zarquon]

M.G.L.A. 272 § 99. Interception of wire and oral communications

seems to provide a criminal defendant can move to have illegally procured recordings suppressed, and provides a civil remedy for others.

You have a point; if the surepetitious recording gets a person out of a life sentence, a charge of intercepting the communication might be trivial in comparison.

But it's still not a good idea to say that "recording the encounter without letting the officer know" is "perfectly legal". The max penaties in MA are 5 years and/or $10,000 per offense (which, from what I read is per cop involved; four cops = four charges of violating c 272 § 99). That's a lot of risk, for what likely gain?

My main point is to beware of state-level laws on this matter and that it's not "perfectly legal" everywhere in the US/world.

The MA court indicated that having the tape recorder in plain sight would probably be sufficient for implied consent; the concern is secret recordings, such as the original poster was enquiring about.

 

[Dr. J]

Well, the Mass case law has been pretty divided, and the decision by the SJC in the case you mentioned seems to be a too rigid interpretation of the statute.

And, is Mass the only state that has this rigid rule? I don't really have time to research this now, but it seems as if most of what I've come across has been the surprise of the Mass SJC ruling in the case you referenced. And, from reading the case, the trial judge does have the ability to surpress the evidence from any illegal recording, but is not required to do so, as with government violations of search and seizure.

So, it is not perfectly legal everywhere. perhaps the best way around this is inform the officer you are going to record something. In some cases, the idea of being accountable is more than the recording itself.

 

[wizekrak]

just curoius, since there is no expectation of privacy why wouldn't it be ok, its your car anyway. How would this differ from videotaping, I thought that assuming you are recording in a public place where there is no expectation of privacy you are entitled to do so. It's not like you are recording a phone conversation where there is an expectation of privacy.

So suppose you are standing across the road and videotape an incident between a cop and a citizen, how would this differ, neither knew they were being taped "I'm assuming it doesn't matter whether it's audio or visual" and it's in a public place.

 

[Mahan Atma]

just curoius, since there is no expectation of privacy why wouldn't it be ok, its your car anyway.

Because there's a law against it.

The "expectation of privacy" factor is for a Fourth Amendment analysis.

 

[wizekrak]

my bad, anyone know the laws concerning this in Canada?? You guys and your crazy amendments and such.

 

[AfterGlow]

Thanks for all the replies.

If I simply inform the officer that I'm taping our conversation for my own personal record and he does not object, could I assume I have his consent? This verbal exchange would be recorded in case there was a question about whether he objected or not.

 

[mattyb]

I live in Australia and the cops ALWAYS tape record you.
They do it through their radio on their shoulder i went to court and got fucked over by this big time mate!

I dont see why you cant- you might have trouble proving its real but mate!

 

[craig420]

Kudos to zarquon for this info. I'd always just assumed that audio taping a traffic stop was legal and a good way to protect yourself. Never had I imagined that it was illegal.

A bit tangential here, but...

Does anyone know the videotaping laws in MA? Does anyone know if state troopers or local cop cars are equipped with surveillance cameras and/or audio recorders?

 

[notneo]

I live in Australia and the cops ALWAYS tape record you.
They do it through their radio on their shoulder i went to court and got fucked over by this big time mate!

I dont see why you cant- you might have trouble proving its real but mate!

Thanks for the heads up. Great idea if this is legal where you live, could save you and help you out especially when argueing about an illegal search or what not.