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  • #31
    I don't see what is hard to understand about this incident. In Pennsylvania in particular, you are not permitted to audio record an oral conversation without the consent of the parties involved.

    18 Pa. Cons. Stat. §§ 5703, 5704: It is a felony to intercept any wire, oral or electronic communication without the consent of all participants.
    http://www.rcfp.org/taping/states/pennsylvania.html

    As a passenger in a vehicle, you are not a party to the conversation between the officer and the driver. This is supported through court opinions which indicate that generally, the officer cannot question or restrict the passenger unless he has reasonable suspicion that the passenger may also be involved in a crime.

    A protected oral communication is one in which the participant can reasonably expect will not be recorded. I don't think officers reasonably expect to be recorded when making traffic stops except by their own recording devices, which is announced to the participant, being the driver.

    A trial court has held that a communication protected by the legislation is one in which there is an expectation that it will not be recorded by any electronic device, rather than one in which there is a general expectation of privacy. Thus, the fact that a participant may believe he will have to reveal the contents of a communication, or that other parties may repeat the contents, does not necessarily mean that he would have expected that it would be recorded, and it is the expectation that the communication would not be recorded that triggers the wiretapping law's protections. Pennsylvania v. McIvor, 670 A.2d 697 (Pa. Super. Ct. 1996), petition for appeal denied, 692 A.2d 564 (Pa. 1997).
    http://www.rcfp.org/taping/states/pennsylvania.html

    Brian D. Kelly didn't think he was doing anything illegal [...]
    Really?

    Police said the officer saw Kelly had a camera in his lap, aimed at him and was concealing it with his hands.
    In my opinion, this is just one less stupid kid that can post his homemade, selectively-edited, videos to YouTube and C*pW*tch groups.
    "Screw that. We can make bullets faster than they can make terrorists. Kill them all. Every last one." -Interceptor

    Comment


    • #32
      Originally posted by JPR View Post
      With all due respect then, a law enforcement officer should not have an expectation of privacy when speaking with a citizen? Right?
      If a contact is made in the streets, public park, or anywhere else in public (not in a private office or room), there is no expectation of privacy from either end - civilian or officer. This looks like a good case to get a case law decision on. In Calif, we have no laws like the one noted in the OP.

      However, if I go to someone's house to take a statement, I ALWAYS ask if I can tape the interview. There is an expectation of privacy (in a way) that I don't wanna have get caught up in an exclusionary hearing over. Yes, I'm a public officer, and as such, inherently there should be no expectation of privacy (remember Miranda - anything you say can and will be held.....). BUT, it's easier and better if I just ask permission. If they say no, I just take really good notes (that are discoverable).

      Back to the original post....I think this kid will eventually win, and rightfully so.

      Comment


      • #33
        There is an expectation of privacy in a car. It has the same 4th Ammendment protection as your home.

        As I said, this law, if it is what it appears to be, is an ACLU thing to keep cops from recording lawbreakers. I think that the recorder acted "covertly" might have a bearing.
        "Say hal-lo to my leetle frahnd!"

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        • #34
          Originally posted by IMachU View Post
          In Calif, we have no laws like the one noted in the OP.
          Maybe I mis-understood what you were replying to, but...

          Cal. Penal Code §§ 631, 632: It is a crime in California to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication, without the consent of all parties.

          An appellate court has ruled that using a hidden video camera violates the statute. California v. Gibbons, 215 Cal. App. 3d 1204 (1989).
          http://www.rcfp.org/taping/states/california.html
          "Screw that. We can make bullets faster than they can make terrorists. Kill them all. Every last one." -Interceptor

          Comment


          • #35
            Maybe I'm misunderstanding what YOU'RE replying to, but the language you quote is sigfinicant:
            Cal. Penal Code §§ 631, 632: It is a crime in California to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication, without the consent of all parties.

            An appellate court has ruled that using a hidden video camera violates the statute. California v. Gibbons, 215 Cal. App. 3d 1204 (1989


            An interview is not an interception, nor is it confidential if given to a LEO. Almost all LE agencies tape interviews with suspects.

            I think the kid will lose his case.
            "Say hal-lo to my leetle frahnd!"

            Comment


            • #36
              Originally posted by Gene L View Post
              Maybe I'm misunderstanding what YOU'RE replying to [...] An interview is not an interception, nor is it confidential if given to a LEO.
              I wasn't arguing that it was nor responding to that part of the post.

              Originally posted by IMachU
              This looks like a good case to get a case law decision on. In Calif, we have no laws like the one noted in the OP.
              If IMachU was stating "we have no laws in California like" the one that was applied against the defendant in the news story, then he was incorrect.

              I also think the defendant will lose his case. The law in PA is pretty clear.
              "Screw that. We can make bullets faster than they can make terrorists. Kill them all. Every last one." -Interceptor

              Comment


              • #37
                No, I was stating we have no laws against PUBLIC taping (either video or audio) of conversations where there is no expectaion of privacy. This t-stop was initiated on a public street, hence no reasonable expectation of privacy and no laws against taping the contact.

                The code you are referring to is a tapping of a phone line, as in RICO type cases. There is a reasonable expectation of privacy during a phone call.

                Comment


                • #38
                  Originally posted by IMachU View Post
                  No, I was stating we have no laws against PUBLIC taping (either video or audio) of conversations where there is no expectaion of privacy. This t-stop was initiated on a public street, hence no reasonable expectation of privacy and no laws against taping the contact.
                  I'm no expert, but I believe that a conversation between a police officer and a motorist, who is sitting in his personal vehicle during a traffic stop, is not "public" and holds some expectation of privacy.

                  Personally, I would not expect members of the public to be privy to the conversation no matter what end I was on (as the officer conducting the stop or as the motorist being stopped).

                  Apparently, California law appears to agree:

                  Eavesdropping upon or recording a conversation, whether by telephone (including cordless or cellular telephone) or in person, that a person would reasonably expect to be confined to the parties present, carries the same penalty as intercepting telephone or wire communications.

                  Conversations occurring at any public gathering that one should expect to be overheard, including any legislative, judicial or executive proceeding open to the public, are not covered by the law.
                  http://www.rcfp.org/taping/states/california.html
                  "Screw that. We can make bullets faster than they can make terrorists. Kill them all. Every last one." -Interceptor

                  Comment


                  • #39
                    If you are sitting in your car, and a passer-by hears the conversation (or happens to record part of it while legally being where he/she is), how can you expect privacy? Don't get me wrong (again) - I try to be as discreet as is practical when dealing with someone on an enforcement stop. But in a public place, there is no reasonable expectation of privacy (as paragraph 2 in your quote points out).

                    If I stop you in a public place, that is considered a gathering.
                    Last edited by IMachU; 06-12-2007, 05:06 PM. Reason: clarification

                    Comment


                    • #40
                      No, a conversation with a police officer has no expectation of privacy under any circumstances. Otherwise, any crime admitted to would not be prosecutable.

                      The only communication privledge acknowledged by the US Court system, and most states, is conversations between spouses. And that's only conversation. Acts are not covered, but the law seems to be leaning that way. So, a spouse cannot (even if he or she wants to) testify to a confidential conversation, and "confidential" means between them with no one else present.

                      Once in custody, Miranda must be read. That invokes his right to "privacy" in a way, since cops must stop the interview.

                      Nor is there an expectation of privacy in a police car, or in a jail. Jailers can moniter telephone calls, except from attorneys, to see if there is an escape risk.

                      States may limit the officer's ability to record these conversations, but not to moniter them.

                      Back in the day when you could pick up cellphone conversations on a stereo, in some cases, we made a case against a guy for drugs. We were allowed to listen to the conversation, since the man's expectation of privacy wasn't reasonable (everyone knew a stereo could pick up a cellphone) but we could not record them.

                      We could act, however, on the information we heard. Just had to take notes.
                      "Say hal-lo to my leetle frahnd!"

                      Comment


                      • #41
                        Originally posted by LPSS View Post
                        I'm no expert, but I believe that a conversation between a police officer and a motorist, who is sitting in his personal vehicle during a traffic stop, is not "public" and holds some expectation of privacy.

                        Personally, I would not expect members of the public to be privy to the conversation no matter what end I was on (as the officer conducting the stop or as the motorist being stopped).

                        Apparently, California law appears to agree:

                        http://www.rcfp.org/taping/states/california.html
                        I'm no lawyer so I can't state an official legal argument, however, my citizen intuition tells me the root of these wiretapping laws can be found in a CITIZEN'S right to privacy guaranteed by the U.S. Constitution. The Bill of Rights is there to protect the INDIVIDUAL from the government not protect the GOVERNMENT from the individual. When you pin on the badge and go to work, you are not conducting your own personal business. You are an agent of the state and are conducting the state's business. I would support a citizen audio and video recording an agent of the state interrogating them in their own home. The citizen is the one who has a right to privacy, NOT the state. I believe it is an egregious misinterpretation to believe that the law is intended to shield public servants from the light of day being shined on the execution of their official duties. In fact, if they are performing their duties in an exemplary fashion, they should welcome the audio and video recording of it to substantiate their professional behavior. The opposite would in essence provide a shield to hide unprofessional and even worse illegal behavior. This would be contrary to the public good and contrary to an open government in a free society. I sincerely hope some court spells this out in a manner as clear as this before this country turns into a police state. If it has to go all the way to the Supreme court, so be it. Just tell me where to send my check to help pay the legal fees........So that's my two cents worth....I guess we shall see what the court(s) have to say about it.
                        Jubilant Patriotic Republican

                        America gave Obama the benefit of the doubt when they elected him. Obama is now giving America the doubt of the benefit of his governance......Change you can bereave in!..JPR

                        Comment


                        • #42
                          This is not a Bill of Rights issue. It's a Pennsylvania law issue. It is not an intrusion on a citizen by the government, it is an infrusion on the government by an individual.

                          It is essential to understanding this whole thing to recognize that.

                          That state decided to extend an individual's rights by forbidding the recording of conversations without permission. This goes beyond what the 4th and 5th Ammendment provide, plus it's not the government that's being charged with recording a citizen, it's a citizen being charged with recording an officer.

                          Send you check to me. I'll put it to good use.
                          "Say hal-lo to my leetle frahnd!"

                          Comment


                          • #43
                            Originally posted by Gene L View Post
                            This is not a Bill of Rights issue. It's a Pennsylvania law issue. It is not an intrusion on a citizen by the government, it is an infrusion on the government by an individual.

                            It is essential to understanding this whole thing to recognize that.

                            That state decided to extend an individual's rights by forbidding the recording of conversations without permission. This goes beyond what the 4th and 5th Ammendment provide, plus it's not the government that's being charged with recording a citizen, it's a citizen being charged with recording an officer.

                            Send you check to me. I'll put it to good use.
                            The last I knew Pennsylvania was one of the 50 states. Did they succeed from the union recently? In addition, when I took business law in college, it was clearly explained to us that federal law trumps state law. Unless that has changed, Pennsylvania lacks the authority to pass and execute laws that violate the Bill of Rights. If what you are saying is that hey intended to provide citizens with more rights to privacy with this law, then that is fine with me. I would certainly hope though that they did not intend to provide the state with a right to privacy. That is contrary to open and accountable government. And it is also a very dangerous course to follow in MHO. Perhaps a Pennsylvania judge will rule this way and make it clear to those who believe that their official actions deserve a cloak of secrecy.

                            No thanks, i will not be mailing you my check, IMHO you are on the wrong side of this issue.
                            Last edited by JPR; 06-12-2007, 06:11 PM.
                            Jubilant Patriotic Republican

                            America gave Obama the benefit of the doubt when they elected him. Obama is now giving America the doubt of the benefit of his governance......Change you can bereave in!..JPR

                            Comment


                            • #44
                              If what you are saying is that hey intended to provide citizens with more rights to privacy with this law, then that is fine with me. I would certainly hope though that they did not intend to provide the state with a right to privacy. That is contrary to open and accountable government

                              That is precisely what I'm saying. This law is far more harmful to law enforcement officers than to civilians. It makes it impossible to record evidence from a suspect in an undercover situation, for example.

                              It does NOT extend the power of the State to intrudge...PA can't do that, because of the Bill of Rights. However, the Bill of Rights is boilerplate: the most a state can interfere with a citizen's rights. A state can expand those rights regarding search and seizure, and PA apparently has.

                              For example, the state of PA could outlaw all searches by PA officers under any circumstnace (it won't, but it could.) However, it could not make a search without a warrnt legal. That's the Bill of Rights guarantee to you.

                              To their chagrin. It's like NC passed a "Hate Crimes" law, and among the first prosecuted were some blacks for beating up a white man. The ACLU moaned, "That's not what this law was inteneded to do."

                              I'm sure that's not what the "no recording" law intended to do, either. But it's law, and it works both ways.
                              Last edited by Gene L; 06-12-2007, 06:38 PM.
                              "Say hal-lo to my leetle frahnd!"

                              Comment


                              • #45
                                Originally posted by JPR View Post
                                I can't believe what I just read.....It's OK for the police to record video and audio of the citizens they stop but when the citizens do the same it is a felony? This is not only a travesty of justice, it is a dangerous path to take to say public officials have a right to privacy when performing their public duties in public. That is absurd. By this logic, the press should be getting arrested every day. Can you spell d-o-u-b-l-e ...... s-t-a-n-d-a-r-d? And here I thought my state was bad. The more I read here of what is going on across the nation, the more I realize that California is not necessarily any worse, and in fact may be better, than some other states.

                                Of all states though, it is an extra disgrace coming from PA. I vote to relocate the liberty bell to somewhere else.

                                I never thought I'd see the day when I would support the ACLU in a case. I hope they take this kids side and win him a huge lawsuit.
                                Actually JPR you're wrong in this one. IIRC in Pa, Due to this particular law, Oficers that have Dash cams, MUST advise the person stopped that they are being recorded audibly, and, i believe ask consent for the audio to continue. If the motorist denies consent tey have to turn the audio mic off. The PD's are bound by the same laws, so there is NO Double Standard in this. Hopefully someone from Pa can Clarify this, but this is the way i read the statute, and i know this is the way some pd's in Pa operate with dash-cams.

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