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  • #46
    I think what is being overlooked in this issue is that the audio recording was made by a third party without the consent of the two parties participating in the conversation.

    Regardless of whether the conversation between police officer and motorist can be considered public or private, the fact remains that Pennsylvania law makes no distinction when it is the expectation that the communication would not be recorded.

    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

    Re: IMachU

    I apologize if I was in error. California law likely varies.
    "Screw that. We can make bullets faster than they can make terrorists. Kill them all. Every last one." -Interceptor

    Comment


    • #47
      Originally posted by LPSS View Post
      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.

      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.
      You left out the most important part of the statute you quoted in part:

      "Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of "oral communication," 18 Pa. Cons. Stat. § 5702."Open air conversations are non-electronic.

      Also, whether or not a passenger can be questioned by the officer is a 4th Amendment issue and has absolutely nothing to do with any REP issue on the part of the officer as it pertains to that passenger's recording the conversation taking place in his known presence. It doesn't matter that the third person isn't participating in the conversation either; what matters is only that his presence is known to the person being taped. For example, three people can sit together at a table where only two actually speak. If the third (silent) person tapes the conversation, that's fine. If he's hiding under the table, that's a different story. Same on the phone: if you announce that another person is present on the line, that third person can tape the call with only the consent of one person in the 38 one-party consent states even if he doesn't participate in the conversation.

      If the person recording the conversation had been hiding under a blanket in the car's backseat, or in the trunk, that would violate the REP of the person being recorded through the air; but not if the conversation was being held in his obvious presence, regardless of whether or not he was actually participating. I'm pretty sure that in one-party consent states, even that would be fine as long as one person being recorded (like the driver) consented to it.
      Last edited by ProWriter; 06-12-2007, 07:12 PM.
      No longer ignoring anybody here, since that psycho known as "Josey Wales" finally got the boot after being outed as a LE imposter by B&G978. Nice job.

      Comment


      • #48
        Originally posted by ProWriter View Post

        Huh? There are only about a dozen states that have ever required the receiver's consent to tape a phone conversation. The other 38 states allow any party to the conversation to tape phone calls at will without ever disclosing it to the other party.
        http://www.rcfp.org/taping/

        Comment


        • #49
          Originally posted by ProWriter View Post
          You left out the most important part of the statute you quoted in part:
          Trial court opinion qualifies that 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.

          It is the expectation that the communication would not be recorded that triggers the wiretapping law's protections.
          http://www.rcfp.org/taping/states/pennsylvania.html

          So, to record an oral conversation in the state of Pennsylvania, two conditions must be met: 1) No reasonable expectation of privacy exists, and 2) No reasonable expectation that the conversation may be recorded exists.

          The second condition was not fulfilled in the story posted in this thread, and the first arguably so. This, apparently, is also the understanding of the district attorney, otherwise he wouldn't be filing a charge of felony wiretaping in this case.
          Last edited by LPSS; 06-13-2007, 12:06 AM.
          "Screw that. We can make bullets faster than they can make terrorists. Kill them all. Every last one." -Interceptor

          Comment


          • #50
            Like was said (or at least alluded to) earlier on in this thread, there is probably more here than meets the eye. My gut tells me that they want to drill this guy for some reason. To PROSECUTE a FELONY for something like this seems extreme to say the least. Maybe this guy is a bad actor and this is all they can get him on. Then again, maybe not. In any event, if this prosecution is successful and the info. presented thus far is accurate, I think it sets a very disturbing precedent. If I were on a jury, I would have to wonder what the officer had to hide. If he was proud of his work I can't see why he would not want a record of the incident to prove how professional he is. It would be interesting to know the background of the accused as well as the background of the officer involved in this incident. That might fill in some of the missing pieces here.

            Someone said earlier that a citizen has no legal right to an expectation of privacy when dealing with the police. If this is true, it seems the reverse should also be true. Let's shine the light on all parties involved so that no one can hide their bad deeds in the darkness. If the law needs changing, then so be it. After all, laws are created to serve men, not the other way around....

            And as Forest Gump would say...." And that's all I have to say about that."
            (Or something like that.)
            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


            • #51
              You need to make your argument to the state of Pennsylvania, not here.

              They're the one with the law. In my state, and in most others except on the left coast and the Socialist North, you can record any conversation you're a party to. Which means you can record your phone calls if you like, without notificiation.

              Two other points that occurred to me: the law does not prohibit the recording of Law Enforcement officers specifically, it prohibits the recording of ANYONE, at least that's the way it was presented.

              Second, not only does a passenger not have an expectation of privacy in a car, he or she has no "standing" to object to (for example) a search of that car that uncovers evidence of a crime. The driver/owner has standing. Not the passenger.
              Last edited by Gene L; 06-13-2007, 10:10 AM.
              "Say hal-lo to my leetle frahnd!"

              Comment


              • #52
                Originally posted by JPR View Post
                To PROSECUTE a FELONY for something like this seems extreme to say the least.
                The legislature wrote the law as a felony. The DA can't arbitrarily decide to charge it as a misdemeanor.

                Originally posted by JPR
                If he was proud of his work I can't see why he would not want a record of the incident to prove how professional he is.
                There is such an official record. It's on the dash camera from his police cruiser. Those recordings are archived and, I'm sure, will be presented in this case as evidence.

                Bottom line is, the defendant knew he shouldn't have been secretly recording the traffic stop, otherwise he wouldn't have been trying to conceal his camera. That's just common sense. How many people do you know that would be comfortable with their conversations being secretly taped? Even if you have nothing to hide, it's awkward and it's a distraction.

                Had the guy said, "Officer, driver, do you guys mind if I video/audio record this?" he'd have no problem right now. Lesson learned for him.
                "Screw that. We can make bullets faster than they can make terrorists. Kill them all. Every last one." -Interceptor

                Comment


                • #53
                  Originally posted by LPSS View Post
                  ........The legislature wrote the law as a felony. The DA can't arbitrarily decide to charge it as a misdemeanor.........

                  I'm not in law enforcement but I've been around the block a few times and know/have known folks in many walks of life including our DA's office and Public Defenders office so I know they do not HAVE to prosecute to the full extent of the law. They can reduce rape charges to tailgating if they want to or even drop the charges altogether which if I were King I would suggest in this case. I'm sure this guy has already learned his lesson and I would also think the DA has bigger fish to fry. A felony is a serious thing to have on your record. There is more here than meets the eye.
                  Last edited by JPR; 06-13-2007, 03:37 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


                  • #54
                    Is there any reason they should reduce the charges to a misdemeanor?
                    "Say hal-lo to my leetle frahnd!"

                    Comment


                    • #55
                      Originally posted by JPR View Post
                      They can reduce rape charges to tailgating if they want to or even drop the charges altogether which if I were King I would suggest in this case.
                      To reduce a charge is not the same as to change the charge entirely. You can reduce a charge from Theft II to Theft III, but you can't reduce a rape charge to a tailgating charge.

                      As far as I know, there is no such thing as misdemeanor wiretaping in Pennyslvania. What you're suggesting should occur might happen if the prosecutor decides to offer a plea bargain to the defendant. In that case, he would need to change the charge to something relevant but less severe, perhaps obstruction of justice or something similar.
                      "Screw that. We can make bullets faster than they can make terrorists. Kill them all. Every last one." -Interceptor

                      Comment


                      • #56
                        Originally posted by Gene L View Post
                        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.
                        No it doesn't. Thats why an officer can search a car(except the trunk) on probable cause. If it had the same protection as a home, it would require a warrant.

                        Comment


                        • #57
                          Originally posted by Gene L View Post
                          Is there any reason they should reduce the charges to a misdemeanor?
                          Common sense, perhaps? The charges won't stick, even if the DA takes it up. Waste of taxpayer $$
                          Last edited by bigislander72; 06-13-2007, 04:33 PM.

                          Comment


                          • #58
                            Originally posted by bigislander72 View Post
                            Common sense, perhaps? The charges won't stick, even if the DA takes it up. Waste of taxpayer $$
                            Why won't they stick? The actions of the guy who got arrested seem to be exactly what the state of PA wants to eliminate...taping a conversation covertly.

                            I think you're influneced because the victim in this case was a cop. I doubt you would be whining so loudly if the victim was a housewife.
                            "Say hal-lo to my leetle frahnd!"

                            Comment


                            • #59
                              Originally posted by Gene L View Post
                              ...........I think you're influneced because the victim in this case was a cop. I doubt you would be whining so loudly if the victim was a housewife.
                              .............

                              That is an interesting point. I wonder where the folks who have posted here would be standing if it was a LEO who was facing felony charges for recording the housewife he/she pulled over. I have a feeling the posts would read quite differently. I also have a feeling the DA would have never filed the charges in the first place.
                              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


                              • #60
                                Originally posted by JPR View Post
                                .............

                                That is an interesting point. I wonder where the folks who have posted here would be standing if it was a LEO who was facing felony charges for recording the housewife he/she pulled over. I have a feeling the posts would read quite differently. I also have a feeling the DA would have never filed the charges in the first place.
                                That is, however, not what happened here. You're also forgetting that the taper was taping the driver without the driver's permission. So, two counts.

                                Most police agencies regularly record pulling a car over, and the conversation. It is for officer's protection against false charges and as evidence, or in extreme cases, against violence committed on the officer. I don't know, but I'll bet PA LEOs are also using cameras.
                                "Say hal-lo to my leetle frahnd!"

                                Comment

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