Recording police contacts

[Brash47]

Before I see the question posted here due to a thread in the general section, I am going to post the answer now.

The question:
Is is legal for the citizen to record (video, audio) during a traffic stop, a contact, or a detention.

Answer:
Yes

Although there are criminal codes listed that state you cannot record a PRIVATE conversation without the consent of both or all involved parties, recordings made during a police activity are by no means considered a private conversation.

On the contrary, the Supreme Court has determined that there is NO expectation of privacy while police business is being conducted, especially in a public place.....meaning on the street if your in a car.

You may record the entire detention from start to finish if you so desire, you don't have to have permission, you don't have to let the officer know that you are recording the stop. It is your right as a citizen, just as it is the officers right to record the stop himself without your consent or letting you know about it.

BUT:
Do not expect the officer to stop what they are doing so you can get the recording device up and running. IN FACT, digging in your purse, around the car or moving around to find your recording device is usually enough to perk the officers personal safety. If you are then told to stop moving around, then you must follow that order. It does not matter if you tell him you are getting a recording device...because, yes, people lie to us.

It's best to have the device handy where you can get to it quickly in plain view. If you have the device in hand, it would actually be illegal for the officer to tell you not to turn it on, as this is a violation of your personal rights...as determined by the Supreme Court. Let the officer know what your doing though. If the officer still says no, follow his order, yet if you feel you were wronged, make a complaint.

I personally record traffic stops. That evidence can be used in court. If you feel that the officer recorded the stop, then before court, during the time given by the court, you can request a copy of that audio or video recording. They HAVE to provide that to you, if they don't, ask that the case be dismissed against you for the prosecution (officer) failing to provide any evidence that you legally requested.

Once again, its legal to record any contact between you and police. Yet, do not disobey a direct order to stop your movement if the officer feels threatened. The Supreme Court has also found that it is reasonable for an officer to handcuff you for HIS/HER safety during a detention if you continue to do actions that the officers feels were unsafe.

brash

[trkdydumper]

mental note... keep a recorder in your tank bag.

[cardinal03]

Good info, thanks.

I think it's supremely important for people to remember that no matter how they FEEL, once a police officer gives an order you should always follow it.

If the order was unlawful, you'll be able to show so in court.

If the order was lawful, however, and you failed to comply just because you THOUGHT you were right and the officer was wrong, you are going to be in a lot of trouble.

From reading any of the posts on this board that are made by non-LEOs it is very clear that people have a very poor idea of what the law is, but think they have a good understanding of it nonetheless.

[xlcr]

Both times I've recorded an interaction with a CHP officer (a BS stop of someone else and a fatal accident where the cop tipped us off to his intentions to lie about the road condidtion), they've tried to confiscate the tape.

I guess it interferes with attempts to apply their creative writing skills they honed at the academy. I'd like to see a lawyer respond to an officer's claim to have an audio tape that confirms their version with, "Well why don't you play it for us?"

Or is that how the case against the flight attendants in Solano County got laughed out of court?

[dan p]

Originally posted by xlcr


Or is that how the case against the flight attendants in Solano County got laughed out of court?

What case is that?

[xlcr]

Originally posted by dan p
What case is that?

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2001/04/03/MN60657.DTL

[RolnCode3]

This could work to my advantage too. Any and all admissions you make to me are now memorialized. Wouldn't that be funny...I play your tape and sink your boat??:confused

[Lester Green]

Originally posted by RolnCode3
This could work to my advantage too. Any and all admissions you make to me are now memorialized. Wouldn't that be funny...I play your tape and sink your boat??:confused
why would that matter, you take good notes right?:teeth

[JPM]

Please post recent case law or links to.

[}Dragon{]

Originally posted by JPM
Please post recent case law or links to.

+1 (I'd like to see any case law ref's if possible.)

I completely agree: if you are doing the job right- you should NOT have anything to worry about.

I filmed some footage for training and videotaped a negative 'encounter' with some juveniles... the 'mouthy' one wanted to make a complaint. We were met by his Dad at the PD, nice guy, he was OPD and invited him to watch the video... no complaint:laughing

However- I did mention in the other thread not to go digging thru your tank bag to turn on a recorder... furtive movements anyone?

[Brash47]

http://docket.medill.northwestern.edu/archives/000861.php

http://www.boston.com/news/daily/13/police_recording.htm

Now before you go saying this does not apply to California, I'm sorry, but it does. It has been common knowledge since the early 90's (aka. Rodney King) that recording public police functions and conversations is completely legal.

I know I may be busting some preconceived, or bad info bubbles here, but ask any DA, prosecuting or defending attorney...recording traffic stops, police contacts with other people, police contacts of yourself is perfectly legal. Although the 9th COA addressed a different issue in the case above, the parameters and laws are set now, out of that case. Because the 9th COA dealt with the case, its applicable to all states at this time now.

If you notice, the US Supreme court did not reverse the actions of the lower courts in dropping the case for the recording, they merely reinforced the notion that if you can arrest for ANY crime, the the arrest is lawful, even if one of the reasons you arrest is later deamed to be not an arrestable offense.

It was amazing to see the Washington officers backpedal and try to say they arrested the guy for impersonating a police officer, when the only crime he was charged with was for the recording. As the 9th COA stated.....there is no expectation of privacy during a police encounter in a public place.

brash

[JPM]

Unless I missed something in those two articles, I don't see it. The first link and the Supreme court case just ruled on the arrest and whether it violated the defendants 4th amendment rights; there was no decision at all on if the recording was legal or not. And the second link shows the law upheld and a conviction in Boston; which in not covered by the 9th circuit court. So I'm not sure how this has been to the final test. Do you have any reference on specifically the recording issue from the US Supreme Court?

PS- As I have said before I am not a lawyer and not really cared much about this law as I don't care if someone wants to record me. But I have noticed missing any comments from our local lawyers. Any lawyers care to contribute on their recommendations?

[Brash47]

If you read the entire case, the 9th COA addresses whether or not a police car stop is a private conversation. I don't know where you are getting you information from, but it is common knowledge in the LEO community that any contact with a citizen is not private, unless specifically determined at the time.

If you use the laws you keep citing as fact, it states that a PRIVATE conversation cannot be recorded. The 9th COA clearly pointed out that a police car stop is not in any way a private conversation. Because the 9th COA is a lower US court, it is considered as fact when determining case law.

In 1983, laws were passed in California stating that court decisions based in OTHER states are considered case law in determining California case law, it was not so until that law came into effect. That law was brought about due to California using only state law to determine the legality of case law...Californians, in an effort to give more rights to victims, because California liberal courts were always finding for criminal rights, VOTED that law into effect.

Case law in Washington state determines case law in California also. Read the entire case and you will clearly see that the judge that ruled on the case determined that there is NO expectation of privacy. When the case hit the US Supreme Court, there was no dissention in the statement that the arrest had no basis. The arrest was found to be illegal by the Washington State lower courts. There was never a dissention in regards to the illegality of the arrest. The fact that the case was immediately dropped was enough to show that it was perfectly legal to record the stop.

The US Supreme Court only dissented with the 9th COA in regards to whether at the time the arrest was legal based upon the officers knowledge (although totally wrong) at the time. Even though it was determined that the arrest itself had no grounds, the officers were not found liable.

I ask you to talk to any District Attorney on this one and you will get the same answer. Police stops are not in any way a private conversation. If it were, why is it that every recording you see of police bad conduct is never prosecuted for illegally recording a private conversation.

brash

[JPM]

However the case in Boston was upheld and the conviction stood as they are not covered the 9th circuit court. Meaning that final case law by the US Supreme Court has not been decided since it’s upheld in some circuits and not in others. All it would take is a 9th circuit case to make it to the Supreme Court to get a final binding case law in all states. And we all know how often the Supreme Court overturns the 9th circuit circus.

[Brash47]

Ugh, were beating a dead horse. We all know it is perfectly legal to record police stops. It is done all the time without anyone being prosecuted, hell, there was a camera phone video of officers shooting an innocent man, with audio, that was perfectly legal to record.

Due to that recording, the officers could not come up with some bullshit story to cover his idiocy. There has been at this time no arrest or conviction for the recording, in fact it has been all over the media. How much more proof do you need that a police stop is not a private conversation. I would urge you to talk to a local DA on the matter if you think you can arrest someone for that section. I would hate for you to get into any trouble for a legal premis that you don't completely understand.

I'm not saying that you are incompetent in any way, but your misunderstanding of this law is enough to get you fired if you take action in accordance with what you THINK is right as opposed to what IS right. Further, based upon the premis set in the Washington State case, you would be civily hanging your ass out to dry.

brash

[xlcr]

Originally posted by Brash47
Ugh, were beating a dead horse. We all know it is perfectly legal to record police stops. It is done all the time without anyone being prosecuted, hell, there was a camera phone video of officers shooting an innocent man, with audio, that was perfectly legal to record.

Due to that recording, the officers could not come up with some bullshit story to cover his idiocy.


But he did come up with a BS story. Then he changed it when he saw the tape.

Now his sleazy lawyer is claiming that the victim reached into his jacket. As he lowers his hand to the ground, his hand passes between his jacket and the camera. The lawyer is using the 2 dimensional image as "proof" that the victim reached into his jacket.

[spddrcr]

So if its legal to film a stop do i have the right to get my tape back from the elk grove officer that took it? how would i go about it?
more here:

http://www.bayarearidersforum.com/forums/showthread.php?s=&threadid=175940

[}Dragon{]

Originally posted by spddrcr
So if its legal to film a stop do i have the right to get my tape back from the elk grove officer that took it? how would i go about it?
more here:

http://www.bayarearidersforum.com/forums/showthread.php?s=&threadid=175940

Yes... contact Elk Grove PD. Ask for the watch commander.

[motorman4life]

Originally posted by spddrcr
So if its legal to film a stop do i have the right to get my tape back from the elk grove officer that took it? how would i go about it?
more here:

http://www.bayarearidersforum.com/forums/showthread.php?s=&threadid=175940

I answered this question on page 2 of that thread, in part:
If the OP gave up the tape voluntarily, s/he won't have much to go on. If s/he gave it up becasue they felt coerced at the time; the Sgt. On scene (the one that smoothed everything out) would have been the best one to address this with, at the time.

If an officer wants to take anything from you against your will, do not resist, but verbally ensure it is very clear to them that you are not giving it up willingly and you are merely submitting to their legal authority and/or are being compelled to do so as a result of their coercion. Demand a written receipt and case number. Ask for the code section or ordinance that gives them the authority to take it. Ask for the name and phone number of their Watch Commander. Go directly to the station and arrange to meet with the Watch Commander to ask when the item(s) will be returned and if it was not provided to you on the scene, ask under what authority the item(s) were taken/confiscated, without your consent.

Options now?
1) Demand the return of the items (tapes) and an apology from the officer and/or their supervisor, and/or The Chief (good luck).
2) Demand the immediate return of or a written receipt for the items.
3) File a formal complaint with the agency in writing.
3) File a lawsuit for violation of civil rights.
4) All of the above.
5) None of the above.

[Brash47]

Yea, what he said.....

As usual, MM4L is much more eloquent than I am!

brash

[motowolf]

I beleive Brash is correct, but he citing case law. It is ESSENTIAL to add that in the real world you may make an encounter with law enforcement more difficult by focussing on recording the encounter. It puts most people in the wrong frame of mind. They focus on the officer making a mistake. Just admit your errors, explain and apologize. Almost always works. It does a disservice to citizens to advise them to record conversations. Ride hard, MW

[Var]

Originally posted by motowolf
Just admit your errors, explain and apologize. Almost always works. It does a disservice to citizens to advise them to record conversations. Ride hard, MW

dont admit your errors, dont explain, dont apologize. be as vague as possible in answering questions. LEO's dont joke around or make smalltalk for no reason. They are always trying to screw you for something. I dont think anyone is advising anyone to record, but dont take the toughguy act, dont be intimidated. If you're wrong then you pay, and if not then you'll have proof.

[motowolf]

Sure, go for vague. Take zero responsibility. Those are the tickets I write.

My world is almost all cops and very few are even predominately trying to screw anyone over. Being adverserial and believing you are going to out smart the cop are the biggest and most costly errors you will make in these situations.

And I did read it that he is suggesting recording police contacts.

Good luck, MW

[Var]

it works for me. there are times where LEO's get you to admit to something they otherwise weren't sure of. I've seen it happen and that's my experience.

[Dean129]

Most cops audio record their encounters anyhow, so it shouldn't be an issue if the cicilian records too. Any objection would tend to make me think that the police have something to hide. (I am purely talking about during a traffic stop)

I also agree that I'd be a little apprehensive (to say the least) if I made a traffic stop on a moto and on approach I see the rider messing around feverishly with something in his tank bag.

[xlcr]

Originally posted by Dean129
Most cops audio record their encounters anyhow, so it shouldn't be an issue if the cicilian records too.



It is if the "civilian's" tape doesn't agree with what the cop said was on his tape before he erased it.

[mlm]

I've known quite a few cops. There are a few that are out to get you, and you never know.

[motowolf]

Any copper who is trying to screw people over should take off the badge and walk away. I apologize for those sad souls. Most cops are not those people. Brash is correct in advising you have the right to tape (audio/video) police contacts in public places. I just caution not to turn a contact that may have been positive into a confrontation by focussing on the worst case scenerio. Cheers, MW

[saizai]

(bump due to new thread about this)

My guess is that if police made an Issue of this, it would not be on the grounds of privacy but of "interference". Brash, the cases you cite don't address this - e.g. if it is "interfering" to record your or your friends' conversation with police, or at what point it becomes so.

[-Baker-]

I answered this question on page 2 of that thread, in part:
If the OP gave up the tape voluntarily, s/he won't have much to go on. If s/he gave it up becasue they felt coerced at the time; the Sgt. On scene (the one that smoothed everything out) would have been the best one to address this with, at the time.

If an officer wants to take anything from you against your will, do not resist, but verbally ensure it is very clear to them that you are not giving it up willingly and you are merely submitting to their legal authority and/or are being compelled to do so as a result of their coercion. Demand a written receipt and case number. Ask for the code section or ordinance that gives them the authority to take it. Ask for the name and phone number of their Watch Commander. Go directly to the station and arrange to meet with the Watch Commander to ask when the item(s) will be returned and if it was not provided to you on the scene, ask under what authority the item(s) were taken/confiscated, without your consent.

Options now?
1) Demand the return of the items (tapes) and an apology from the officer and/or their supervisor, and/or The Chief (good luck).
2) Demand the immediate return of or a written receipt for the items.
3) File a formal complaint with the agency in writing.
3) File a lawsuit for violation of civil rights.
4) All of the above.
5) None of the above.


This is the best information in which I had to learn MYSELF!!! East Bay Regional Park Police took my tape and I told the Officer I didn't want to give it to him and he said I have too...so I complied but then filed a complaint and then a hearing then an apology letter sent to me and I haven't heard from that Officer again...in fact his partner was sending out threats to other riders to inform me that he is looking for me.

One year later Concord PD took my tape (It was new and blank) and let us all go but I filed a complaint and they said come back in one year...I figure I'll let this one go due to the tape being blank. LOL I have no idea why it was blank or new for that...

Foot note to other BARFers keep in mind these LEOs here on BARF are riders and friends within our community who take time out of their day to help or to inform us non-leos. :thumbup

[Lester Green]

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