DISCLAIMER: The opinions and analysis expressed in this post should not be construed as legal advice, nor do they establish any attorney-client relationship. Consult with an attorney to ensure you understand the law and any consequence that might stem from your actions or inactions.
While most officers treat people fairly and courteously, there will always be instances where some officers enter questionable territory or outright violate people’s rights. In these cases, justice is usually hard for the citizen to obtain, as the evidence usually boils down to “he said/she said.” In such cases, deferrence is usually given to the Police. Wouldn’t it be easier to prove your case if you had an actual recording of the encounter, as then you would have irrefutable evidence of the alleged violations of your rigths? It certainly would. But unfortunately, the very tape you had hoped would exonerate you and bring you justice could very well send you into a legal nightmare you had never imagined. You see, in Massachusetts, the Supreme Judicial Court held in Commonwealth v. Michael Hyde, 434 Mass. 594 (Mass. 2001), that secretly recording a police officer constitutes a violation of Massachusetts’ wiretapping statute (Chapter 272: Section 99. Interception of wire and oral communications).
The facts of the case are fairly straightforward. On October 26, 1998, Michael Hyde was stopped by the Abington police in his white Porsche for having an excessively loud exhaust system and an unlit rear license plate. The stop quickly became confrontational, with Hyde insisting that his long-hair and appearance was the reason for the additional scrutiny paid to him that night. Unbeknownst to the officers, Hyde had been recording the entire traffic stop. Hyde then filed a complaint against the officers, and used this recording as evidence. The officers were cleared, and much to Hyde’s dismay the department filed charges against Hyde for having secretly recorded the encounter. Hyde was convicted and appealed up to the Massachusetts Supreme Court (the highest court in Massachusetts). The court affirmed his conviction.
Without getting into all the nitty-gritty legal details and arguments, the central issue is whether the right not to be secretly recorded extends to Police officers while on duty. This was the thrust of the defendants argument - that the law should not apply by virtue of the officers being on duty as they should have no right to privacy while acting in an official capactiy. The court rejected this argument, noting no such exception in the language of the law in question. So how do you get around the wiretapping law and be able to record a traffic stop? The cout said that “the problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.” Id. at 605. So, if you want to record a traffic stop, MAKE SURE THAT THE OFFICER IS AWARE THAT HE OR SHE IS BEING RECORDED.
Of course, this requirement can have all sorts of unintended consequences. As the Justice Marshall notes in her dissenting opinion, had George Holliday recorded the Rodney King beating in Massachusetts, “Holliday would have been exposed to criminal indictment rather than lauded for exposing an injustice.” Id. at 606. The same could be said if someone in a passing car were to record a traffic, unless they actually went up to the officer to tell them they were being recorded.
It should be noted that this law is a Massachusetts law. The law in other jurisdictions can be quite different. That said, be advised that you could be in a jurisdiction where secretly recording a police officer can get you into legal trouble.
on August 15, 2008 at 5:05 pm Secretly Recording A Traffic Stop In Massachusetts Will Land You In The Slammer [Novelties] - Jalopnik wrote:
[...] just an ass looking to get one over on the cops. Karma, it seems, is indeed a bitch. [Details at PansyPatrol (what a great name)]; Photo from [...]
on August 15, 2008 at 5:07 pm Auto Clerks » Secretly Recording A Traffic Stop In Massachusetts Will Land You In The Slammer [Novelties] wrote:
[...] just an ass looking to get one over on the cops. Karma, it seems, is indeed a bitch. [Details at PansyPatrol (what a great name)]; Photo from [...]
on August 15, 2008 at 5:21 pm Anthony wrote:
That being said Once you inform the officer, does he have the right to tell you to turn it off? Also by that same law, the officer’s dash cam recordings, even during an illegal crime or chase would, have to be treated the same way since he did not inform the driver ahead of time?! This would also make any toll or moving violation cameras pictures illegal as well.
on August 15, 2008 at 5:37 pm Noah wrote:
I’m not 100% certain what the law is regarding the officer asking you to turn it off once he is alerted, but I believe the answer is no, he cannot. I know that with photography, your photos/film are you personal property and you cannot be deprived of them without due process of law per the constitution. The officer asking you to turn it off and/or seizing your recording is not due process (though that doesn’t mean a court won’t interpret it as such).
Good points about his dash cam and tolls! That would likely hinge on whether someone is expecting to be recorded in those situations. That would definitely anger a lot of people if you sued a police department for illegally recording a traffic stop!
on August 15, 2008 at 6:30 pm Jay Belknap wrote:
Just wanted to thank the Pansy Patrol for updates to the site, they provide a good read. Keep it up guys.
on August 16, 2008 at 12:34 pm Noah wrote:
Thanks Jay, we do what we can.
on August 16, 2008 at 3:40 pm Nick wrote:
The wiretapping law prohibits intercepting or recording oral communication. Dashboard cameras in police cars (as well as most other surveillance cameras) just record video, so there is no problem.
on August 16, 2008 at 5:01 pm Noah wrote:
Thats not entirely true. I have definitely seen some videos taken by dash cams that included sound, though I don’t know what sort of dash cams departments in Massachusetts use, if any.
on August 19, 2008 at 1:57 pm dalesd wrote:
If you tell the cop you’re recording he’ll just demand you turn it off. If you don’t you’ll get arrested for obstruction of justice (or some other BS).
If you don’t tell the cop you’re recording, and they turn the tape in to the police and file a complaint, you’ll get arrested and go to jail.
So it’s a lose-lose, right? No, there’s a third option. Publish the video on youtube (or get a 3rd party to do it). Expose the misconduct first, to get public support on your side.
on August 19, 2008 at 2:05 pm Noah wrote:
Dalesd, you are definitely right that it is a lose-lose situation. I have read a number of incidents recently where various charges have been levied against individuals stemming from similar situations.
I wouldn’t classify publishing on youtube as a valid 3rd option, however. At least not where the video was recorded in Massachusetts. Your basically arguing that with enough public support on one’s side, the government will be forced to change the law. Given the recent trend in the US towards strengthing governmental power, I don’t think the legislature would rewrite this statute. I also don’t see the Supreme Judicial Court of Massachusetts overruling itself simply on the basis of public opinion absent any change of the law by the legislature. That said, you are more than welcome to be the test case