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Thread: State V. Cassad Et al

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    Regular Member TechnoWeenie's Avatar
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    We all know (or should know) about State V. Cassad, There's a lesser known case.... Link

    City Of Auburn v. Edward Kelly


    A gentleman was stopped and arrested for DUI, he contested the recording (audio/video) of the stop, the case was dismissed, upon appeal the recording was allowed, ruling that a traffic stop is NOT a 'private conversation' under RCW 9.73.030 .

    Under RCW 9.73.090 it further exempts dispatch centers, fire departments, police departments, etc from the 'must notify' law, under that there's also an interesting tidbit...

    RCW 9.73.090
    Certain emergency response personnel exempted from RCW 9.73.030 through 9.73.080 — Standards — Court authorizations — Admissibility.


    (1) The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police, fire, emergency medical service, emergency communication center, and poison center personnel in the following instances:

    (a) Recording incoming telephone calls to police and fire stations, licensed emergency medical service providers, emergency communication centers, and poison centers;

    (b) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following:

    (i) The arrested person shall be informed that such recording is being made and the statement so informing him shall be included in the recording;

    (ii) The recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof;

    (iii) At the commencement of the recording the arrested person shall be fully informed of his constitutional rights, and such statements informing him shall be included in the recording;

    (iv) The recordings shall only be used for valid police or court activities;


    (The exemption for in-car cameras and microphones worn on the belt of an officer)

    (c) Sound recordings that correspond to video images recorded by video cameras mounted in law enforcement vehicles. All law enforcement officers wearing a sound recording device that makes recordings corresponding to videos recorded by video cameras mounted in law enforcement vehicles must be in uniform. A sound recording device that makes a recording pursuant to this subsection (1)(c) must be operated simultaneously with the video camera when the operating system has been activated for an event. No sound recording device may be intentionally turned off by the law enforcement officer during the recording of an event. Once the event has been captured, the officer may turn off the audio recording and place the system back into "pre-event" mode.


    (Now, what's even MORE interesting, is it's against the law for the PD to release the tape to the public BEFORE any criminal or civil cases relating to it are CONCLUDED, essentially state law allowing agencies to REFUSE to hand over evidence, WTF?!?)

    No sound or video recording made under this subsection (1)(c) may be duplicated and made available to the public by a law enforcement agency subject to this section until final disposition of any criminal or civil litigation which arises from the event or events which were recorded. Such sound recordings shall not be divulged or used by any law enforcement agency for any commercial purpose.


    (now for the good part, if you're being recorded, the officer is required to inform you that you're being recorded, even on a traffic stop (or so it would seem))

    A law enforcement officer shall inform any person being recorded by sound under this subsection (1)(c) that a sound recording is being made and the statement so informing the person shall be included in the sound recording, except that the law enforcement officer is not required to inform the person being recorded if the person is being recorded under exigent circumstances. A law enforcement officer is not required to inform a person being recorded by video under this subsection (1)(c) that the person is being recorded by video.

    (2) It shall not be unlawful for a law enforcement officer acting in the performance of the officer's official duties to intercept, record, or disclose an oral communication or conversation where the officer is a party to the communication or conversation or one of the parties to the communication or conversation has given prior consent to the interception, recording, or disclosure: PROVIDED, That prior to the interception, transmission, or recording the officer shall obtain written or telephonic authorization from a judge or magistrate, who shall approve the interception, recording, or disclosure of communications or conversations with a nonconsenting party for a reasonable and specified period of time, if there is probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony: PROVIDED HOWEVER, That if such authorization is given by telephone the authorization and officer's statement justifying such authorization must be electronically recorded by the judge or magistrate on a recording device in the custody of the judge or magistrate at the time transmitted and the recording shall be retained in the court records and reduced to writing as soon as possible thereafter.

    Any recording or interception of a communication or conversation incident to a lawfully recorded or intercepted communication or conversation pursuant to this subsection shall be lawful and may be divulged.

    All recordings of communications or conversations made pursuant to this subsection shall be retained for as long as any crime may be charged based on the events or communications or conversations recorded.

    (3) Communications or conversations authorized to be intercepted, recorded, or disclosed by this section shall not be inadmissible under RCW 9.73.050.

    (4) Authorizations issued under subsection (2) of this section shall be effective for not more than seven days, after which period the issuing authority may renew or continue the authorization for additional periods not to exceed seven days.

    (5) If the judge or magistrate determines that there is probable cause to believe that the communication or conversation concerns the unlawful manufacture, delivery, sale, or possession with intent to manufacture, deliver, or sell, controlled substances as defined in chapter 69.50 RCW, or legend drugs as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW, the judge or magistrate may authorize the interception, transmission, recording, or disclosure of communications or conversations under subsection (2) of this section even though the true name of the nonconsenting party, or the particular time and place for the interception, transmission, recording, or disclosure, is not known at the time of the request, if the authorization describes the nonconsenting party and subject matter of the communication or conversation with reasonable certainty under the circumstances. Any such communication or conversation may be intercepted, transmitted, recorded, or disclosed as authorized notwithstanding a change in the time or location of the communication or conversation after the authorization has been obtained or the presence of or participation in the communication or conversation by any additional party not named in the authorization.

    Authorizations issued under this subsection shall be effective for not more than fourteen days, after which period the issuing authority may renew or continue the authorization for an additional period not to exceed fourteen days.

    Interesting, no?

    Basically it appears that the courts ruled that there's no expectation of privacy in public, but still requires officer to announce an AUDIO recording, if I'm reading it right.

    It could also be interpreted that being in public, there's no need for notification, and as such, any recording is OK, and officer or not, there doesn't need to be notification.

    Either way, a good thing, either an officer has to notify us of AUDIO recording, or it further cements that we can record without notification on traffic stops/detentions, or both.

    Edited for typograhical/spelling errors.
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    TechnoWeenie wrote: (Now, what's even MORE interesting, is it's against the law for the PD to release the tape to the public BEFORE any criminal or civil cases relating to it are CONCLUDED, essentially state law allowing agencies to REFUSE to hand over evidence, WTF?!?)



    I read this to mean that any recordings shall not be made available to any party not directly involved with a pending litigation (say... a news outlet). As a defendant (or their attny.), this would NOT exclude one from obtaining the recording prior to resolution of the litigation as it would be deemed evidence under rules of discovery.

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    Regular Member TechnoWeenie's Avatar
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    Phssthpok wrote:
    TechnoWeenie wrote: (Now, what's even MORE interesting, is it's against the law for the PD to release the tape to the public BEFORE any criminal or civil cases relating to it are CONCLUDED, essentially state law allowing agencies to REFUSE to hand over evidence, WTF?!?)



    I read this to mean that any recordings shall not be made available to any party not directly involved with a pending litigation (say... a news outlet). As a defendant (or their attny.), this would NOT exclude one from obtaining the recording prior to resolution of the litigation as it would be deemed evidence under rules of discovery.


    Yeah, I thought about that after I typed it all up. But there's no provision against the defense publicizing the 'tape' to the media once they get a hold on it.
    Evangelical lessons are provided upon request. Anyone wishing to meet Jesus can just kick in my door.

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    Traffic stops and contacts, holding cell video/audio can be recorded with one party consent (the government) so long as the subject is duly notified. Hence, traffic stops can be both video and audio recorded. As an example:

    "I'm Ofc. Smith with XYZ PD. I am advising you that this traffic stop is being audibly and visually recorded. The reason I am stopping you is . . . . "

    Per training the state has put out from several years back. However, due to the vagueness of the laws and interpretation, many agencies are shunning any in-car video as well as audio recording in holding cells/common processing areas. That will change when case law is established or the legislature makes the langauge plain.

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