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Thread: Audio taping police in PA

  1. #1
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    originally posted 7/22/2007 on PAFOA
    http://www.pafoa.org/forum/concealed...html#post83688


    Appears that there has been some confusion about recording police in PA after the Carlisle arrest a few weeks ago. (charges were dropped, btw)

    As PA is an "all party" consent state people have said that you can not record oral communications with police unless they give you consent.
    After some research it seems clear to me that there are several KEY exceptions to the law that apply to recrding police, in person, under most circumstances.

    1) "Oral communications" per the statute has the "reasonable expectation of privacy" clause built into the statutory definitiion of "oral communication".
    public officials (like police) cunducting stops/interviews/etc, are not expectant of privacy due to the nature of their duties and their position.
    This has been upheld in lower and supreme court rulings.

    2) In many police encounters, police may be taping you (since they are exempt from the statute) BUT the fact that they initiated the taping means by default that they also consent to being recorded.

    Lot's more, most of which can be read at a number of discussion forums, case law cites, etc.
    I just wanted to point out some of the more obvious facts and post some references (below)

    Looks like we're good to go in PA ,under most circumstances, as far as recording any LEO confrontations incident to OC'ing

    Comments? Info?

    --

    REFS:

    Title 18 SS5702: "Definitions"


    Title 18 SS5703: "Interception, disclosure or use of wire, electronic or oral communications"

    Title 18 SS5703: "Exceptions to prohibition of interception and disclosure of communications"

    http://www.rtndf.org/resources/hidde...nsylvania.html
    Pennsylvania's statute makes it illegal to intentionally intercept (through use of a device), attempt to intercept or have someone else intercept any wire, electronic or oral communication. It is also illegal to intentionally use or disclose (or attempt to use or disclose) any information concerning the substance, purport, or meaning of the communication or evidence derived from the contents of a communication if one knows or has reason to know that the information was obtained through interception. Violation is a third-degree felony, punishable by imprisonment for up to seven years and a fine of no more than $15,000. Pennsylvania includes an exception to the interception statute to allow the recording of certain telephone communications with a contractor or designer about excavation or demolition work, provided the parties are informed that the call is being recorded. Consent It is not unlawful to intercept a communication when all parties to the communication have given prior consent. Ordinary answering machine tapes fall within the mutual consent provision of the statute and are not unlawful interceptions. Reasonable expectation of privacy The statute requires a reasonable expectation of privacy for oral communications. To be protected, an oral communication must be uttered by a person exhibiting an expectation that the communication is not subject to interception, under circumstances that justify that expectation. In 1986, a Pennsylvania lower court ruled that an employee who had surreptitiously recorded an unemployment compensation hearing did not violate the statute because a record of the testimony was routinely made for purposes of review by the board and the courts. The court ruled that there was therefore no reasonable expectation of privacy at the hearing. In 1993 a lower court ruled that a Children and Youth Services client did not violate the statute by secretly recording his meeting with a case worker. Because the case worker did not disclose any personal information, he had no expectation of privacy regarding the conversation. And in 1989, the state's Supreme Court ruled that a state trooper had no expectation of privacy while interviewing a suspect, so that the suspect's surreptitious recording of their interview was not illegal. Pennsylvania courts, including the Supreme Court, in recent years have made a distinction between an "expectation of privacy" and an "expectation that a communication will not be intercepted." In 1996 the Superior Court in Philadelphia, citing a 1994 state Supreme Court decision for support, ruled that a person need not have a reasonable expectation of privacy in order to be protected by the statute as long as the person had a reasonable expectation of noninterception for the communication: If one is speaking with the town gossip at a public swimming pool under circumstances insuring that the gossip is not wearing a body wire, one's expectation of noninterception is very high, but the expectation of privacy is very low. Thus, an expectation of privacy does not always carry a concomitant expectation of noninterception, and vice versa. For purposes of violation of the Wiretap Act, while we consider the expectation of privacy as a factor, it cannot be the determining factor in our analysis. (Commonwealth v. McIvor, 670 A.2d 697, 699 (Pa. Super. Ct. 1996). The court ruled that motorists stopped by a uniformed police officer had no expectation of privacy but had "a very real" expectation of noninterception, so that the officer's tape recording of their conversations violated the statute. What is covered It is legal under the statute to intercept or access an electronic communication made through an electronic communication system configured so that the communication is readily accessible to the general public. It is legal to intercept radio communications that are transmitted by any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire department systems, if they are readily accessible to the general public. "Readily accessible" means, among other things, that the signals are not encrypted or scrambled. It is also legal to intercept amateur, citizens band or general mobile radio services communications as well as the radio portion of a cordless telephone communication. A person is guilty of a third-degree felony if he or she possesses a device and knows or has reason to know that its design makes it primarily useful for surreptitious interception of communications. Any device possessed or used in violation of the statute is considered contraband and may be seized and forfeited to the state. The Pennsylvania Supreme Court has ruled that listening to a phone conversation through a telephone extension is an unlawful interception of the communication under the statute. The court ruled in 1989 that an extension telephone qualified as an "electronic, mechanical or other device" as required for interception under the statute. Civil remedies A person whose communication is intercepted, disclosed or used may receive either actual damages or statutory damages calculated at $100 per day of violation or $1,000, whichever is higher. Punitive damages and reasonable attorney's fees and court costs are also available. If it appears that someone is engaged in or about to engage in a violation of the interception statute, the attorney general of Pennsylvania may initiate a civil action for an injunction to prevent the violation. It is a defense to a civil action if the person acted on a good faith reliance on a court order. In a 1991 case, the Pennsylvania Supreme Court ruled that a newspaper that printed excerpts from the transcript of a telephone call intercepted by the police was not liable under the civil provisions of the interception statute. The newspaper's disclosure was not a violation because the newspaper received the transcript from the court (albeit through a mistake by the court clerk) and the newspaper waited until the court had ruled on the admissibility of the intercepted call into evidence. The court ruled this was a "good faith reliance upon a court order" as required by the statute. Sources 18 Pennsylvania Consolidated Statutes Sections 5701 through 5707, 5725, 5728, 1101, 1103 (1997); Boettger v. Loverro, 587 A.2d 712 (Pa. 1991); Gunderman v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 505 A.2d 1112 (Pa. Commw. Ct. 1986); Commonwealth v. Brachbill, 555 A.2d 82 (Pa. 1989); Commonwealth v. DeMarco, 578 A.2d 942 (Pa. Super. Ct. 1990); Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989); Commonwealth v. McIvor, 670 A.2d 697 (Pa. Super. Ct. 1996); Commonwealth v. Louden, 638 A.2d 953 (Pa. 1994); Commonwealth v. Christopher, 620 A.2d 494 (Pa. Super. Ct. 1992).

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    Recent update to above...

    Spoke to a friend of mine that is "wiretap certified" with a state agency.

    He tells me that in circumstances where LEO are secretly taped by citizens, during execution of their official duties, they (LEO) never win in court. One such controlling case law he claims is the most relevant: Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989).

    Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989), where Henlen, a prison guard at a county jail, was suspected of stealing the personal property of an inmate. During an interrogation by state police at Henlen’s work site, Henlen secretly recorded the conversation with the intent of using it as evidence in a
    harassment claim he would later file against the police. Henlen’s argument was similar to that of the Commonwealth in Myers: the conversation was not an “oral communication” protected under the Wiretap Act since the trooper had no reasonable expectation of privacy while he was acting in his official capacity during the interrogation of a suspect.
    He also says this precedent has been clarified with the wiretapping div of the state AG's office.

    Apparently, since LEO's are performing public service, their interaction is not considered private. He also mentioned that any conversation w/LEO is not private because they will potentially create a report containing the info you and he discussed.

    So, according to someone who does this as part of his official duties, his words "you can always tape the police if they are performing work related duty, even secretly, even over the phone"

    FWIW, 3rd hand info, but I know this individual personally and he is quite confident of his info.

    In doing my own research it is my belief that this is correct.
    Commonwealth v. Brion and Commonwealth v. Henlen, commonwealth v.Agnew all seem (to my reading) to uphold that in order for the expectation of "non-interception" to trump a the lack of "expectation of privacy", as the statute makes mention itself: "expectation must be justifiable under the existing circumstances".

    In recording LEO's they have apparently found the circumstances are not warranting expectation of non-interception by virtue of the public servants job.


    ================================================== =====
    Obviously, in the above, we are talking about secret interception. If you disclose you are recording or your recording eq is in plain view your 100% good to go because the visible presence or verbal disclosure completely covers you under the PA statute
    ================================================== =====

    The above is only my OPINION on what I have read and been told. I AM NOT A LAWYER. Take it FWIW! I am confident in MY OPINION that we can tape LEO, without disclosure, during a typical public interaction. Don't whine to me if you get arrested for same


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    Pa. Patriot wrote:
    SNIP Don't whine to me if you get arrested for same
    Especially if you want to whine without havingresearched it yourself.

    Thanks for the research. The folks who visit PA will appreciate it, I'm sure.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    It would be nice if we had a centralized wiki to post this type of stuff on. While threads are fantastic for discourse, they sort of stink when used for research purposes. A wiki would also be of great use for preemption problems, etc... Maybe you could set one up on paopencarry.org?

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    mf wrote:
    It would be nice if we had a centralized wiki to post this type of stuff on. While threads are fantastic for discourse, they sort of stink when used for research purposes. A wiki would also be of great use for preemption problems, etc... Maybe you could set one up on paopencarry.org?
    Good suggestion. paopencarry.org is in the middle of a re-design. I'll look into the wiki idea


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    PA patriot, the reasonable expectation of privacy has nothing at all to do with a person's occupation or work and everything to do with where they are.

    Indoors = generally private. Outdoors = no privacy.

    Check out the open fields doctrine.

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    codename_47 wrote:
    PA patriot, the reasonable expectation of privacy has nothing at all to do with a person's occupation or work and everything to do with where they are.

    Indoors = generally private. Outdoors = no privacy.

    Check out the open fields doctrine.
    Generally, yes. But in PA case law I cited above, the courts have ruled that "expectation of privacy", in those areas outside of the "generally"included, includes "expectation of non-interception", at least when in certain psuedo-public environments.
    Now, the "where appropriate" clause is where the profession of LEO comes in to play. I forget which case, I think it was Henler becuase that was indoors(I'll review later) but it was determined that being an LEO removed that question, so essentially, yes, being an LEO removed the expectation regardless of location as would be followed through the open fields doctrine.



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    While I'm not disputing that it's legal to record LEO encounters, I question the practicality.

    In a state where one could keep the recorder running all the time, it's a great idea.

    However, here in PA, you would need to find a way to initiate the recording when approached by an LEO. Presumably, if the LEO is intending to question/oppress you in regards to OC, you don't want to be making a quick reach into a pocket. Especially if it's a really bad encounter, and you are being drawn down on. Even if you can turn on the recorder in a way that doesn't get you shot, you alert the LEO that you have a recorder and, well, accidents happen. Like your shiny new recorder getting smashed on the ground, or mysteriously vanishing.

    Once again, just my opinion, but thanks for your research into the legality.

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    I don't think it would be very difficult. Carry a recorder everywhere you go and have it running at all times. Worried about someone knowing you are recording? Don't make it obvious.

    I am of similar opinion that bad things can happen "accidently" to recorders that are obvious and conspicuous, so.... you probably don't want to make it obvious that you have a recorder and it is running.

    There are lots of devices disguised as recorders: pens, watches, baseball caps, or just wear a transmitting mic.

    There are devices which can easily hold 10, 20, or 30+ hours worth of voice data, so turn it on when you leave in the morning, and leave it running all day.

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    imperialism2024 wrote:
    While I'm not disputing that it's legal to record LEO encounters, I question the practicality.

    --SNIP

    Once again, just my opinion, but thanks for your research into the legality.
    Of course there will be times when you will not be able to deploy a recorder... More imprtantly though is that there will be times when you can



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    codename_47 wrote:
    I don't think it would be very difficult. Carry a recorder everywhere you go and have it running at all times. Worried about someone knowing you are recording? Don't make it obvious.

    *snip*

    There are devices which can easily hold 10, 20, or 30+ hours worth of voice data, so turn it on when you leave in the morning, and leave it running all day.
    The problem is that in Pennsylvania, the voice recorder cannot legally be left running all day. That's the main issue I have with the practicality of having one to be turned on exclusively during LEO encounters.

    But, as Pa Patriot pointed out, it's better to have a voice recorder and not need it than to not have one in a situation where it would have been useful.

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    imperialism2024 wrote:
    SNIP However, here in PA, you would need to find a way to initiate the recording when approached by an LEO. Presumably, if the LEO is intending to question/oppress you in regards to OC, you don't want to be making a quick reach into a pocket. Especially if it's a really bad encounter, and you are being drawn down on. Even if you can turn on the recorder in a way that doesn't get you shot, you alert the LEO that you have a recorder and, well, accidents happen. Like your shiny new recorder getting smashed on the ground, or mysteriously vanishing.
    I stay on the lookout for LEO's.

    I've had 'em catch me off-guard twice. Meaning they initiated the stop either before I noticed them, or within too little time after I noticed them.

    That won't happen again.

    Now, I'm as or more alert for LEO's than I am for anybody else. Ever since the second "surprise", I've always seen them before they saw me. Which gives me plenty of time to activate the recorder.

    Situational awareness works!

    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    A federal court has ruled police cannot arrest a man for peacefully videotaping a traffic stop.

    http://www.thenewspaper.com/news/05/541.asp

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    Tuesday's decision also ordered the police to pay $35,000 in compensatory damages. The arresting officers -- Patrick Fetterman, John Rigney, and Gregg Riek -- must also each pay Robinson $2,000 in punitive damages.

    That is my favorite part.

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    My favorite part long term would be that all LEOs read and understand the constitution and these sorts of court decisions and all LEOs and LACs realize that we are on the same side. My favorite part short term is that the system worked. The system doesn't mean that violations don't occur, but rather that there is a method to right wrongs. The punishments and improper acts were not significant enough that anyone's life is ruined, but enough to get everyone's attention. I think the judge did an excellent job balancing the issue and the consequences with the $ amounts ordered.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    Ok so do you have a model to recommend?



    How well will a recorder pick up sounds from your pocket?



    Do you keep it in your pants pocket or a shirt pocket?

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    On here, and more so on PAFOA, we have people posting that they either had a run in with Wal-Mart "security" or another citizen that had an issue with OC.



    Does the manager of wal-mart have an expectancy of privacy if he approaches you in the store and asks you to leave? What about Mall Security?



    If not, OCers, should start taping those conversations as well. AND POST THEM.

    There was a youtube video of a guy who called a number and stayed on the phone while being harrassed by police. I can't find the vid, but there is a couple frames from it in the beginning of this vid.

    [url]http://www.youtube.com/watch?v=tlfZ65hlyKk[/url] Porcupine 411?

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    deepdiver wrote:
    My favorite part long term would be that all LEOs read and understand the constitution and these sorts of court decisions and all LEOs and LACs realize that we are on the same side.
    The same side of what? LEOs are never, ever "on the side" of individual law abinding citizens. its is not their role. They are there to protect the interest of government. Most times those interest coincide, but not always.

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