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Thread: Montana - Recording of Conversations

  1. #1
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    I do not believe I have ever gotten a clear answer, and I figured that this would be a good idea to have around.

    Here is the section of code that I am referencing:

    45-8-213. Privacy in communications.(1) Except as provided in69-6-104, a person commits the offense of violating privacy in communications if the person knowingly or purposely:
    (a) with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by electronic communication and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of the person. The use of obscene, lewd, or profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend.
    (b) uses an electronic communication to attempt to extort money or any other thing of value from a person or to disturb by repeated communications the peace, quiet, or right of privacy of a person at the place where the communications are received;
    (c) records or causes to be recorded a conversation by use of a hidden electronic or mechanical device that reproduces a human conversation without the knowledge of all parties to the conversation. This subsection (1)(c) does not apply to:
    (i) elected or appointed public officials or to public employees when the transcription or recording is done in the performance of official duty;
    (ii) persons speaking at public meetings;
    (iii) persons given warning of the transcription or recording, and if one person provides the warning, either party may record; or
    (iv) a health care facility, as defined in50-5-101, or a government agency that deals with health care if the recording is of a health care emergency telephone communication made to the facility or agency.
    (2) Except as provided in69-6-104, a person commits the offense of violating privacy in communications if the person purposely intercepts an electronic communication. This subsection does not apply to elected or appointed public officials or to public employees when the interception is done in the performance of official duty or to persons given warning of the interception.
    (3) (a) A person convicted of the offense of violating privacy in communications shall be fined an amount not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.
    (b) On a second conviction of subsection (1)(a) or (1)(b), a person shall be imprisoned in the county jail for a term not to exceed 1 year or be fined an amount not to exceed $1,000, or both.
    (c) On a third or subsequent conviction of subsection (1)(a) or (1)(b), a person shall be imprisoned in the state prison for a term not to exceed 5 years or be fined an amount not to exceed $10,000, or both.
    (4) "Electronic communication" means any transfer between persons of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.

    History:En. by Sec. 1, Ch. 513, L. 1973; amd. Sec. 33, Ch. 359, L. 1977; R.C.M. 1947, ; amd. Sec. 1, Ch. 356, L. 1979; amd. Sec. 1, Ch. 177, L. 1991; amd. Sec. 3, Ch. 354, L. 1999; amd. Sec. 8, Ch. 77, L. 2001; amd. Sec. 4, Ch. 344, L. 2003; amd. Sec. 1, Ch. 435, L. 2005; amd. Sec. 1, Ch. 214, L. 2007.

    From what I understand, you have to notify anyone (LEO included) if you turn your recorder on to record an encounter. Is this the case in Montana? What if they tell you to turn the recorder off?

    -MontanaCZ


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    I'm also very interested in learning more about this. I've used a pocket recorder in Colorado (where itis legal to surreptitiously record a conversation if you are a party to the conversation) many times over two decades. This is a very powerful legal protection tool.

    I was shocked to learn of the Montana law when I moved here 3 years ago.

    I'll appreciate any comments and expecially first hand experiences with MT LEO.

    Thanks, AUGustin

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    Here is the important part:
    c) records or causes to be recorded a conversation by use of a hidden electronic or mechanical device that reproduces a human conversation without the knowledge of all parties to the conversation. This subsection (1)(c) does not apply to:
    (i) elected or appointed public officials or to public employees when the transcription or recording is done in the performance of official duty;


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    I take that part to mean that they can use recording devices is performance of their duties, not us recording them. Then again, I could be wrong.

    -MCZ

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    brboyer wrote:
    Here is the important part:
    Well, one key word as I see it is "hidden."

    (c) records or causes to be recorded a conversation by use of a hidden electronic or mechanical device that reproduces a human conversation without the knowledge of all parties to the conversation.

    So ifthe recorderisn't hidden, its legal.

    Many hospital employees and physicians routinely wear a recorder like a pendant, and it is often hard to recognize the device as a tape recorder. Is that "hidden" when worn in plain sight? I think not.

    What about digital pen recorders, watches, and cell phones?

    http://thespystore.com/audiosurveillanceequipment.htm

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    This whole topic is a bunch of crap this MCA section 45-8-213. Privacy in communications. for the use of telephonic equipement ie telephone. This section has nothing to do with recording devices in your shirt pocket, hand held cam corders, pens that audio record now, and or even the sunglasses that are available now.

    But you all will still bring this kind of bullcrap topic to our open carry forum.

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    Sorry JB, no malice intended. I just want to know, and I am sure that others might come along that want to know as well. If this is not the correct section of the code, then what is? I have not been able to locate any thing else that looks right, which to me means I am not looking it up correctly. Help here?

    Again, sincere apologies.

    -MontanaCZ

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    Geeze, JBinMontana

    Why the hostility? I certainly didn't mean to anger you or anyone else by discussing what you interpret as off-topic.

    I have often carried a pocket recorder while OCing, especially in questionable areas or "occupied terrority." I feel the topic relates DIRECTLY to open carry. And M.C.A. 45-8-213DOES appear to me to apply to pocket recorders, MP3 players, etc.

    You've offered an opinion that "this MCA section" "has nothing to do with recording devices in your shirt pocket,..." You then failed to explain why,and instead brushed it aside as an inappropriate topic.

    I hope you are correct. But I'd like to hear from others before I come to a verdict.

    Has anyone hadfirst hand experience recordingMT LEO while OCing?

    AUGustin

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    It doesn't matter what Montana Code proscribes outside the context of telephonic communications. The US Constitutionprevails as the law of the land. Specifically, the 1st Amendment allows the audio and video recording of LEOs in public where there is no expectation of privacy. Example;

    http://lawenforcementcorruption.blog...rosecutor.html


    http://www.aclupa.org/pressroom/aclu...ehalfofpit.htm

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    MontanaCZ and others I appoligize, as I posted when I was tired, and should just have posted the information that Vertigo2020posted.

    Here are somethings that this last weekend I saw demonstrated that were recorded with #1) the Pen Video Recorder and #2) The Sunglass Video Recorder

    This link will provide you with a model that is 2GB's less on recordable space for the sunglasses, the ones I saw, were the same looking glasses but were 4GB and you can use a 4GB card to up yourself to 8GB's of recordable space.

    http://ajoka.com/sunglasses_camera.htm

    The nice thing about the pen, as explained to me. Is that you can turn it on, should you be taken by LEO's for processessing and your pen removed from you it will still be recording audio for anything that is talked etc, while enroute to jail.

    The sunglasses will record any place your head turns, and can also take stills etc.

    My dealer here locally is selling the Sunglassesat $159.99 and the Pen is $88.00

    I'm getting the sunglasses for bowhunting with, to record my hunting in the woods. They can also be a good training asset for shooting IDPA, IPSC or any other disaplined shooting sports.


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    Thank you JB. I had always thought it was something Montana specific. Also, thanks for the tips on the items.

    -MCZ

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    My 2nd Amendment weapon of choice is the Springfield XD9

    My 1st Amendment weapon of choice is the Ipod Touch with a Chill Pill and Griffin iTalk. This device will continue to record when it appears to be turned off, it can't be taken apart,nor the battery removed. There is also an app available that will transcribe the voice recording to text. The iPhone will also perform the same function, however, AT&T has no service in Montana as of yet. This combo saved Steve Bierfeldt in his encounter with TSA. Not to mention the other uses for this gaget.

    http://www.youtube.com/watch?v=UcSSwW4K4AU

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    I make it a point to tell any LEO that I come in contact with in the exercise of any 'official duty' that I am recording the conversation for my safety. I've been asked to turn it off on occasion but have told them the only way I'll turn it off is if they turn their audio/video recording devices off as well. They've stated they cannot due to officer safety, therefore mine remains on too!
    It's kind-of a CYA thing if you ask me! I do it a lot because there are several LEO's that I don't get along with here in the valley. They don't like me and I don't like them. I cover my butt because they don't.

    As for tying this into the OC/CC subject so I don't upset JB ( ) I carry almost all the time and don't apologize for it. Just like the officer asking me to turn off the recording device, I have been asked to turn my firearm over to them during the course of a traffic stop once or twice. They won't give their weapon to me, so I don't give mine to them. Now many of you can see how I've made a few enemies in my days since I was an LEO. I'm stubborn, arrogant, I know the laws and they don't like any of those facts!!
    Word of advice: Know the laws, rules and regulations for your area! Once you choose to exercise a law or a right, don't back down. Stand your ground and be firm but polite (not rude like me!). If you don't know about something, the best way to learn is to consult an attorney or the Attorney General's office of your state. Whether they like it or not, they have to tell you the law as it reads in the books. I have talked on several occasions with the Montana Attorney General's office and have had nothing but a positive outcome.

    Good luck in your endeavors, Terry would be proud!!
    In a crisis you don't rise to the occasion, but rather default to your level of training.

    Forgiveness is between them and God. It's my job to arrange the meeting.
    -John W. Creasy (Man on Fire)

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    Actually MCA 46-5-401 (2)(b), allows the LEO to take your weapon during the course of a Terry Stop. Once the detention is over he/she must return the weapon to you unless you are arrested or otherwise prohibited from carrying the weapon.

    However, I believe that the portion of 46-5-401 (2)(a) that reads "...present address and an explanation of the person's actions" is unconstitutional under the 5th Amendment. The portion requiring the disclosure of your name has already been decided in Hiibel.In re: Hiibel the SC only considered the privacy intrusion and silence protections of name disclosure. They stopped short of addressing further questioning by a LEO. Under 46-5-401 (2)(a) Montana Code compels you toanswers question posed to you by LE underthreat of arrest. In practice thisstatute could actually force you to answer questions until the LEO hasenough information to arrestyou forother charges. Clearly, the 5th Amendment protects one from self incrimination, which directly conflicts with the language contained in this statute. Personally, I'llrefuse to answer any question posed to me a LEO other than my name. If I'm arrested then I'll take it all the way to the SC if necessary.


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    Again, I know I'm stubborn, but unless someone can tell my why I need to surrender my firearm they more than likely won't get it. I have a hard time bowing to the influence of something like that. I know, I'm stubborn as I said. Many people will think that my stubborn-ness and my ego will get me thrown in jail. That's my worry and not yours.
    In a crisis you don't rise to the occasion, but rather default to your level of training.

    Forgiveness is between them and God. It's my job to arrange the meeting.
    -John W. Creasy (Man on Fire)

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    40s-and-wfan wrote:
    Again, I know I'm stubborn, but unless someone can tell my why I need to surrender my firearm they more than likely won't get it. I have a hard time bowing to the influence of something like that. I know, I'm stubborn as I said. Many people will think that my stubborn-ness and my ego will get me thrown in jail. That's my worry and not yours.
    I didn't mean to imply I was worried about your resistance or refusal to surrender your firearm to law enforcement during a hypothetical. That is clearly your decision.My comments were merely directedto the applicable law in regards to Montana's stop and indentify statute. However, I supect a LEO confronted with your stubbornness may have a little more adverse response to your refusal to surrender your weapon.

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    Oh, I agree. I would assume it will have an adverse reaction and effect. I don't know what they will do. I'm sure the effect will vary depending on the officer.
    In a crisis you don't rise to the occasion, but rather default to your level of training.

    Forgiveness is between them and God. It's my job to arrange the meeting.
    -John W. Creasy (Man on Fire)

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    Vertigo2020 wrote:
    It doesn't matter what Montana Code proscribes outside the context of telephonic communications. The US Constitutionprevails as the law of the land. Specifically, the 1st Amendment allows the audio and video recording of LEOs in public where there is no expectation of privacy. Example;

    http://lawenforcementcorruption.blog...rosecutor.html


    http://www.aclupa.org/pressroom/aclu...ehalfofpit.htm
    That the ACLU sued someone is helpful, but not filling.

    Can you cite some cases for us? The last I heard was a federal circuit case in western PA that decided against some state troopers for confiscating or arresting someone for DVRing the police truck inspection road-block. But, that would only cover that circuit.
    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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    Citizen wrote:
    Vertigo2020 wrote:
    It doesn't matter what Montana Code proscribes outside the context of telephonic communications. The US Constitutionprevails as the law of the land. Specifically, the 1st Amendment allows the audio and video recording of LEOs in public where there is no expectation of privacy. Example;

    http://lawenforcementcorruption.blog...rosecutor.html


    http://www.aclupa.org/pressroom/aclu...ehalfofpit.htm
    That the ACLU sued someone is helpful, but not filling.

    Can you cite some cases for us? The last I heard was a federal circuit case in western PA that decided against some state troopers for confiscating or arresting someone for DVRing the police truck inspection road-block. But, that would only cover that circuit.

    The case you referred to is Robinson v Fetterman, et al.

    Link to decision: http://www.thenewspaper.com/rlc/docs/05-videotape.pdf

    Also: http://www.aele.org/law/2009all05/2009-05MLJ201.pdf

    Please feel free to reject my comments and shepardize the various precedents for yourself.


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    Vertigo2020 wrote:
    Under 46-5-401 (2)(a) Montana Code compels you toanswers question posed to you by LE underthreat of arrest. In practice thisstatute could actually force you to answer questions until the LEO hasenough information to arrestyou forother charges. Clearly, the 5th Amendment protects one from self incrimination, which directly conflicts with the language contained in this statute. Personally, I'llrefuse to answer any question posed to me a LEO other than my name.
    Vertigo2020,

    Montana's Investigative Stop and Frisk law isn't clear to me. I don't see where it criminalizes refusing to answer. Where is the threat of arrest? They need probable cause to arrest you.

    This lawallows a cop to stop youif they haveRAS - what Montana calls "a particularized suspicion." It mandates that the cop inform you of the RAS "as promptly as possible." And it authorizes the cop to ask you your "name and present address and an explanation of (your) actions."

    If stopped, you should ALWAYS request a statement of resonable suspicion, and ALWAYS record it.

    This can be done various ways. For example, I would simply dial my voice mail number on my cell phone, hand my phone to the cop, and ask him to make a statement of reasonable suspicion "FOR THE LEGAL RECORD."

    I recommend doing the cell phone thing even if using another pocket recorder.

    If they refuse to speak into your phone, inform that since they haven't articulated any reasonable suspicion fora detention, you must be free to go. ABSOLUTELY REFUSE TO ANSWER ANY QUESTIONS, including your name, UNTIL YOU HAVE A RECORDED STATEMENT OF RAS.

    You may have to point out that M.C.A. 46-5-401 requires the cop to inform you of their "particularized suspicion" "as promptly as possible."

    I personally would give the cop my name (shortened first name and last name, but no middle name to prevent a background check) and a brief explanation.

    BE CERTAIN TO RECORD YOUR OWN STATEMENTS AS WELL- again simply talk into your own cell phone when speaking to the cop. This technique has a distinct advantage over a pocket recorder as the recording cannot be confiscated.

    AUGustin


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    Augustin wrote:
    Vertigo2020 wrote:
    Under 46-5-401 (2)(a) Montana Code compels you toanswers question posed to you by LE underthreat of arrest. In practice thisstatute could actually force you to answer questions until the LEO hasenough information to arrestyou forother charges. Clearly, the 5th Amendment protects one from self incrimination, which directly conflicts with the language contained in this statute. Personally, I'llrefuse to answer any question posed to me a LEO other than my name.
    Vertigo2020,

    Montana's Investigative Stop and Frisk law isn't clear to me. I don't see where it criminalizes refusing to answer. Where is the threat of arrest? They need probable cause to arrest you.

    This lawallows a cop to stop youif they haveRAS - what Montana calls "a particularized suspicion." It mandates that the cop inform you of the RAS "as promptly as possible." And it authorizes the cop to ask you your "name and present address and an explanation of (your) actions."

    If stopped, you should ALWAYS request a statement of resonable suspicion, and ALWAYS record it.

    This can be done various ways. For example, I would simply dial my voice mail number on my cell phone, hand my phone to the cop, and ask him to make a statement of reasonable suspicion "FOR THE LEGAL RECORD."

    I recommend doing the cell phone thing even if using another pocket recorder.

    If they refuse to speak into your phone, inform that since they haven't articulated any reasonable suspicion fora detention, you must be free to go. ABSOLUTELY REFUSE TO ANSWER ANY QUESTIONS, including your name, UNTIL YOU HAVE A RECORDED STATEMENT OF RAS.

    You may have to point out that M.C.A. 46-5-401 requires the cop to inform you of their "particularized suspicion" "as promptly as possible."

    I personally would give the cop my name (shortened first name and last name, but no middle name to prevent a background check) and a brief explanation.

    BE CERTAIN TO RECORD YOUR OWN STATEMENTS AS WELL- again simply talk into your own cell phone when speaking to the cop. This technique has a distinct advantage over a pocket recorder as the recording cannot be confiscated.

    AUGustin



    Refusing to comply with the LEO's requests for name, address, or explanation can get you arrested under:

    45-7-302. Obstructing peace officer or other public servant. (1) A person commits the offense of obstructing a peace officer or public servant if the person knowingly obstructs, impairs, or hinders the enforcement of the criminal law, the preservation of the peace, or the performance of a governmental function, including service of process.
    (2) It is no defense to a prosecution under this section that the peace officer was acting in an illegal manner, provided that the peace officer was acting under the peace officer's official authority.
    (3) A person convicted of the offense of obstructing a peace officer or other public servant, including a person serving process, shall be fined not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.

    Pay particular attention to (2). Even if said LEO acted improperly and without "particularized suspicion" you can still beprosecutedunder the statute. This is a free pass to violate your Constitutional Rights.

    BTW, "probable cause" and "reasonable suspicion" are two different standards.

    I suggest you readthe Supreme Court rulingHiibelre: name disclosure to LEO, and observe how the high court just threw out your 5th Amendment Rights. The following link will brief you on where we're headed.

    http://www.fed-soc.org/doclib/20080313_CrimKlein.pdf


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    Quote Originally Posted by Vertigo2020 View Post

    Refusing to comply with the LEO's requests for name, address, or explanation can get you arrested under:

    45-7-302. Obstructing peace officer or other public servant. (1) A person commits the offense of obstructing a peace officer or public servant if the person knowingly obstructs, impairs, or hinders the enforcement of the criminal law, the preservation of the peace, or the performance of a governmental function, including service of process.
    (2) It is no defense to a prosecution under this section that the peace officer was acting in an illegal manner, provided that the peace officer was acting under the peace officer's official authority.
    (3) A person convicted of the offense of obstructing a peace officer or other public servant, including a person serving process, shall be fined not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.

    Pay particular attention to (2). Even if said LEO acted improperly and without "particularized suspicion" you can still beprosecutedunder the statute. This is a free pass to violate your Constitutional Rights.

    BTW, "probable cause" and "reasonable suspicion" are two different standards.

    I suggest you readthe Supreme Court rulingHiibelre: name disclosure to LEO, and observe how the high court just threw out your 5th Amendment Rights. The following link will brief you on where we're headed.

    http://www.fed-soc.org/doclib/20080313_CrimKlein.pdf
    Not true.

    To be guilty of Obstruction, one must perform a physical act. A detainee (if not stopped while driving) may evoke their 5th Amendment right to remain silent. Which is why MCA 46-5-401 is worded as it is - the officer may only “REQUEST the person's name and present address and an explanation of the person's actions.”

    However, the U.S. Supreme Court recently ruled that you are required to clearly and explicitly state that you “invoke your right to remain silent”, your “5th Amendment guarantee against self-incrimination,” or words to that effect.

    By your reasoning the cops could interrogate you for as long as they please and the minute you refuse to answer a single question, BANG, you are guilty of obstruction. Montana isn't Nazi Germany.

    And BTY, I'm very familiar with Hiibel v. the 6th Judicial District of Nevada. If the Montana Stop and ID law required you to produce your name or an ID card, then Hiibel would affirm it.

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