Voice Recording

Because the exchange was not private, its recording could not violate RCW 9.73.030 which applies to private conversations only. We decline the State's invitation to transform the privacy act into a sword available for use against individuals by public officers acting in their official capacity.

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golddigger14s said:

Looking to buy a video recorder. Amazon has recorders (pen, key fob, eye glass, clip style, and watch) from $10-$120. I don't want a cheap POS, but I don't want to break the bank. Any sugestions?

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amlevin said:

The RCW's prohibit the recording of private communications without the consent of all parties.

What makes it legal for you to record any interaction with a Police Officer is the Washington State Court of Appeals ruling in State v. Flora that recordings made while police officers acting in their official capacity are not a violation of RCW 9.73.030



If officers force you to stop recording, which is a legal act, they could be guilty of the State's Coercion statute which prohibits any actions by an official to prevent one from going about a lawful activity.

http://www.impsec.org/~jhardin/gunstuff/legal/State_v_Flora.html

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Because the exchange was not private, its recording could not violate RCW 9.73.030 which applies to private conversations only. We decline the State's invitation to transform the privacy act into a sword available for use against individuals by public officers acting in their official capacity.

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During his conversation with the officers, Flora and Sherrin entered the house to retrieve the protective order in order to show the officers that the limit was 20 feet rather than 25 feet. They not only brought out the order but a pile of other papers as well. Hidden among them was a small tape recorder. Flora maintains that he wanted to record the conversation because he feared the deputies would assault him and use racial slurs as they had done in the past. He explains that he felt particularly apprehensive because the officers refused to look at the pictures he had taken, pictures which, he thought, would prove he had not been photographing his neighbor's house.

When Flora and Sherrin came out of the house the officers proceeded with the arrest. The stack of papers was placed on the hood of the police car. After Flora was placed in the car, Sherrin picked up the papers and one of the officers saw the tape recorder. Sherrin was arrested and the tape recorder confiscated.


(...)


The conversation at issue fails this threshold inquiry; the arrest was not entitled to be private. Moreover, the police officers in this case could not reasonably have considered their words private. «1»


«1» We note, incidentally, that the police officers testified at trial that they did not consider the conversation private.

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Orphan said:

Tecnoweinie please give us some examples of where you think recording an officer would be lawful and where you think recording an officer would be unlawful.

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..a legislative intent to safeguard the private conversations of citizens from dissemination in any way. The statute reflects a desire to protect individuals from the disclosure of any secret illegally uncovered by law enforcement.[/QUOTE] State v. Fjermestad, 114 Wn.2d at 836.

[4, 5] The State advances no persuasive basis for its contention that the conversation between the officers and Flora should be considered private. We note in particular that in none of the cases it cites as controlling were public officers asserting a privacy interest in statements uttered in the course of performing their official and public duties. Rather, the question in those cases was whether the personal privacy of an individual was improperly invaded. See State v. Cunningham, 23 Wn. App. 826, 843-44, 598 P.2d 756 (1979), rev'd, 93 Wn.2d 823, 613 P.2d 1139 (1980); State v. Grant, 9 Wn. App. 260, 265, 511 P.2d 1013, review denied, 83 Wn.2d 1003 (1973), cert. denied, 419 U.S. 849 (1974); State v. Caliguri, 99 Wn.2d 501, 506, 664 P.2d 466 (1983); State v. Wanrow, 88 Wn.2d at 228-32. The State now urges us to distort the rationale of those cases to support the proposition that police officers possess a personal privacy interest in statements they make as public officers effectuating an arrest.


Our research into other legal sources, in which a literature on the notion of privacy may be said to exist, has produced no cases which support the State's position. In Fourth Amendment analysis, and tort theory, for example, the question whether a matter is private occasions a threshold inquiry into whether the matter at issue ought properly be entitled to protection at all:

It is clear, however, that there must be something in the nature of prying or intrusion, . . . It is clear also that the thing into which there is intrusion or prying must be, and be entitled to be, private.

We note, incidentally, that the police officers testified at trial that they did not consider the conversation private

The conversation at issue fails this threshold inquiry; the arrest was not entitled to be private. Moreover, the police officers in this case could not reasonably have considered their words private.

(Notice how the arrest, the public action is not private,this is the Public officials acting in public duty, period. Then it says Moreover, so on top of the fact they were public officials with not expectation of privacy they also didn't meet any of the other criteria John mentions.)

Because the exchange was not private, its recording could not violate RCW 9.73.030 which applies to private conversations only. We decline the State's invitation to transform the privacy act into a sword available for use against individuals by public officers acting in their official capacity. The trial court erred in denying Flora's motion to dismiss. Flora's conviction is reversed and the case dismissed.

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The Privacy Act,(RCW 9.73), is designed to protect private conversations from governmental intrusion. The conversations here were not private for purposes of that Act where they were brief, involved strangers on a public street, and concerned the terms of routine drug transactions. Some of the conversations actually took place in the presence of third persons. We are unprepared to rule that the Legislature intended to provide privacy protection to street-level illegal narcotics sellers under these market-place circumstances.

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Orphan said:

Tecnoweinie please give us some examples of where you think recording an officer would be lawful and where you think recording an officer would be unlawful.

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TechnoWeenie said:

Easy.

If the conversation can easily be overheard by others, even if others are not present (ie, in public)

Where a reasonable expectation of privacy exists, Ie a person is in an enclosed area not readily audibly observable by the public. A 'private' room, bathroom (depending on circumstances), etc

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joeroket said:

What about an officer that pulls a car over on the side of the highway and is recording? The conversation is not audibly observable by the public.

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dadada said:

But it could be observable and overheard by the public. You are out in public, on a public thoroughfare. No reason to expect privacy on the side of a road. Stop and pee along side the freeway and see if you'll get a urinating in PUBLIC citation.

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sudden valley gunner said:

If you thoroughly read the decisions they draw a distinctive line about public employees and the state and private individuals. I don't think we can record an officer taking a dump or tap his phone when they are in a private conversation with spouse.

But while on duty it is all fair game. They can not try get around this by whispering, as mentioned before. In the Clark case it mentions that if someone doesn't think you will keep it private there is no expectation of privacy. So when an officer is on duty we have no obligation to keep anything he says to us private , this would mean we can also record what he says.

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Lovenox said:

If officers force you to stop recording, which is a legal act, they could be guilty of the State's Coercion statute which prohibits any actions by an official to prevent one from going about a lawful activity.


How is that not a contradictory statement..or law?

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RCW 9A.36.070
Coercion.
(1) A person is guilty of coercion if by use of a threat he compels or induces a person to engage in conduct which the latter has a legal right to abstain from, or to abstain from conduct which he has a legal right to engage in.
(2) "Threat" as used in this section means:
(a) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or
(b) Threats as defined in *RCW 9A.04.110(25) (a), (b), or (c).
(3) Coercion is a gross misdemeanor.

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