Newsletter Reboot: To Record or Not to Record, That is the Question

This newsletter originally appeared on the NMA website in November 2018.

An interesting phenomenon is being reported by some members. Police officers approaching their vehicles during routine traffic stops are asking an opening question different than the traditional, “Do you know why I stopped you?” Rather, in this day of rising popularity of dashcams and the ubiquitous presence of smartphones, the opening query is just as likely to be, “Are you recording this stop?”

That raises some dicey legal questions, among them “Is it legal for a motorist to record police actions during a stop,” and “Do I have to turn off my recording device if ordered to do so by the police?”

Twelve states ─ California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington ─ require the consent of all parties before recording can be done legally (short of a court order, that is). The other 38 states only require the consent of one party. The courts in most states, even most of the twelve consent states, have ruled that on-duty police officers don’t have an expectation of privacy when conducting business in public view. That covers a majority of traffic stops. Note the qualifier “most.” State laws pertaining to recording others without their knowledge evolve, subject to new rulings and precedents at a time when surveillance technologies continue to advance rapidly.

As an illustration of how seriously police and prosecutors take the consent rule, consider the case a few years ago of motorcyclist Anthony Graber who recorded a traffic stop with his helmet cam and then posted the video on the Internet. Graber was charged with violating Maryland’s wiretapping law that disallows the audio recording of another party without their consent, and faced a penalty of up to 16 years in prison. While a circuit court judge ultimately dismissed the charges against Graber as prosecutorial overreach, the harassment that Graber and his parents were subjected to by the authorities was brutal. Win the war but get decimated during the battles.

Back to the question of how to respond to an officer’s direct question of whether you are recording a traffic stop interaction. If you aren’t, no need to antagonize the cop. A simple “no” will help prevent unnecessary escalation.

But what if you are using a recording device?

You don’t want to lie to the police. Little good can come from that. If you acknowledge a recording device, know that using one should be within your rights in most states. Try however arguing that point roadside with the cop and risk being slapped with a charge of contempt or of interfering with an officer’s duties. Best case then is dealing with the hassles of appearing in court before a judge. Worst case is having your vehicle impounded and your dashcam or phone confiscated while facing serious penalties. Strike that, worst case is a Graber-type nightmare.

You can, of course, acknowledge the device and turn it off. Another option is to take the constitutional route: Exercise your right to remain silent. You are obligated to provide the officer with your driver’s license, vehicle registration, and in many states, proof of insurance. Hand that information at the officer’s request and, in response to other questions, simply respond with, “I have provided the necessary information. Am I free to go now?” The cop may get a bit irritated but the consequences are nowhere near as severe as facing a contempt or wiretapping charge.

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