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  1. #1
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    Question Is It Legal To Record Audio or Video of California Traffic Stops

    I came across Maxima_Lover's story on Digg, and it prompted me to read up on my local rights. I've spent the past couple of hours searching for information specifically related to the legality of recording audio or video during traffic stops in California, but haven't found it. I even tried wading through the California Penal Code. I noticed a couple of other questions on this forum, but they weren't specific to California.

    As I understand, California has two-party consent laws for audio/video recording of conversations. This seems clear enough for telephone and private conversations, but how does this apply to those in public? I'm an amateur photographer, so I know that it's legal to take pictures of people in public without consent because there isn't a reasonable expectation of privacy. Do the same laws apply here?

    Does a police officer have a reasonable expectation of privacy during a traffic stop? Do I need to tell him/her that he/she is being recorded? If so, it seems like a needlessly risky way to escalate the situation. Are there exemptions for precisely that reason?

    Thanks in advance for any advice you might have!

  2. #2
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    Default Re: Is it legal to record audio/video of traffic stops in California?

    Brad, maybe Carl will chime in later, he is a CA police officer.

    All state Constitution's have personal liberty clauses/AM's such as the US Constitution provides, so we have 2 sources to consider.

    Freedom of speech/expression per the 1st is not absolute, however, it seems unlikely the government can restrict the tape recording of a traffic stop, it would appear to be a proper time place and manner afforded the detainee the gov. can not abridge.

    The media certainly has a right to do so, so how could a detainee not be afforded the same protection as a constitutional right?

  3. #3
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    Default Re: Is It Legal To Record Audio or Video of California Traffic Stops

    Quote Quoting brad77
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    I As I understand, California has two-party consent laws for audio/video recording of conversations. This seems clear enough for telephone and private conversations, but how does this apply to those in public? I'm an amateur photographer, so I know that it's legal to take pictures of people in public without consent because there isn't a reasonable expectation of privacy. Do the same laws apply here?
    Penal Code sections 630 and 632 cover most the privacy laws regarding the recording of "confidential communications". Typically, CA is a two party state for audio recording ... unless done by the police (we are exempted by statute from the prohibition against recording any conversation we overhear). However, since the key is expectation of privacy, it seems to be unsettled law whether a conversation between an officer and a citizen would be a "confidential communication" as defined in PC 632. Since WE can record the conversation without your knowledge, it is often seen as reasonable to assume that YOU can record it as well.

    But, it's not settled law.

    Does a police officer have a reasonable expectation of privacy during a traffic stop? Do I need to tell him/her that he/she is being recorded? If so, it seems like a needlessly risky way to escalate the situation. Are there exemptions for precisely that reason?
    I am not aware of any case law on point for this matter, so it could go either way. If you were to introduce - or TRY to introduce - an audio recording or a stop in court, then you MIGHT find it suppressed, and you MIGHT find yourself charged criminally. I suspect, however, that most courts are not going to hammer you for making an audio recording.

    If this is something you wish to do, I would suggest you consult a local attorney so you might know how the courts in YOUR area feel about the whole thing.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"


    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns

  4. #4

    Default Re: Is It Legal To Record Audio or Video of California Traffic Stops

    My understanding is that there was a case where several CHP's were harassing a particular company because the owner filed a complaint against one of them. A PI attached cameras and audio to the firm's trucks and recorded several incidents. The CHP's were fired and the owner collected a very nice settlement from the state.

  5. #5
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    Default Re: Is It Legal To Record Audio or Video of California Traffic Stops

    Quote Quoting lwpat
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    My understanding is that there was a case where several CHP's were harassing a particular company because the owner filed a complaint against one of them. A PI attached cameras and audio to the firm's trucks and recorded several incidents. The CHP's were fired and the owner collected a very nice settlement from the state.
    I've never heard of the case and cannot find it anywhere, so it may not be controllign case law ... it may have been very specific to that incident. Plus, civil law is different than criminal law, and different counties might apply it in different ways.

    I would be interested in knowing about the case, though, as it likely would have addressed the Penal Code issue.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"


    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns

  6. #6
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    Default Re: Is It Legal To Record Audio or Video of California Traffic Stops

    First off, I am not a lawyer, and I don't claim to have any expertise here. Secondly, thanks for the information! I apologize in advance for any gross misunderstandings of the law or the workings of the courts.

    Quote Quoting cdwjava
    View Post
    If you were to introduce - or TRY to introduce - an audio recording or a stop in court, then you MIGHT find it suppressed, and you MIGHT find yourself charged criminally. I suspect, however, that most courts are not going to hammer you for making an audio recording.
    That's what I'm afraid of. If the recording were suppressed (or worse), the case would likely fall apart. As I understand, in a case of your word against theirs, the judge is likely to rule against you.

    In my stumblings on the 'net I found a couple cases, one in Maryland and another in Massachusetts. In the first, an amateur movie-maker got nailed for breaking a wiretapping law when he videotaped a cop during a traffic stop, but was eventually cleared by the DA (links: 1, 2, 3 and 4). The second involved an incident where a driver named Michael J. Hyde used a surreptitious recording he made of a traffic stop to substantiate a formal complaint against the police department a few days after he was stopped (some analysis can be found here). That recording was then used as grounds for a criminal case against him (Commonwealth vs. Michael J. Hyde). Noteworthy are these statements:

    The defendant was not prosecuted for making the recording; he was prosecuted for doing so secretly. [...] The problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.
    I do not know whether or not he was sentenced.

    The analysis I linked to above (again here) indicates that "California law is limited to situations that involve 'confidential communication[s],' and excludes communications 'made in a public gathering . . . or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded'", but fails to take that further as to qualify whether or not a traffic stop (or any other encounter with law enforcement) falls into this category.

    I also found this in the California Penal Code:

    633.5. Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m. Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders any evidence so obtained inadmissible in a prosecution for extortion, kidnapping, bribery, any felony involving violence against the person, a violation of Section 653m, or any crime in connection therewith.
    Could an argument be made that the communication is being recorded to gather evidence of a crime being commited? Would 633.5 apply here, or would this only be admissible if a felony was committed against the party doing the recording? If so, would it be reasonable to assume that while you may get slammed if you brought this recording as evidence to a PD complaint or civil suit where a felony was not committed, you may be safer using it as evidence in a felony criminal case?

  7. #7
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    Default Re: Is It Legal To Record Audio or Video of California Traffic Stops

    Quote Quoting brad77
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    The analysis I linked to above (again here) indicates that "California law is limited to situations that involve 'confidential communication[s],' and excludes communications 'made in a public gathering . . . or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded'", but fails to take that further as to qualify whether or not a traffic stop (or any other encounter with law enforcement) falls into this category.
    That's where the arguments would come in ... is a traffic stop subject to the provisions of PC 630 et seq.?

    Could an argument be made that the communication is being recorded to gather evidence of a crime being commited?
    It would be weak, I believe. How did you know or suspect when you made the recording that the officer was going to extort or threaten you? You would be making the recording purely as a fishing expedition and it would likely be found in violation of the law IF the local courts interpret a traffic stop to NOT be subject to secret recording.

    It just does not seem to be well-settled law. However, if I were to guess, most courts would likely admit such audio tape at least for the limited purpose of impeachment of the officer should he say something that was contradicted by the audio.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"


    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns

  8. #8
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    Default Re: Is It Legal To Record Audio or Video of California Traffic Stops

    As a private citizen, IMHO - generally speaking to say LE can record audio/video where a private citizen can not is an indicator of a police-state, not a free society.

    It seems to me, if a citizen has a audio recording - they would want to create a transcript and summarize it in a written declaration. If your account of events are challenged, then you would be in a position to negotiate revelation of a transcript. A transcript would suggest the existance of a recording. If your rights were violated by LE I'd imagine that this would have a effect on your status quite quickly . Obviously you'd want an attorney to negotiate/leverage this for you.

    In my experience - officers, investigators, attorneys and judges want to do their jobs as effeciently as possible and sometimes that means the use of somewhat deceptive or ambiguous tactics. Suspects are not exempt from this behavour obvioulsy. This is why most of the advise I see in these forums include the word 'good' when you are told to 'get a good attorney'.

  9. #9
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    Default Re: Is It Legal To Record Audio or Video of California Traffic Stops

    When a Police Officer (Public Servant) pulls someone over or questions someone in Public it is perfectly lawful to record anything between yourself and the servant. Police would not have an expectation of privacy during their official duty as public servants being also in "Public".

  10. #10
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    Default Re: Is It Legal To Record Audio or Video of California Traffic Stops

    Quote Quoting Madmanmike1972
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    When a Police Officer (Public Servant) pulls someone over or questions someone in Public it is perfectly lawful to record anything between yourself and the servant. Police would not have an expectation of privacy during their official duty as public servants being also in "Public".
    This is entirely dependent upon state law and court decisions for the states and federal judicial circuits, it is not a given that such a recording is lawful. It likely IS lawful in most situations, but this is no a certainty.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"


    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns

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