Tuesday, September 11, 2007

Watching the Detectives

"Yeah, you wanna try me? You wanna try me tonight? You think you've had a bad night? I will ruin your ****ing night."

[...]

"Do you want to go to jail for some ****ing reason I come up with?"

[...]

"Try and talk back -- Talk back to me again. I bet I could say you resisted arrest or something. You want to come up with something? I come up with nine things. Do you wanna try something?"
Imagine hearing that the next time you're pulled over. The above quotes came from Sergeant James Kuehnlein of the St. George Police Department during a recent south St. Louis traffic stop. Listen to the video embedded above for more.

St. George, a small town in south St. Louis County, Missouri, is apparently well known for its numerous speed traps. According to St. Louis NBC affiliate KSDK, St. George's revenue from traffic tickets accounts for over one quarter of their annual budget.

The encounter began at around 2:00 AM when Brett Darrow, apparently no stranger to difficult traffic stops, was approached by the officer shortly after pulling into a commuter parking lot. He was in the lot, which was in an unincorporated part of south St. Louis County, allegedly to wait for a friend to get off work. According to Brett:
Here I was coming down the road and went to turn into the commuter parking lot. The cop was parked illeaglly [sic] almost blocking the road like always and he had to move which must have pissed him off. I pulled into the lot and he turned around, pulled in behind me and lit me up.
Although his parking job may have kicked things off, it was his refusal to answer the officer's questions that caused Sgt. Kuehnlein's temper to flare. More from the transcript:
"Oh, while you were coming towards me you were swerving back and forth within the roadway. Okay? I might give you a ticket for that. You want me to come up with some more? When you turned in, you failed to use your turn signal, your right turn signal. You wanna try me some more? Huh? Come on smart ass. Gimmie an attitude a little bit more."

[...]

"You're about ready to get it."
With the video, it's clear that the officer was in the wrong. Without it, there's little chance that Mr. Darrow's allegations would stand up to scrutiny. In fact, after discovering his recording equipment, Sgt. Kuehnlein's demeanor became markedly more conciliatory. Unfortunately for the officer, it was too little, and too late. He has since been placed on unpaid leave pending the results of an official investigation (source).

The reason why Mr. Darrow was within his rights to record the communication was because Missouri is considered a one-party consent state, meaning that the consent of only one party is required when recording a telephone call or other private conversation, which is consistent with Federal law (source). In this situation, consent of the party conducting the recording is, of course, implied.

Your mileage may vary, however, because laws in your state may differ from the Federal norm. In light of this, I attempted to determine whether or not this is legal where I live. California, along with eleven other states, has two-party consent laws. This is somewhat of a misnomer, as the term actually means that consent of all parties is required for a recording to be legally made (there can be more than two). Consent can be implicitly given, though, and law enforcement is generally exempted.

In fact, there are two relatively well-known cases involving the recording of traffic stops in Maryland and Massachusetts, both two-party consent states. In the first, felony wiretapping charges were filed against an 18-year-old who videotaped a traffic stop. The charges, which carried a sentence of up to 7 years in prison were ultimately dropped by the DA. 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.
So what does this mean for the average Californian?

Let's consider another part of California law that may apply here. As an amateur photographer, I know that it is legal for me to take pictures of people in public without their consent because they don't have reasonable expectation of privacy. It would likely get me some dirty looks (or worse) from my subjects, but I'm not breaking the law.

Based on this information, the million dollar question may be this: Does a police officer have a reasonable expectation of privacy during a traffic stop? If so, is the driver required to inform the officer that the conversation is being recorded?

I haven't spoken with a lawyer (and I am clearly not one), but it appears that this is unsettled law here in California. I was surprised to discover this. If a driver is required to inform the officer of his or her intentions to record a stop (or other encounter), it seems that he or she is forced into a needlessly risky way to escalate an already sensitive situation.

What can be said of the state of affairs when a private citizen is barred from lawfully recording an encounter with law enforcement when the reverse is not true? How would Brett Darrow's confrontation have played out in California? Based on my research, I believe that it's unlikely that such a recording would be deemed illegal, but without the support of specific language in the law, it's hard to say.

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