Do police officers have a reasonable expectation of privacy while on duty?

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1 Do police officers have a reasonable expectation of privacy while on duty? Gena Mangiaratti Ithaca College Abstract This research was conducted to answer the question of whether law enforcement officials have a reasonable expectation of privacy while on duty in regards to wiretap and eavesdropping laws. The answer was determined by examining court cases in the states of Massachusetts, Pennsylvania, and Maryland that centered on the wiretap laws, as well as court cases in the state of Illinois centered on the eavesdropping statute. It was concluded that law enforcement officials do not have a reasonable expectation of privacy while at work, but the wiretapping or eavesdropping laws in some of the states have yet to be updated in reflection of this. Introduction In the states with some of the strictest laws regarding the recording of conversations, statutes against acts of eavesdropping and wiretapping have been interpreted to effect a restriction on recording the actions or speech of law enforcement officials, specifically with the use of audio recording. The criminal law codes of Massachusetts, Maryland, and Pennsylvania all contain wiretapping statutes that prohibit the interception of oral communications without the consent of all parties involved (General Laws of Massachusetts, Ch. 272, 99; Maryland Courts and Judicial Proceedings ; 18 Pa. Cons. Stat. 5701). Federal law defines interception as the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device, and only requires that one party to a communication give consent for the recording to be lawful (U.S. Code Title 18, Part 1, Ch ). It is the states decisions to require all-party consent. The Massachusetts wiretap law adds the element of secrecy, defining interception as to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication, given that the recording is not being done by a law enforcement officer as a part of an investigation (General Laws of Massachusetts, Ch. 272, 99). Illinois has been regarded for its particularly strict laws against the audio recording of a conversation without consent from all parties, as described under the eavesdropping statute in the state criminal code. The statute particularly states that when one or more parties is law enforcement, an eavesdropping offense equals a class 1 felony. (720 Illinois Compiled Statutes 5/14 4) Though most of the cases mentioned in this report concluded in the favor of the person accused of wiretapping or eavesdropping, the reasoning behind these conclusions varied with each state, reflecting different interpretations of state laws and the rights of the citizens involved. Ultimately, all of the cases bring up the question as to whether police officers have an expectation of privacy while on duty. 1

2 From the cases studied and the statutes associated with them, the answer seems to be no, that police officers do not have a legitimate expectation of privacy while on duty. This stems from the nature of law enforcement officers jobs, in which they are frequently put in the public eye while carrying out their duties, or, as established in Commonwealth v. Henlen (1989) and since re-visited in recent cases, may not be performing their duties in the public eye, but other aspects of the situation do not create an expectation for privacy. Some cases, such as Glik v. Cunniffe (2011) in Massachusetts and Maryland v. Graber (2010) in Maryland, even establish it to be a First Amendment right that citizens are allowed to make recordings in a public space. Pennsylvania, as of a short time following the conclusion of Matheny v. Allegheny County, et al, 2010, remains undecided on whether it is a First Amendment right, but has confirmed that recording in public spaces does not violate the wire tapping statute (ACLU-PA website). There does seem to be slight dissonance on the question of an expectation of privacy in the state of Illinois, where the eavesdropping law specifically names recording law enforcement officers to be a felony, and the circumstance of them being public officials has not until very recently provided much of a defense. For example, in the recent case of Tiawanda Moore, it seems that while the case was concluded in favor of Moore, who had the allegedly eavesdropped on law enforcement officials, the reasons behind the outcome did not reflect a lack of privacy expectations for the law enforcement, but rather an exception to these privacy expectations. However, the recent conclusion of the Illinois eavesdropping case Allison v. Illinois (2011) was concluded in favor of the alleged eavesdropper on the grounds of First Amendment violation, showing a partial shift in the state s perception of the right to record public officials. Overall, it seems that police officers do not have an expectation of privacy while at work, but the wiretapping or eavesdropping laws in some of the states have yet to be updated in reflection of this. Is it a First Amendment Right? The right to record the police in a public space where there is no expectation of privacy was earliest established in State v. Flora (1992), which took place in the state of Washington. In Washington, the criminal code states that it is unlawful for any individual to intercept, or record any Private conversation (Revised Code of Washington ß ). James Flora s daughters had accused a neighbor of using a racial slur and threw mud on her car as retaliation. The neighbor had James Flora and his daughters arrested and obtained a restraining order. When the neighbor later saw James Flora in the street photographing his car, she believed he was violating this restraining order and called the police. The same officers who had previously arrested Flora and his daughters arrived and found a tape recorder with his arrest recorded on it. (State v. Flora, 1992) Flora was charged with recording his arrest, which the State believed to be private, but the court reversed the judgment and dismissed the case, rejecting the State s view that public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of passersby enjoyed a privacy interest that they were entitled to assert under the statute. The court held that the officers in the case could not reasonably have considered their words private, and therefore ß was not violated. (State v. Flora, 1992) The outcome of State v. Flora was referred to in the decision of Maryland v. Graber (2010) in Maryland. Anthony Graber, a 25 year-old staff sergeant in the Maryland area National Guard, had been riding his motorcycle on northbound Interstate 95, recording the ride with a 2

3 helmet-mounted camera when he was stopped by two state Troopers on the exit ramp to Maryland Route 543 for alleged motor vehicle violations (Cato Institute, 2010; Maryland v. Graber, 2010). Both Interstate 95 and Maryland Route 543 are public highways of the State of Maryland. Graber video and audio recorded his interactions with the two troopers without their knowledge, and later posted the video to YouTube. Graber was arrested and charged with counts related to his reckless driving, as well as counts of unlawful interception of an oral communication, and unlawful disclosure of an intercepted oral communication, both in violation of restrictions under Maryland Courts and Judicial Proceedings (Maryland v. Graber, 2010) The counts were dismissed on the grounds of violating of Graber s First Amendment rights to record and share a conversation that took place in a public area. That being said, the exchange Graber had with the Troopers on a public highway, like the exchange Flora had in State v. Flora, was deemed not a private conversation and thus not within the purview of the statute. (Maryland v. Graber, 2010) Also referenced in the Graber decision was the Pennsylvania case Commonwealth v. Henlen (1989), where, even though the events of the case did not occur in a public place, a law enforcement officer was still found to have no reasonable expectation of privacy. A prison guard suspected of stealing an inmate s property had secretly tape-recorded his interrogations with a state trooper, and turned the tape into internal affairs with a complaint of harassment. The guard was charged with violating the Pennsylvania Wiretapping and Electronic Surveillance Act of 1978, or 18 Pa. Cons. Stat. ß 5701, but ultimately the charges were dismissed on the grounds that the circumstances did not establish that the state trooper possessed a justifiable expectation that his words would not be subject to interception because he interrogated appellant while acting in his official capacity, took notes, and allowed a third party to be present for a time. (Commonwealth v. Henlen, 1989) The Massachusetts case Glik v. Cunniffe et al (2011) reached a conclusion that though not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment. In October 2007, Simon Glik had used his cell phone to record three police officers arresting a young man on the Boston Commons out of concern that excessive force was used in the arrest. One of the police officers asked Glik if his phone was recording audio as well as video. When Glik affirmed, he was arrested for violating the Massachusetts wiretap statute. This charge, as well as charges of disturbing the peace and aiding the escape of a prisoner, were judged baseless and dismissed. Glik then filed suit, claiming that the arrest violated his First and Fourth Amendment rights. The case ultimately concluded in Glik s favor, with the United States Court of Appeals for the First Circuit ruling that, in addition to the violation of Glik s First Amendment rights, by recording on his cell phone in plain sight, Glik did not violate the Massachusetts wiretap statute as his recording could not be deemed secret. Therefore, the officers lacked probable cause to arrest Glik and by doing so violated his Fourth Amendment rights. (Glik v. Cunniffe et al, 2011) While it has been overwhelmingly established in the states with wiretapping laws that police officers have no expectation of privacy when performing official duties and that therefore citizens can lawfully record them, it has not been unanimously decided among these states that these recordings are protected under the First Amendment. 3

4 In Pennsylvania, the cases Matheny v. Allegheny County, et al (2010) and Kelly v. Borough of Carlisle, et al confirmed a lack of reasonable expectation for privacy on behalf of the law enforcement officers. However, claims of First Amendment violations in both cases were not confirmed by the courts and therefore did not factor into the conclusions of either case. Elijah David Matheny, like Glik, had sued for having his First and Fourth Amendment Rights violated after being arrested for using his cell phone to record video and audio of a law enforcement officer. He and a friend had been looking through the trash in a Dumpster at the University of Pittsburgh for items thrown away by college students when Officer Nicholas Mollo, of the university police, arrived on the scene and handcuffed Matheny s friend. Matheny recorded the incident on his cell phone. Mollo, like the officer in Glik s case, then confirmed with Matheny that his cell phone had recorded audio as well as video, and promptly arrested him. (Matheny v. Allegheny County, et al, 2010; Reed 2010) Matheny was soon released on bail, but sued Mollo on claims that his First Amendment and Fourth Amendment rights had been violated. These complaints were respectively dismissed in the United States District Court for the Western District of Pennsylvania on the grounds that there is no First Amendment right that guarantees the right to record officers, and that because of this, there was not a lack of probable cause to arrest Matheny. (Matheny v. Allegheny County, et al, 2010) However, in September 2010, Allegheny County and the District Attorney s Office agreed to issue a memo stating that the recording of police officers in a public place does not violate the state Wiretap Act, and as of September 2011, the American Civil Liberties Union (ACLU) of Pennsylvania reached a settlement with the University of Pittsburgh (ACLU-PA website). The ACLU-PA website refers to the October 2010 case Kelly v. Borough of Carlisle, et al (2010). Brian Kelly had been arrested for videotaping an interaction with a police officer who had pulled him over for traffic violations. Unlike in Glik s case, in which the recording device was in plain site, there was disagreement between the two parties in this case as to whether the camera was in plain sight, as Kelly claims, or hidden by Kelly s hands, as the officer claims. (Kelly v. Borough of Carlisle, et al, 2010) Like in Glik s case, the charges against Kelly were dropped, and Kelly also then sued for violation of his First and Fourth Amendment rights. (ACLU-PA website; Kelly v. Borough of Carlisle, et al, 2010) Although the Plaintiff s claims against the borough were ultimately dismissed, the case reaffirmed that it was clearly established that a reasonable expectation of privacy was a prerequisite for a Wiretap Act violation, and that police officers do not have a reasonable expectation of privacy when recording conversations with suspects. The officer was granted immunity on the Fourth Amendment claim, and the First Amendment claim was rejected by the District Court on the grounds that it would not have been clear to a reasonable officer that arresting Kelly for violating the Wiretap Act would infringe upon his free speech rights, and that the First Amendment did not clearly establish the right to videotape police officers at a traffic stop. (Kelly v. Borough of Carlisle, et al, 2010; Rahdert 2010) The cases of Kelly v. Borough of Carlisle, et al and Matheny v. Allegheny County, et al establish the state of Pennsylvania to agree that law enforcement officials do not have an expectation of privacy when performing public duties. However, unlike the states of Massachusetts and Maryland, the state of Pennsylvania has not extended the right to record in 4

5 such situations to be a protection under the First Amendment, which seems to be ultimately why the Plaintiff s claims were dropped in both Kelly v. Borough of Carlisle, et al and Matheny v. Allegheny County, et al. The Illinois Eavesdropping Statute and the First Amendment This year, an eavesdropping case in Illinois that ruled in favor of the alleged eavesdropper seemed to negate any of the doubts taken into account by other states that law enforcement officers have a reasonable expectation of privacy. Instead, the case concluded in favor of the accused due to an exception within the Illinois eavesdropping statute. 20 year-old Tiawanda Moore had recorded an interaction with two Chicago police officers who she felt were trying to talk her into dropping a complaint of sexual harassment against a patrol officer. She was then criminally charged for eavesdropping, and faced up to 15 years in prison if convicted. The Criminal Court jury acquitted her on Wednesday, August 24, her lawyer s argument having been centered on an exception in the statute that allows for recording without consent if there is reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording. (Meisner and Haggerty, 2011; 720 Illinois Compiled Statutes 5/14-3) One juror told the Chicago Tribune, If what those two investigators were doing wasn't criminal, we felt it bordered on criminal, and she had the right to record it. (Meisner and Haggerty, 2011) Pat Camden, a spokesman for the Fraternal Order of Police in Chicago, spoke to the Tribune in general support of the eavesdropping law, claiming that it prevents people from recording the police in order to take their words out of context and make baseless accusations. (Meisner and R. Haggerty, 2011) In 2010, the ACLU had brought up a case challenging the overall constitutionality of the Illinois Eavesdropping Statute, but the ACLU s claim that the statute violated the First Amendment was denied. The court specifically confirmed that the First Amendment does not guarantee the right to record a public event and that the ACLU was proposing an unprecedented expansion of the First Amendment (ACLU v. Alvarez, 2011). It was not until the September 15, 2011 decision of the case of Allison v. Illinois (2011) that the state of Illinois reflected any doubt of the police having a reasonable expectation of privacy while performing their public duties. Michael Allison had allegedly attempted to use a voice-recording device in interactions with law enforcement officials regarding a city ordinance violation he received for allegedly having an abandoned vehicle on his property. Having faced up to seventy-five years in prison if convicted, Allison claimed among other counts that the Illinois Eavesdropping Statute violated his First Amendment rights. (Allison v. Illinois, 2011, Balko 2011) On September 15, a judge ruled in Allison s favor on the grounds that the eavesdropping statute violated his First Amendment rights to gather information by audio recording public officials in performing their public duties. (Allison v. Illinois, 2011) While the court acknowledges that there are time, place, and manner restrictions on the right to record, it concludes that the right to do so in gathering information from public officials does not contain such limits (Allison v. Illinois, 2011), the reason being that: 5

6 A statute intended to prevent unwarranted intrusions into a citizen's privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties. Such action impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information. (Allison v. Illinois, 2011) Conclusion It seems that the mentioned states with strict, all-party consent laws against wiretapping and eavesdropping have all reached a point of agreement that police officers, as public officials acting in the public duty, do not have a reasonable expectation of privacy if for different reasons. For example, in Maryland v. Graber (2010), the reason for a lack of privacy expectations seemed to be based off the situation being on a public highway, which could theoretically allow, for example, people in passing cars with their windows down to overhear the conversation (Cato Institute, 2010). In Allison v. Illinois (2011), it seems the lack of privacy stems from the public s right to gather information on all public matters. Either way, the states of Massachusetts, Maryland, Pennsylvania, and Illinois all seem to agree that no, police officers do not have a reasonable expectation of privacy while carrying our their public duties. This difference between other states and Illinois may be a reflection on the difference between the right to record occurrences in a public place versus the right to record the actions of public people carrying out public duties. Massachusetts, Maryland, and Pennsylvania seem to agree on the right to record within any public place, while Illinois only seems to support the recording of public people or officials as a way of gathering information of public concern. This especially relates to the outcome of ACLU v. Alvarez, which specifically affirmed that there is no constitutional right to record a public event (ACLU v. Alvarez, 2011). However, cases in Pennsylvania reflect a need for the laws to be updated on the lack of privacy expectations on behalf of law enforcement, as even though the circumstances calling for the acknowledgement of First Amendment rights violations in Kelly v. Borough of Carlisle, et al and Matheny v. Allegheny County, et al appear to have been sufficiently parallel to those circumstances in Glik v. Cunniffe and Maryland v. Graber, the alleged wire tappers in the Pennsylvania cases did not see the violation of their First Amendment rights acknowledged. Similarly, the part of the eavesdropping statute of Illinois that specifically names recording the speech of law enforcement as a class 1 felony is inconsistent with the stance taken by the judge in Allison v. Illinois that Allison s First Amendment rights to gather information on public affairs were violated, and should also be updated accordingly. 6

7 References American Civil Liberties Union v. Anita Alvarez. Civil Action No.: 10 C United States District Court for the Northern District of Illinois, Eastern Division. 10 January Accessed 16 November ACLU-PA website. Matheny v. Allegheny County, et al. American Civil Liberties Union of Pennsylvania. Accessed 18 November Allison v. Illinois. Case No. 3:11-mc-07-WDS-DGW. United States District Court For The Southern District Of Illinois. 22 March Online. Accessed 14 October Balko, R. (2011, June 8). Chicago State's Attorney Lets Bad Cops Slide, Prosecutes Citizens Who Record Them. Huffington Post. Retrieved from Accessed 17 November 2011 The Cato Institute. (2010, September 22). Policy Forum: Recording the Police: Is Citizen Journalism against the Law?. Podcast retrieved from Glik v. Cunniffe, et al. No United States Court of Appeals for The First Circuit. 26 August Online. Accessed 14 October Illinois 720 ILCS 5/ Criminal Code of Article 14. Online. Retrieved from Accessed 14 October Kelly v. Borough of Carlisle. No United States Court of Appeals for the Third Circuit. 4 October Online. Accessed 14 October Matheny v. Allegheny County, et al. Civil Action No United States District Court for the Western District of Pennsylvania. 16 March Online. Accessed 14 October Maryland Courts and Judicial Proceedings, Section Online. Retrieved from Accessed 14 October State of Maryland v. Anthony Graber. Case No. 12-K Circuit Court of Maryland, Harford County. 27 September Online. Accessed 14 October 7

8 Massachusetts Code. Part IV Crimes, Punishments and Proceedings in Criminal Cases. Title I Crimes and Punishments. ALM GL ch. 272, 99. Online. Accessed 14 October Meisner, J. and R. Haggerty. (2011, August 25). Woman who recorded cops acquitted of felony eavesdropping charges. Chicago Tribune. Retrieved from Commonwealth of Pennsylvania v. Thomas Dean Henlen. Case No. 56 W.D. Appeal Docket Supreme Court of Pennsylvania. 11 October Online. Accessed 17 November Pennsylvania Code. Title 18 - Crimes and Offenses. Chapter 57 - Wiretapping and Electronic Surveillance Online. Retrieved from Accessed 14 October Rahdert, M.C. New Case Summaries: Kelly v. Borough of Carlisle. American Bar Association. 5 October ID=262. Accessed 18 November Reed, P. (2010, July 15). DA's office agrees to unusual settlement. Pittsburgh Post-Gazette. Retrieved from Accessed 17 November 2011 United States Code: Title 18,2511. Interception and disclosure of wire, oral, or electronic communications prohibited. Retrieved from Accessed 14 October Revised Code of Washington. Title 9 Crimes and Punishments. Chapter 32 Privacy, Violating Right of. Online. Accessed 17 November State of Washington v. James Flora. Case No. No I. Court of Appeals of Washington, Division One. 14 December Online. Accessed 17 November 8

Citizens policing the police an evaluation of citizens recording police officer and wiretapping laws

University of Central Florida HIM 1990-2015 Open Access Citizens policing the police an evaluation of citizens recording police officer and wiretapping laws 2013 Thiago Coelho University of Central Florida