We talk a lot here about how evolving technology can work for you or against you. A perfect example is the use of cell phones to record police activity during traffic stops.
Even though you may be within your rights to record police, they may not see it that way, which can lead to no end of trouble for you. Recall the case of Anthony Graber (NMA E-Newsletter #77, YouTube Video vs. Wiretap Laws), a motorcyclist who posted footage online of a traffic stop in Maryland. Graber was subsequently harassed by police and faced up to 16 years in prison for allegedly violating Maryland’s wiretap law. Charges against him were eventually dropped, but not before he was put through the legal sausage grinder. Use caution whenever you choose to hit the record button.
With the increasing popularity of dash cams in personal vehicles, we thought it would be helpful to revisit some of the issues surrounding the recording of road encounters. First, dash cams are legal, as long as they don’t obscure your vision. The camera can only take up a five-inch square on the driver’s side of the vehicle or up to a seven-inch square on the passenger’s side.
Next, there is an important legal distinction between the taking of a photo (which has long been protected) and the recording of audio (even as part of a video), which some states have tried to regulate using wiretapping laws. This is where the legal pitfalls lie and where Graber got into trouble. Laws in 38 states permit audio recording with the consent of one party to the conversation. That means you can record your own interactions with officers or others without violating wiretap laws since you’re one of the parties.
Twelve states require the consent of all parties before you begin recording. If you live in one of these states, let your passengers know if your dash cam is recording audio and have them acknowledge it within earshot of the recording.
In all but two of those states (Massachusetts and Illinois) courts have ruled that these consent requirements do not apply to on-duty police officers because they have no expectation of privacy. However, in Massachusetts an appeals court decision does allow citizens to record police as long as the recording device is in plain view. Illinois’ wiretapping law was ruled unconstitutional in 2013. Note that some courts have ruled that police do have an expectation of privacy when their duties are taking place out of public view.
Police have been using dash cams for years to record their interactions with the driving public as a way to protect themselves from allegations of wrongdoing. In Russia drivers use dash cams to protect themselves from scammers who fake accidents and then demand money or threaten legal action.
And that is one of the benefits of having the camera rolling as you drive. Dash cam footage could help protect you in case you’re involved in an accident or other incident on the road. Some advanced systems capture GPS coordinates and can even measure G forces inside your vehicle. But be careful. Such data may be admissible in court, and, depending on what’s been recorded, it may work against you.
Aside from insurance or lawsuit situations, a dash cam could help you during a traffic stop. Police have been known to “lose” squad car dash cam videos. Having your own back-up could help document your version of events, especially when an officer may have done something illegal or inappropriate. Consider a dual-lens dash cam so you can record what’s going on in front of your vehicle and what’s going on behind. (Here’s an example.)
There is no easy answer to whether or not police can search and seize footage from your personal dash cam without a warrant. They may be able to if they have reason to believe the camera contains evidence of a crime. They may also be able to if you’re under arrest. Courts around the country have issued a patchwork of rulings regarding searching cell phones after arrest, some of which may apply to dash cam cases. (Fourth Amendment law regarding personal electronic devices continues to evolve rapidly and may never be adequately settled.)
We have seen reference to a case in which police, responding to an auto accident, seized personal dash cam footage at the scene, ostensibly as part of the accident investigation. If true, this is reminiscent of first responders accessing a vehicle’s black box data for the same reason. And like a black box, the information could help exonerate you or land you in deeper trouble. However, unlike a black box, which you cannot turn off or disconnect, you can turn off your dash cam at any time.
Editor’s Note: Do you use a dash cam in your travels? Let us know if you do and why. Has it helped you prove your case after an accident? Does it make your driving more enjoyable? Tell us your story. Send your thoughts to [email protected].