Posted on 06/14/2007 8:40:57 AM PDT by BGHater
Cumberland County District Attorney David Freed said he will review all evidence before deciding whether to prosecute an 18-year-old Carlisle man for taping a police officer during a traffic stop.
But two defense attorneys versed in wiretapping cases said Brian D. Kelly shouldn't even have been charged.
The state Supreme Court has ruled that taping police in such public situations is legal, they said.
Freed said the evidence he'll study will include not only police recordings of the May 24 incident, but the audio and video Kelly shot before Carlisle police arrested him on a felony wiretapping charge.
"Once the evidence is reviewed, we'll be in a better position to speak about it," Freed said yesterday.
Kelly is charged under a state law that forbids the recording of oral communications without consent. That count carries a penalty of up to 7 years in prison.
"When people interact with the police, they ought to be able to record that to show a judge and a jury what happened," Camp Hill lawyer Dennis Boyle said.
The key, said Simon Grill, a Reading attorney, is that police can't expect privacy while performing their public duties.
"If it's a public interaction, I think the police have a tough row to hoe" to secure a wiretapping conviction, Grill said.
Dozens of phone calls and e-mails The Patriot-News received since Kelly's story appeared in Monday's editions have been overwhelmingly critical of his arrest.
Police said Kelly was riding in a pickup truck that was pulled over for traffic violations and was arrested after obeying an officer's orders to turn off his camera and hand it over.
Kelly said he spent 26 hours in county prison until his mother posted her house as security for his $2,500 bail.
Freed said that, in general use, the wiretap law is more a curb on the police than a hindrance to the public. The law requires court approvals before police can set up wiretaps to monitor suspected criminal activity, he noted.
Still, he said, the law is "so broad" it could be interpreted as barring recording of anyone's conversation without consent.
Wiretapping cases his office handles more usually involve people locked in bitter romantic or business disputes who are trying to secretly record another party doing something wrong, he said.
Grill and Boyle said case law is firmly on Kelly's side.
Boyle cited a 1998 state Supreme Court decision that voided a civil lawsuit filed by a York County police officer who accused his chief of violating the wiretapping law.
The court ruled that Officer James Agnew Jr. had no grounds to sue Hellam Twp. Police Chief Michael Dupler for secretly using an intercom to listen to officers' conversations in the squad room.
Agnew had no "justifiable expectation of privacy" in such a setting, the court found, noting that other officers could overhear what was said.
The court also cited an earlier ruling that voided wiretapping charges against a corrections officer who secretly tape-recorded a state trooper interrogating him about alleged wrongdoing while another person was present.
"Pennsylvania is a state that says all [recordings of conversations] require prior consent. But you have to have the expectation of privacy first," Grill said. "There's no expectation of privacy with a police officer."
Boyle, who has offered to help Kelly in his legal battle, said citing the Agnew ruling is usually enough to convince prosecutors to drop wiretap charges in such cases.
"I'd like to clarify this so no other people are arrested like this," Boyle said.
MATT MILLER: 249-2006 or mmiller@patriot-news.com
The police seriously over stepped on this one.
I want that jack booted thug fired.
This case doesn't make much sense.
Local officers really don’t want to be recorded by the general public on a regular basis. I think this trial is all about preventing it from becoming commonplace.
Does that mean that the use of video cameras routinely used in squad cars are breaking the law? Or do they first ask the suspected perp permission - (TIC)
Well you can't put Cops back in the bottle.
Bad, boys, bad boys, whatch'yu gonna do when they come for you . . .
Exactly - what about all the cams now taping the publics every move in most cities? They never asking MY permission. Any of You ever been asked?
Any time you get pulled over these days you’re basically on candid camera. Squad cars are all video equipped both for evidence gathering & the officer/trooper’s safety.
You have to wonder how it’s legal for the state to tape a traffic stop, but not for the person being stopped.
What does that tell you? Your so-called "expectation of privacy" is shrinking year-by-year.
Exactly. It would make no sense for the servants (employees of the state) to have more powers than we, their masters.
Hey the “Cruiser Cam” gets to film you, why can’t my “mini van cam” film them...
The cop needs to be busted down to “Mall Ninja Security Guard” complete with duct taped plates and tactical wheel barrow...
The DA is the one who accepted the charges and should be the first to be fired. The tape is evidence gathering and should be allowed just like DWI tapes in trials. It’s a sad state of affairs for this to occur.
There is a legal difference between video recording and audio recording. You are generally on safer ground if the sound is turned off.
Laws also vary from state to state.
There was a case in Massachusetts a few years ago concerning a guy who recorded the cops during a traffic stop. The cops accused him of using\selling drugs etc. The courts defended the cops in this case and wouldn’t allow the tape to be used in his defense. Maybe someone else remembers this.
I’m as much a Law-and-Order guy as the next Conservative but cops outta control make my blood boil
Police unions don’t want their members held accountable.
Cop should be fired pronto.
What if you have a camera hidden in your home, and catch someone breaking into your house and stealing something. Can you be charged under this law?
Police that are out of control hurt all of us. This case is a great example of the “do as I say” attitude on behalf of a lot of our gubmint agencies at the local, state and federal levels.The only way to stop it is to raise holy hell and keep raising it at every opportunity you get.
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