You may remember the case of Anthony Graber, the Maryland motorcyclist charged with violating the state’s wiretapping statute for recording his traffic stop and posting it on YouTube. I’ve said several times over the last few months that these charges are based on a misreading of the law; minus a “reasonable expectation of privacy,” recording an oral communication does not violate the wiretapping statute.
As it turns out, the Maryland Attorney General agrees.
The Maryland Attorney General has released an opinion advising a state legislator that, contrary to the claims of Harford County State’s Attorney Joseph Cassilly, a traffic stop is probably not an instance where a police officer can claim a reasonable expectation of privacy.
The AG’s opinion provides a thorough survey of Maryland’s and other states’ decisions on the issue, giving three possible interpretations of the wiretap statute as applied to a citizen recording a traffic stop.
First, a court might agree with the theory that police encounters are private conversations, but the AG found that this “seems an unlikely conclusion … particularly when they occur in a public place and involve the exercise of police powers.” That sounds familiar.
Second, a court might conclude that the Maryland statute forbids only the surreptitious recording of a police stop. The opinion deems this an unlikely outcome due to differences between the language of the Maryland law and the wiretapping statutes of Massachusetts and Illinois.
The opinion settles on its third possible outcome, agreeing with what I, Radley Balko, Carlos Miller, the Maryland ACLU, the Maryland courts, other Maryland State’s Attorneys, and the Maryland Attorney General’s previous opinions have said: the Maryland wiretap statute does not permit the prosecution of citizens for recording the actions of public officials in public places.
Graber’s court date is set for October. The AG’s opinion should halt his prosecution and further abuse of the Maryland wiretap statute.