Do Police Have Privacy Rights During Traffic Stops?

What is the extent of police officers’ right to privacy during routine traffic stops, especially with regard to photos or recording? Since they are typically pulling people over on public roads, it would fall under “fair view,” meaning if another person could reasonably witness it, photography (including videography) would be allowed, right?

Not so much.

Take the case of Anthony Graber, for example. When Maryland State Troopers pulled him over in March of 2008, he admitted to speeding on his motorcycle down I-95.

Officer Joseph Uhler pulled him over when Graber sped past his unmarked car, claiming he was traveling 100 mph. Uhler did not have a radar gun. Graber was pulling off the exit ramp, when Uhler cut him off with his car, and hopped out with his gun drawn.

Uhler didn’t mention a gun in his report, but he did note that he saw a “strange looking object on the operator’s helmet, which he later realized to be a video camera.”

That video camera was recording the whole incident?speeding (which Graber fully admits to), and at one point in the video, Graber turns back, showing Uhler’s unmarked car, without lights on. The video shows Uhler getting out of the car with his gun drawn, waiting several seconds to identify himself as an officer.

In the end, Graber wasn’t hurt. He took his citation for traveling 80 mph in a 65 mph zone. So what’s the problem?

Aside from the behavior of Officer Uhler, Youtube. After realizing the camera on his helmet had recorded the entire altercation, Graber posted the video online. Whatever may have happened, the version of the video online certainly doesn’t portray Uhler in a good light.

Ten days later, Uhler discovered the video. He issued an arrest warrant against Graber, as Uhler was not informed of the recording (“violation of criminal law 10-402(b)”). Uhler also added Reckless Driving and Negligent Driving charges.

Graber was residing with his parents when six police officers searched his home in the morning. He was not arrested, as he was recovering from gallbladder surgery, however police seized family computers and told Graber to turn himself in as soon as possible.

Graber spent 26 hours in jail, and was released upon his own recognizance, facing charges of violating wiretapping laws.

According to the National Conference of State Legislatures, there must be a reasonable expectation of privacy in order for the violation to be held valid.

There were other people on the Interstate exit ramp. While Uhler appears to be in plainclothes and driving an unmarked car, exactly how much privacy was he in expecting in broad daylight?

While the American Civil Liberties Union and the Maryland Attorney General’s office have stated charges against Graber would not stand, Hartford County State’s Attorney Joseph Cassilly made the following statement in a magazine interview:

“The officer having his gun drawn on or being on a public roadway has nothing to do with it. Neither does the fact that what Mr. Graber said during the stop could be used in court. That’s not the test. The test is whether police officers can expect some of the conversations they have while on the job to remain private and not be recorded and replayed for the world to hear.

I don’t have any hard and fast rule I can give you. It depends on the circumstances, and if the officer in those circumstances has good reason to think he wouldn’t be recorded. Should a domestic violence victim have a camera shoved in her face and privacy violated because someone is recording the officer?…I’m not saying that everything a police officer does on the job should be for public consumption.”

Both sides bring up some interesting points. Whatever the result of this trial, it will certainly set an interesting precedent for privacy and wiretapping laws, as well as police behavior.