The Law Developer

     A Maryland man, Anthony Graber, decided to drive his motorcycle at reckless speeds down public streets and, in a stroke of genius, decided to record his antics from his helmet camera for later viewing on YouTube. Fortunately for the other drivers of Maryland, a police officer caught Mr. Graber and arrested him. And, thanks to Mr. Graber’s helmet camera, we can watch it all on YouTube.

     Happy ending, right? Unfortunately, no. Mr. Graber had his computer confiscated and is now being charged with violating Maryland’s wiretapping law for recording the conversation between him and the police officer. Here is the relevant section of the statute:

§ 10-402.

(a) Except as otherwise specifically provided in this subtitle it is unlawful for any person to:

(1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(2) Wilfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle;

     Based on a plain reading of the statute, it appears as though Mr. Graber violated the law, but a plain reading of the statute would most likely violate the First Amendment. A Maryland appellate court, however, has determined that the “oral communication” portion of the statute requires “factual finding[s] of reasonable expectations of privacy.” In other words, if there is no expectation of privacy in the communication, there is no violation of the statute when applied to oral communications.

     Let’s take a step back and discuss Miranda warnings. Miranda warnings are required to be given to a person who has been taken into custody by the police. Yet, courts have held that when a person is in the custody of police officer during a traffic stop, the police do not have to read the Miranda warnings. This was decided in the case Berkemer v. McCarty, in which the U.S. Supreme Court held that people pulled over during a traffic stop are in temporary police custody, but because (among other reasons) the stop occurs in public view, Miranda warnings are not necessary. The Court believes that because the public is viewing the stop, the police cannot be as coercive as they would be during a normal custodial interrogation.

      Most of you know where I’m going with this. If Miranda warnings are not necessary during a traffic stop because it occurs in the public view, the police officer who pulled over Mr. Graber could not have had a reasonable expectation of privacy during this traffic stop. The police want it both ways. Traffic stops are in the public view when the question is whether or not to read Miranda warnings, but the police expect privacy during the traffic stop when it comes to detainees taping their actions. Leave it to the cops to take any good will they earned by arresting a self-centered jerk who threatens the lives of everyone on the street and throw it away by going overboard and violating the guy’s First Amendment rights. Hopefully, this guy will have the charges dropped and maybe even win some money in a civil rights suit against the police.

     One last thing before I wrap this up, the article tries to paint the officer who pulled over Mr. Graber as reckless and overzealous. I just don’t see it. The officer did pull his gun, but practiced excellent muzzle control. Given the circumstances, pulling a gun doesn’t seem that out of line. The writer also tries to fault the officer for waiting a few seconds to announce himself as an officer (he was a plain clothes officer). Watching the video, the officer secured the situation and then announced himself. I am as critical of the police as anybody, but I just don’t see an issue here. The officer acted the way that I would expect an officer to act under the circumstances.

     This whole thing puts me in a weird position. I have to defend the first arresting officer because the article writer tries to fault him in the situation. Then I have to defend the attention-seeking jerk because other police officers violate his First Amendment rights. Defending a police officer and a narcissist all in the same post makes me feel dirty. I guess if I want to be a lawyer I better get used to that dirty feeling.

via TechDirt

Stephen Burch

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In 2007, the 5^th Circuit ruled that a police officer can search your cell phone without a warrant as a search incident to arrest (US v Finly article – ruling (pdf)) .

Well apparently the Ohio Supreme Court did not agree. They realized that cell phones are now much more than just phones and that police need probable cause to search them.

While I most certainly agree with the Ohio Supreme court that cell phones are more than just phone, this could have easily been avoided by simply putting a password on the phone.  While an arrestee may or may not have a 5^th amendment right to give up his password and the police may have the ability to crack the password, to do this they will most likely need a warrant. This means that the police cannot search his phone fishing for more evidence or evidence of a different crime.

While I certainly recommend not doing anything illegal, I also recommend password protecting your phone and having a way to wipe its contents remotely. That way if it is ever stolen, you can be sure that personal information is safe. And, making the police’s job more difficult is always a good side effect.

Stephen Burch

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