If a Maryland police car's dashboard camera accidentally picks up someone's conversation without their consent, has the officer broken the state wiretapping law?

Plain-English summary

Montgomery County Police Chief Charles A. Moose asked the Attorney General whether the State Wiretap Act would be violated when officers used newly installed video and audio recording equipment in patrol cars, specifically whether an officer who "inadvertently" recorded the audio portion of a videotaped encounter with someone, without that person's consent, could be charged with a Wiretap Act violation.

The opinion concluded that an officer following the Police Department's own policy for using the equipment, which required consent (or, for traffic stops, notice) before recording audio, would comply with the Wiretap Act. It analyzed the department's equipment and procedures against the Act's specific traffic-stop exception and its all-party-consent exception, and found both were satisfied by the department's policy. It then concluded separately that an inadvertent recording, whether because a passerby's statements were picked up unintentionally or because the equipment activated without the officer's knowledge, would not violate the Act because the recording either would not capture a legally protected "oral communication" (if the speaker had no reasonable expectation of privacy) or would not meet the Act's requirement of a "wilful interception."

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, exception, or procedure mentioned here. The opinion's own editor's note flags that the General Assembly amended the traffic-stop provision, CJ §10-402(c)(4), after this opinion issued, by Chapter 107, Laws of Maryland 2002.

Common questions

Was it illegal for a Maryland officer to record audio during a traffic stop without asking the driver's permission?
At the time of this opinion, no, as long as the officer met the Wiretap Act's specific traffic-stop exception: the officer had initially stopped the vehicle for a traffic violation, was a party to the conversation, had identified themselves as a law enforcement officer, informed the other parties of the interception at the start of the conversation, and made the recording as part of a videotape. The opinion noted that provision only required notice to the driver, not the driver's consent.

What made a recorded conversation with police "private" enough to be protected by the Wiretap Act?
The opinion explained that Maryland courts had construed "oral communication" under the Wiretap Act to track a "reasonable expectation of privacy" standard similar to federal wiretap law. Statements a person "knowingly exposed to the public," such as loud shouting that could be overheard by a neighbor, were not protected, and the opinion noted that a driver stopped by a uniformed officer during a traffic stop, aware statements might become courtroom evidence, was in a similarly weak position to claim the conversation was "private."

Could an officer get in trouble for a microphone that recorded someone by accident?
No, according to the opinion. It explained that the Wiretap Act requires a "wilful interception," meaning the person must know their conduct is illegal, so an officer who unintentionally activated a microphone or whose equipment malfunctioned would not meet that standard, drawing on the reasoning of a federal Fourth Circuit case holding that an unmonitored, unrecorded microphone malfunction was not even an "interception" at all.

Background and statutory framework

Maryland's Wiretap Act, codified at Courts & Judicial Proceedings ("CJ") Article §10-401 et seq., is patterned after the federal wiretapping law (Title III of the Omnibus Crime Control and Safe Streets Act of 1968) but is more stringent in several respects, including its default requirement that all parties to a conversation consent to an interception (CJ §10-402(c)(3)), compared to federal law's one-party-consent standard. The Act does not separately regulate video surveillance, which the opinion noted is instead governed by Fourth Amendment and Maryland Declaration of Rights Article 26 principles.

Montgomery County's patrol car system used a ceiling-mounted video camera plus two microphones (one fixed inside the car, one wireless and worn by the officer), feeding a VCR-like recorder in the trunk. Department policy triggered mandatory video recording in four situations (activating overhead lights, pursuit, traffic stops, prisoner transport), while audio recording required either the traffic-stop notice-and-record procedure or the officer's own discretion paired with obtaining, and then recording, the subject's consent before turning on the microphone. The opinion applied the Act's specific traffic-stop exception at CJ §10-402(c)(4) (added by Chapter 140, Laws of Maryland 1991) and its general all-party-consent exception at CJ §10-402(c)(3) to this policy, and separately analyzed the Act's "oral communication" and "wilful interception" elements under CJ §10-401(2)(i) and CJ §10-402(a) to address inadvertent recordings.

Citations and references

Statutes:
- CJ §10-402(a)(1)-(3), the Wiretap Act's general prohibition on wilful interception, use, or disclosure of wire, oral, or electronic communications
- CJ §10-402(b) and §10-410, the criminal and civil penalties for a Wiretap Act violation
- CJ §10-405, the exclusionary rule for communications intercepted in violation of the Act
- CJ §10-402(c), the Act's list of circumstances permitting lawful interception
- CJ §10-402(c)(2), the one-party-consent exception for law enforcement investigating certain enumerated serious offenses
- CJ §10-402(c)(3), the all-party-consent exception for interceptions not made to commit a crime or tort
- CJ §10-402(c)(4), the specific traffic-stop exception added by Chapter 140, Laws of Maryland 1991, later amended by Chapter 107, Laws of Maryland 2002
- CJ §10-401(2)(i), defining "oral communication" as words spoken in private conversation
- CJ §10-401(3), defining "intercept" as the aural or other acquisition of communication contents through an electronic, mechanical, or other device
- CJ §10-401(4), defining "electronic, mechanical, or other device"
- 18 U.S.C. §2510(2), (4), and (5), the federal wiretap statute's parallel definitions
- 18 U.S.C. §2511(2)(c)-(d), the federal one-party-consent exception
- Maryland Declaration of Rights, Article 26, the state constitutional provision governing searches, relevant to video surveillance not covered by the Wiretap Act

Cases:
- Ricks v. State, 312 Md. 11, 537 A.2d 612 (1988), holding the Wiretap Act does not address video surveillance alone
- Fearnow v. C&P Telephone Co., 104 Md. App. 1, 655 A.2d 1 (1995), aff'd 342 Md. 363, 676 A.2d 65 (1996), construing "oral communication" to incorporate a reasonable-expectation-of-privacy standard
- Malpas v. State, 116 Md. App. 69, 695 A.2d 588 (1997), holding loudly shouted statements overheard by a neighbor were not protected "oral communications" because they were knowingly exposed to the public
- Hawes v. Carberry, 103 Md. App. 214, 653 A.2d 479 (1995), equating "private conversation" with a subjectively and objectively reasonable expectation of privacy
- Benford v. American Broadcasting Co., 649 F. Supp. 9 (D. Md. 1986), construing the Maryland Wiretap Act's "wilfully" standard
- John Doe Trader Number One, 889 F.2d 240 (7th Cir. 1990), and Holman v. Central Arkansas Broadcasting Co., 610 F.2d 542 (8th Cir. 1979), federal cases on statements knowingly exposed to the public
- State v. Gorwell, 339 Md. 203, 661 A.2d 718 (1995), on the double jeopardy "manifest necessity" standard, cited in a footnote on the Malpas case's procedural history
- Kansas v. Timley, 975 P.2d 264 (Ct.App. Kan. 1998); United States v. Clark, 22 F.3d 799 (8th Cir. 1994); United States v. McKinnon, 985 F.2d 525 (11th Cir. 1993); and United States v. Rodriquez, 998 F.2d 1011 (4th Cir. 1993), cited for the view that a suspect in a police car lacks a reasonable expectation of privacy
- Earley v. Smoot, 846 F. Supp. 451 (D. Md. 1994), construing the Maryland Wiretap Act's wilfulness requirement
- Sanders v. Robert Bosch Corp., 38 F.3d 736 (4th Cir. 1994), and Thompson v. Dulaney, 970 F.2d 744 (10th Cir. 1992), federal cases holding an unmonitored equipment malfunction was not an intentional interception

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2000/85oag225.pdf

Original opinion text

Gen. 225] 225

 WIRETAP AND ELECTRONIC SURVEILLANCE

L AW E NFORCEMENT O FFICERS ) O FFICER W HO INADVERTENTLY
M AKES A UDIO R ECORDING IN C ONNECTION W ITH
A UTHORIZED V IDEOTAPING W OULD N OT V IOLATE W IRETAP
A CT

                      August 11, 2000

Charles A. Moose, Ph.D.
Chief of Police
Montgomery County Police Department

  You have asked for our opinion concerning the application of

the State Wiretap Act to the installation of video and audio recording
equipment in police cars in Montgomery County. In particular, you
ask whether an officer who "inadvertently" records the audio portion
of a videotaped conversation with an individual without that
individual's consent could be charged with a violation of the State
Wiretap Act.

  In our opinion, an officer who follows the Police Department

policy for recording the audio portion of a videotaped encounter
with a citizen would be in compliance with the State Wiretap Act.
An officer who inadvertently makes a recording would not violate
that Act.

                              I

                        Background

A. The Wiretap Act

  The Maryland statute that governs wiretapping and electronic

surveillance, sometimes referred to as the Wiretap Act, is codified
at Annotated Code of Maryland, Courts & Judicial Proceedings
Article ("CJ"), §10-401 et seq. The State Wiretap Act was patterned
after the federal wiretapping and electronic surveillance law, Title
III of the Omnibus Crime Control and Safe Streets Act of 1968,
Pub.L.No. 90-351, 82 Stat. 212, codified at 18 U.S.C. §2510 et seq.
However, the State statute is more stringent than the federal law in
several respects. Gilbert, A Diagnosis, Dissection, and Prognosis of
Maryland's New Wiretap and Electronic Surveillance Law, 8 U.
Balt. L. Rev. 183, 191 (1979).

  Except as specifically authorized in the Wiretap Act, a person

may not "wilfully intercept, endeavor to intercept, or procure any
other person to intercept or endeavor to intercept, any wire, oral, or
electronic communications." CJ §10-402(a)(1). In addition, it is
unlawful to wilfully use or disclose the contents of a communication
obtained in violation of the wiretap law. CJ §10-402(a)(2)-(3). The
Wiretap Act does not address video surveillance alone.[1]

  A communication intercepted in violation of the Wiretap Act,

as well as any derivative evidence, is to be excluded from evidence
in any court proceeding. CJ §10-405. In addition, a person who
intercepts a communication in violation of the Act is subject to civil
and criminal penalties. CJ §10-402(b), §10-410.[2]

  The Wiretap Act qualifies its prohibitions by specifying a

number of circumstances in which a person may lawfully intercept
a wire, oral, or electronic communication. See CJ §10-402(c). Of
particular relevance to your question are consensual interceptions
and a special traffic stop exception.

B. Use of Audio Monitoring Equipment in Police Cars

 We understand that the Montgomery County Police

Department ("the Police Department") is installing video recording
equipment in patrol cars. That equipment is also able to record
sound and thus potentially may be used to intercept oral
communications. The Police Department has developed a policy on
when an audio recording will be made in conjunction with a video
recording.

  The recording equipment consists of a small video camera, two

microphones, and a recording device similar to a VCR. The video
camera is attached to the ceiling of the car near the rear view mirror
and is linked to the recording device in the trunk of the car. One of
the microphones is inside the vehicle and is wired to the recording
device. The second wireless microphone is clipped to the officer
and sends signals to the recording device when it is activated. Audio
signals from the two microphones are recorded on separate tracks on
the videotape in the recording device. Neither microphone is
enhanced to pick up sounds beyond normal earshot.

  The video camera normally faces out from the car and thus

records activity occurring in front of the vehicle. However, it can be
swivelled from side to side and can even be turned completely
around to focus on the back seat of the car. Officers can control
both the video and audio portions of the recording equipment by
switches within the vehicle. In addition, an officer can turn the
audio portion of the recording on and off from a remote control on
the officer's belt. There is no written notice inside police vehicles
concerning video and audio recording, although the video camera
attached to the ceiling of the police car is in open view.

 The Police Department policy requires officers to turn on the

video camera and make a video recording in four circumstances:

        (1) When the officer turns on the overhead
            lights of the police car, known as a "code
            3" situation;

        (2) When the officer is in pursuit of someone;

        (3) When the officer stops another vehicle for
            a traffic violation;

        (4) When the officer transports a prisoner in
            the car.

A microphone may also be turned on in the first three situations to
record comments and oral notes of the officer in the car. The
microphone is not switched on when a prisoner is transported.
Rather, the camera is directed at the prisoner in the back seat and
only a video recording is made.

 The second wireless microphone is used in certain

circumstances when an officer leaves the car. When an officer pulls
another vehicle over for a traffic stop, the officer turns on the
wireless microphone as the officer approaches the stopped vehicle.
The officer informs the occupants of the vehicle that the encounter
is being recorded. If the driver or another occupant objects to the
recording, the officer informs that person that Maryland law permits
the recording.

  Aside from the four circumstances listed above, it is within the

officer's discretion whether to turn on the video recording
equipment. However, the Department policy requires that, before
turning on a microphone to record the audio portion of an encounter
with a citizen, the officer obtain the consent of persons to be
recorded. In fact, the officer is to obtain consent twice: once before
the microphone is turned on, and again after the microphone is
switched on so that the consent becomes part of the recording.

  Although it may be technically possible to activate a

microphone without also making an audio recording, under the
Police Department's guidelines the microphones are used only in
circumstances in which a video recording is also being made. Thus,
any sound monitored by the microphones should also be recorded on
the videotape.

                               II

                           Analysis

  We address first whether the intended use of the audio

recording equipment in conjunction with video recording under the
Police Department's policy is consistent with the Wiretap Act.
Second, we consider whether an inadvertent recording made with
that equipment would violate the Act's prohibition against the wilful
interception of oral communications.[3]

A. Intentional Audio Recording under the Policy

  Under the Police Department's procedures, as we understand

them, the audio monitoring and recording equipment ordinarily
records only the comments and oral notes of the officers inside the
police car. The Police Department's policy permits the equipment
to be used to monitor and record communications of other
individuals in only two situations: (1) during a traffic stop; and (2)
in other instances in the discretion of the officer with the consent of
the individuals to be recorded.

  It appears that the Police Department's procedures for

monitoring and recording the audio portions of police encounters
with citizens are designed to meet the criteria for lawful
interceptions outlined in the Wiretap Act.

      1.     Traffic Stops

 In its listing of lawful interceptions, the Wiretap Act explicitly

permits the interception of oral communications during a traffic stop
under certain conditions. In particular, the statute provides:

        It is lawful under this subtitle for a law
        enforcement officer in the course of the
        officer's regular duty to intercept an oral
        communication, if:

            (i) The law enforcement officer
            initially detained a vehicle for a
            traffic violation;

            (ii) The law enforcement officer is a
            party to the oral communication;

            (iii) The law enforcement officer has
            been identified as a law enforcement
            officer to the other parties to the oral
            communication prior to any
            interception;

            (iv) The law enforcement officer
            informs all other parties to the
            communication of the interception at
            the beginning of the communication;
            and

            (v) The oral interception is being
            made as part of a video tape
            recording.

CJ §10-402(c)(4). This provision was added to the statute in 1991.
Chapter 140, Laws of Maryland 1991. There is no parallel provision
in the federal statute, although an interception in these circumstances
would be permissible under the federal statute because it occurs with
the consent of one of the parties to the conversation -- the officer.
See 18 U.S.C. §2511(2)(c).

   An officer who follows the Police Department's policy in using

the equipment during a traffic stop should satisfy the criteria set
forth in CJ §10-402(c)(4). Most traffic stops are made by officers in
marked cars that clearly identify their occupants as law enforcement
officers. Because the conversation is picked up by a microphone
attached to the officer, the officer will be a party to the conversation
that is monitored and recorded. Under the Police Department policy,
the officer is to inform the driver and other occupants of the stopped
vehicle of the audio monitoring and recording.[4] Finally, the audio
recording is made in conjunction with a video recording of the
traffic stop. Thus, all of the criteria for a lawful interception under
CJ §10-402(c)(4) are met.

        2.    Consent of all Parties

 Under the State Wiretap Act, a person may intercept an oral

communication with the consent of all parties to the communication.
Specifically, the statute provides that it is lawful:

        For a person to intercept a[n] ... oral ...
        communication where the person is a party to
        the communication and where all of the
        parties to the communication have given prior
        consent to the interception....

CJ §10-402(c)(3). This exception does not apply if the
communication is intercepted for the purpose of committing a crime
or a tort. Id. In limited circumstances involving the investigation of
certain enumerated crimes,[5] the Act also permits an interception with
the consent of only one party -- a law enforcement officer or the
officer's agent. CJ §10-402(c)(2).

  The general condition that all parties to a communication

consent to its interception is more stringent than federal law. Under
the federal statute, a communication may be intercepted with the
prior consent of just one party to the communication. 18 U.S.C.
§2511(2)(c)-(d).

  In circumstances other than traffic stops in which an officer

elects to use the video and audio recording equipment, the Police
Department requires that the officer obtain the consent of the other
parties to the conversation before turning on the microphone. The
officer must also have that assent repeated on the audio recording.
This policy appears well designed to implement and document the
statutory exception for interceptions with the consent of all parties
to a conversation. Thus, an officer who follows the Police
Department's policy concerning the use of the audio equipment will
not violate the prohibition against the interception of oral
communications in CJ §10-402(a).

B. Inadvertent Interceptions

  You asked whether an officer who "inadvertently" records oral

statements by an individual without obtaining the individual's
consent would violate CJ §10-402(a). By "inadvertent recording,"
we assume that you refer to either of the following two situations:
The officer intends to make an audio recording authorized by the
Police Department's policy, but the microphone picks up statements
of an individual, such as a passerby, who has not consented to, or
been informed of, the interception. Alternatively, the recording
itself is unintentional -- i.e., the officer mistakenly turns on the
microphone without intending to do so, or an equipment failure
activates the microphone without the officer's knowledge.

  In those circumstances, an officer would not violate the

Wiretap Act because one or more key elements of a violation would
be lacking. First, depending on the particular circumstances, the
conversation may not constitute an "oral communication" under the
State Wiretap Act. In any event, an inadvertent recording would not
be a "wilful interception."

        1.   "Oral Communication"

  The Act defines an "oral communication" as "any conversation

or words spoken to or by any person in private conversation." CJ
§10-401(2)(i). The term "private conversation" is not defined in the
Wiretap Act.[6] The federal wiretap statute defines oral
communication as "any oral communication uttered by a person
exhibiting an expectation that such communication is not subject to
interception under circumstances justifying such expectation." 18
U.S.C. §2510(2). Former Chief Judge Gilbert of the Court of
Special Appeals, in an early commentary on the Maryland statute,
described the definition of the term in the State statute as
"considerably more inclusive" than the federal definition. See
Gilbert, supra, at p. 192. However, Judge Gilbert did not elaborate
on this characterization of the Maryland statute. Nor have any
reported judicial decisions explicated a distinction between the two
definitions of "oral communication."

  More recently, the courts have characterized the difference in

the wording of the two definitions as "slight" and have construed
the term in the Maryland statute to incorporate the "reasonable
expectation of privacy" standard of the federal definition. Fearnow
v. C&P Telephone Co., 104 Md. App. 1, 33, 655 A.2d 1 (1995),
aff'd, 342 Md. 363, 676 A.2d 65 (1996). The Court of Appeals has
stated that "when an oral communication is intercepted, determining
whether a violation of the Wiretap Act occurred hinges on a jury
determination that at least one of the parties had a reasonable
expectation of privacy." Fearnow, supra, 342 Md. at 376. See also
Malpas v. State, 116 Md. App. 69, 83-84, 695 A.2d 588 (1997)
(equating phrase "private conversation" with concept of reasonable
expectation of privacy); Hawes v. Carberry, 103 Md. App. 214, 220,
653 A.2d 479 (1995) (conversation is "private" within meaning of
Act if a participant has a "subjectively and objectively reasonable
expectancy of privacy"); Benford v. American Broadcasting Co., 649
F. Supp. 9, 11 (D. Md. 1986) (construing Maryland Wiretap Act).

  Statements that a person "knowingly expose[s] to the public"

are not made with a reasonable expectation of privacy and therefore
are not protected as "oral communications" under the State and
federal wiretap laws. Malpas v. State, 116 Md. App. 69, 695 A.2d
588 (1997). See also John Doe Trader Number One, 889 F.2d 240,
242-44 (7th Cir. 1990) (statements made by broker on floor of futures
exchange were "expos[ed] ... to the public" and therefore not "oral
communications" under federal statute); Holman v. Central
Arkansas Broadcasting Co., 610 F.2d 542 (8th Cir. 1979) (no
violation of federal statute to record loud complaints of municipal
judge jailed for public drunkenness as they were not made with
expectation of privacy).

  In Malpas, the defendant had used a micro-cassette recorder to

record the statements of Craigie, whose shouted imprecations to his
wife in the apartment next door were so loud that they could be
heard in Malpas' apartment. After a later altercation between
Malpas and Craigie resulted in criminal charges against Malpas,
Malpas attempted to use the recording to impeach Craigie, who was
a prosecution witness at trial. The Court of Special Appeals held
that creation and use of the tape at trial did not violate the Wiretap
Act.[7]

 The Court reasoned that Craigie did not enjoy a reasonable

expectation of privacy with respect to his shouted statements
overheard and recorded by Malpas. Accordingly, the Court
concluded, those statements did not constitute an "oral
communication" within the meaning of the Wiretap Act. 116 Md.
App. at 86. The Court based this conclusion on three observations.
First, Malpas could hear Craigie's shouting "with his unaided ear"
and did not use an amplifier or sensory enhancing device with the
tape recorder. Second, Malpas was lawfully in the place where he
overheard the conversation -- his own apartment. Finally, the
presence of someone in the adjacent apartment who would hear the
shouting could reasonably be anticipated by Craigie. The Court
summarized: "Statements in one apartment made in a tone of voice
so loud as to be audible to persons in adjacent apartments are the
functional equivalent of statements knowingly exposed to the
public." 116 Md. App. at 86.

  Thus, if an officer is recording a conversation with a citizen in

accordance with the Police Department's policy -- that is, after
obtaining the citizen's consent or during a traffic stop after
informing the occupants of the car of the recording -- and the
equipment also records statements of a passerby that would be
within the normal earshot of someone in the officer's position, such
a recording would not violate the Wiretap Act.[8]

        2.    "Wilful Interception"

 The State Wiretap Act conditions civil and criminal liability on

a showing of a "wilful interception." "The term 'wilfully' ... means
more than intentional or voluntary. It denotes either an intentional
violation or a reckless disregard of a known legal duty." Benford,
supra, 649 F. Supp. at 10; see Fearnow v. C&P Telephone Co.,
supra, 104 Md. App. at 23. In sum, the defendant must know that
what he or she is doing is illegal. Hawes, supra, 103 Md. App. at
221-22; see also Earley v. Smoot, 846 F. Supp. 451, 453 (D. Md.
1994) (construing Maryland Wiretap Act).

  Like the Maryland Wiretap Act, the federal statute originally

used the term "wilfully." However, a 1986 amendment, Pub.L. 99-
508, §101(f)(1), diluted the standard of proof under the federal
statute by substituting the term "intentionally" -- a standard that does
not require that the defendant know that the conduct is illegal. See
Earley v. Smoot, supra, 846 F. Supp. at 453.

  The Wiretap Act defines "intercept" to mean "the aural or

other acquisition of the contents of any wire, electronic, or oral
communication through the use of any electronic, mechanical, or
other device." CJ §10-401(3).[9] The federal statute contains an
identical definition. 18 U.S.C. §2510(4).

 If an officer unintentionally makes an audio recording of an

encounter with a citizen, there is no violation of CJ §10-402(a)
because the officer has not wilfully intercepted the conversation.
Indeed, if only the microphone and not the recording equipment is
activated, there may be no interception at all, as the contents of the
communication are never "acquired" by the officer.

  A Fourth Circuit decision construing the federal statute

confirms this analysis. In Sanders v. Robert Bosch Corp., 38 F.3d
736 (4th Cir. 1994), a corporation that had received bomb threats
installed equipment to monitor and record incoming calls to its
security office. After recording incoming calls for a period of time,
the company terminated the recording, although it did not remove
the equipment. However, as a result of a design defect, the
microphone on the handset of a telephone continued to pick up
ambient noise in the room where it was placed and transmit it to the
receiver. The corporation's officials were unaware of that feature
and none of the conversations that the microphone picked up was
monitored or recorded.

   The Fourth Circuit held that there was no violation of the

federal wiretap statute for two reasons. First, since no one had
listened to or recorded the conversations picked up by the
microphone, the defendant corporation had never acquired the
contents of the communications and, accordingly, there was no
"interception" under the statute. Second, the court noted that the
federal wiretap statute "requires that interceptions be intentional
before liability attaches, thereby excluding inadvertent
interceptions." 38 F.3d at 742-43 (quoting Thompson v. Dulaney,
970 F.2d 744, 748 (10th Cir. 1992)). Even if there was an
interception, it could not be deemed "intentional" as no one knew
that it was being made.

 Thus, even with a change in the standard of intent under the

federal statute from "wilful" to "intentional," an inadvertent
recording did not violate the statute. See also Carr, The Law of
Electronic Surveillance (2d ed.) §8.1(a)(1) (concluding that
inadvertent conduct is not culpable even after 1986 amendments to
federal statute). As noted above, the wilfulness standard under the
Maryland statute requires an even stronger showing of intent.

                              III

                         Conclusion

  In our opinion, an officer who follows the Police Department

policy for recording the audio portion of a videotaped encounter
with a citizen would satisfy the criteria for lawful interception of oral
communications under the State Wiretap Act. Moreover, an officer
who inadvertently makes a recording would not violate CJ §10-
402(a).

                                    J. Joseph Curran, Jr.
                                    Attorney General

                                    Robert N. McDonald
                                    Chief Counsel
                                     Opinions and Advice

Editor's Note:

 The General Assembly amended CJ §10-402(c)(4) after this

opinion was issued. Chapter 107, Laws of Maryland 2002.

[1] Ricks v. State, 312 Md. 11, 24, 537 A.2d 612 (1988). Nor is there
any similar statute governing video surveillance by police. Rather, the
permissibility of that technique is measured in a particular instance under
the Fourth Amendment of the U.S. Constitution and its parallel provision
in the Maryland Constitution, Article 26 of the Maryland Declaration of
Rights. See Ricks, supra, 312 Md. at 28.

[2] The wilful interception, use, or disclosure of a protected
communication is a felony that carries a potential sentence of 5 years
incarceration and a $10,000 fine. CJ §10-402 (b). A successful plaintiff
in a civil action may recover actual damages or liquidated damages ($100
per day or $1,000, whichever is higher), punitive damages, attorney's fees,
and costs. CJ §10-410(a).

[3] Because of the location and planned use of the microphones and
video cameras, we discuss only issues concerning the interception of "oral
communications," even if the equipment could somehow be modified to
intercept wire or electronic communications.

[4] The statute does not require that the officer obtain the consent of
all parties to the conversation during a traffic stop. Rather, the officer
need only inform them of the interception at the beginning of the
conversation. CJ §10-402(c)(4)(iv).

[5] The statute permits interceptions with one-party consent for
investigations of the following offenses:

        Murder, kidnaping, rape, a sexual offense in the
        first or second degree, child abuse, child
           pornography, ... gambling, robbery, any felony
           punishable under the "Arson and Burning"
           subheading of Article 27, bribery, extortion, ...
           dealing in controlled dangerous substances, ...
           fraudulent insurance acts, ... offenses relating to
           destructive devices..., or any conspiracy or
           solicitation to commit any of these offenses, or
           where any person has created a barricade situation
           and probable cause exists for the investigative or
           law enforcement officer to believe a hostage or
           hostages may be involved....

CJ §10-402(c)(2).

[6] By contrast, the definitions of "wire communication" and
"electronic communication" make no reference to privacy or "private"
communications. Thus, "privacy is not relevant to determining a violation
of the Wiretap Act when a wire communication has been intercepted."
Fearnow v. C & P Telephone Co., 342 Md. 363, 376-77, 676 A.2d 65
(1996).

[7] The case reached the appellate court after the circuit court held
that the tape was inadmissible, declared a mistrial, and denied Malpas'
motion to dismiss the charges on double jeopardy grounds. The
defendant then took an interlocutory appeal. 116 Md. App. at 70. When
a mistrial is declared in a criminal case over the objection of the
defendant, further prosecution of the charges violates the constitutional
prohibition against double jeopardy, unless there was a "manifest
necessity" for the mistrial. See, e.g., State v. Gorwell, 339 Md. 203, 205,
661 A.2d 718 (1995).

[8] It is also notable that many encounters between uniformed police
officers and citizens could hardly be characterized as "private
conversations." For example, any driver pulled over by a uniformed
officer in a traffic stop is acutely aware that his or her statements are being
made to a police officer and, indeed, that they may be repeated as evidence
in a courtroom. It is difficult to characterize such a conversation as
"private."
Similarly, a number of courts have concluded that, for purposes of
federal and state electronic surveillance statutes, a suspect who engages
in a conversation while seated in a police car does not have a reasonable
expectation of privacy in his or her statements. See, e.g., Kansas v.
Timley, 975 P.2d 264, (Ct.App. Kan. 1998); United States v. Clark, 22
F.3d 799 (8th Cir. 1994); United States v. McKinnon, 985 F.2d 525 (11th
Cir. 1993), cert. denied, 510 U.S. 843 (1993); United States v. Rodriquez,
998 F.2d 1011 (4th Cir. 1993) (unpublished); see also Tex. Atty. Gen. Op.
JC-0208, 2000 WL 378883 (April 12, 2000).

[9] The Maryland statute also defines the phrase "electronic,
mechanical, or other device" to mean:

        Any device or electronic communication other
        than:
             (i) any telephone or telegraph instrument,
        equipment or other facility for the transmission of
        electronic communications, or any component
        thereof, (a) furnished to the subscriber or user by
        a provider of wire or electronic communication
        service in the ordinary course of business and
        being used by the subscriber or user in the
        ordinary course of its business...; or (b) being used
        by a communications common carrier in the
        ordinary course of its business, or by an
        investigative or law enforcement officer in the
        ordinary course of his duties; or
             (ii) a hearing aid or similar device being used
        to correct subnormal hearing to not better than
        normal.

CJ §10-401(4). The federal statute has a virtually identical definition. 18
U.S.C. §2510(5).