Phreak tha Police

In early March, Anthony Graber was stopped at a traffic light by a state police officer for doing 80 in a 65 on his motorcycle (video below). The officer, in plain clothes and driving an unmarked car, pulled his and ordered Graber off the motorcycle before identifying himself as a police officer. (A second, marked car, arrived at some point behind Graber.) Graber then posted video of the incident on YouTube a week later. (Washington Post.)

Fast forward a month later, and six police officers are raiding his home, seizing his helmet camera and four computers.  Graber has been indicted by a grand jury and charged with felony wiretapping for audibly recording the police officer without his consent and faced up to 16 years in prison.

But now, a Harford County Circuit Court Judge has dismissed the charges, ruling that police have no expectation of privacy in their public, on-the-job communications. (More Washington Post.) Excellent work from Judge Emory Pitt.

Graber could also have argued implied consent, given the obvious presence of the camera, though drawing attention to the awkwardly situated device could have brought an addition charge from the fashion police.  Isn’t half the fun of riding a motorcycle that it’s really cool?  Isn’t that negated by wearing such a dorky helmet?

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11 Responses to “Phreak tha Police”

  1. Larry Says:

    I think there is a legal issue here, if the consent was obtained by fraud.

  2. John Says:

    Wouldn’t the marked police car, and potentially even the unmarked car, have been recording the stop from the dashboard camera? If the police were already being recorded by their own camera, wouldn’t that imply consent? On what basis could they object to a citizen recording the very same event the police were themselves recording?

  3. bl1y Says:

    John, I don’t know if the dashboard cameras record audio, which is what matters in Maryland.

    If they do, that still wouldn’t imply consent to be recorded by another person. First, when you decide to give consent, a large part of that consideration is going to be how much you trust the person recording. And, if that’s not legally relevant, then the second camera is not recording the same thing, it’s taken from a different angle and for a different length of time.

    But, the dashboard camera raises another issue, what if the person being stopped doesn’t consent to the recording? Has the state committed an illegal wiretap? My guess is no. No expectation of privacy while stopped by the police.

  4. Farkas Says:

    Disgraceful! The “unmarked cop” ought to be suspended for pulling his gun on a harmless cyclist. What a buffoon. The cop that authorized the raid ought to be fired. And thanks for posting this (with BL down for good it seems, I am going to keep showing up here).

  5. J-Dogged Says:

    I’d like to know what cracker-jack Kangaroo Court magistrate/judge authorized this search warrant. A 6-person search of a house for traffic violations and a potential wiretapping violation where there seems to be no “inside information” that the camera and computers used are still there? It was 10 days later – are we granting warrants on assumptions now?

    I know my crim law classes were a bunch of idealist bulldookie that gets thrown to the wayside in reality, but seriously? Isn’t there supposed to be a neutral party who reads this and says “guys, what the hell are you doing? What criminal activity is involved here?” And isn’t there an irony in the police swearing out a ridiculous warrant to bring a ridiculous charge on the basis that someone “violated their privacy?” This poor schmuck and his innocent family had their house trashed when only one of them was guilty of speeding all because some rambo mcnulty got shown to the world as the asshole that he is.

  6. bl1y Says:

    I don’t mind a warrant being issued on the presumption that a person keeps their personal possessions in their home.

    I would normally agree that a warrant shouldn’t issue, but in this case the grand jury had already indicted him, so that is a bit of a different case. And, while I would normally want to throw the book at people for this sort of thing, which is almost certainly a case of an asshole cop being pissed off at being show on video acting like a douche, the biker did violate the letter of the law. But, it would probably serve the public interest to bench slap a few of the cops involved, especially anyone who executed the warrant knowing the back story. Nothing major, just a week suspension, something to make people know there will be consequences in the future.

  7. BubbaLawTep Says:

    Consequences will never be teh same!

  8. Anon Says:

    Obviously, I agree that there is no expectation of privacy here for the cop. But I think this case could have been decided by simply saying that the recording is not a “wiretap.” If you read the wiretap statutes (state or federal), it’s clear to me that a simple audio recording is not a wiretap. Instead, it’s a recording.

  9. bl1y Says:

    Anon: Many criminal laws don’t actually name the crime in the statute. It usually just says something like “it shall be an offense to…” and we either name the law by tradition or by the title of the statute. In this case, the statute is Maryland Code of Courts and Judicial Procedings, Title 10-4, “Wiretapping and Electronic Surveillance,” hence “Wiretapping.”

    Also, the real journalists said he was charged with wiretapping, and I assume they’ve actually looked into the charges and probably got it right.

  10. Duderino Says:

    Wouldn’t walking around on a public highway with a drawn gun undermine the expecation of privacy? Wouldn’t it be reasonable to assume that people will look? If it’s reasonable for them to look, why isn’t it reasonable to memorialize what they saw through the use of a camera – not a hidden camera, mind you – but one mounted on top of a dude’s head?

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