Anthony Graber was enjoying his motorcycle ride, maybe a little too much, when he sped past a marked police car at approximately 80 mph. He also scooted past an unmarked state police vehicle driven by Trooper Joseph David Uhler, who finally caught up to Graber’s bike at an off ramp where he’d stopped for the traffic in front of him.

The trooper pulled his police car in front of Graber and hopped out with gun in hand. He ordered the driver off the bike. He gave the command a couple of times before holstering his weapon and identifying himself as a Maryland State Police (MSP) officer. However, the officer’s badge was clearly displayed on his belt. Graber complied. Unfortunately for him, that’s not all he did.

In fact, speeding was the least of Graber’s troubles that day. You see, he’d decided to attach a camera to his helmet and videotape himself while driving rather recklessly on interstate 95, a major east coast highway.

Graber’s helmet-cam. Photography Is Not A Crime image

Of course, there’s absolutely nothing wrong with videotaping your own foolishness, but Graber left the film rolling during the traffic stop. Again, there’s nothing illegal about VIDEOtaping anyone in a public place. However, Graber’s recorder also captured the audio during the stop, which in some states is an illegal act. And the Maryland State Police felt that Graber had crossed the line, especially after he posted the video on YouTube.

Wiretapping laws are normally pretty clear. In most areas you simply cannot record a private conversation without the consent of both parties (I’ve indicated the word private and will address why in a moment).

As a result of the audio recording the MSP obtained a search warrant and served it on Graber’s home. The officers seized Graber’s computers and Graber actually spent 26 hours in jail. He’s now awaiting trial for wiretapping charges, a situation that could result in a 16 year prison sentence. All because he recorded his own traffic stop and probably wasn’t aware of the law. No excuse, but…

Graber’s argument will most certainly be that the recording was not of a private conversation. I, too, have my doubts that a police officer’s arrest (a traffic stop is essentially an arrest) of a lawbreaker is a private event. I just can’t see where a police officer has a reasonable expectation of privacy when engaged in questioning, arresting, or even talking to people while on public property, including city, county, and state roadways, sidewalks, open businesses, right of ways and/or easements. etc. That’s what police stations, police cars, and interview rooms are for.

So, I can’t see the wiretap charge sticking. It’s stretching the law to the edge of its limit. But we’ll see how it goes, and it should be interesting. The outcome could also be a standard-setter.

What do you think? Good arrest, or a violation of Graber’s constitutional rights?

  1. Bob Mueller
    Bob Mueller says:

    Lee,

    Radley Balko over at Reason.com has some good analysis of this case: http://reason.com/archives/2010/08/09/police-officers-dont-check-the

    IMO, the officer was out of line in a couple of ways. He came out leading with his weapon, and his first words were about the bike, instead of “State Police!” He should have waited for the uniformed officer who was less than 30 seconds away (there’s a long video that shows the uniform arriving). I saw no cause to draw his weapon, really. Badge should have been in the off hand, and he should have been yelling “State Police,” not holding his gun out. You can’t see his badge until about 10 seconds into it, and I guarantee Graber didn’t see much but OMG THERE’S A GUN POINTING AT ME! 🙂

    I was under the impression this was a private car. It’s certainly unmarked, with no flashing lights. Honestly, if I had been in the same situation, I’d have drawn on the officer. He cut me off aggressively, and lunged out of the car with a gun. I’d be thinking road rage. With no way out to the front, I’m essentially pinned, and facing a gun. Bad tactics, in a huge way. I’d have dumped the bike as quickly as I could, and drawn my CCW.

    I’m not excusing Graber’s riding by any stretch. Neither is Graber, by the way. But the crap about this being an illegal wiretap is just that: crap. The Maryland AG is not on the cop’s side on this one; he says “it’s unlikely that most interactions with police could be considered private.”

    PS: we talked about this over at Global Affairs. There was a difference of opinion between me (and ex-cop) and some other ex-cops. http://www.globalaffairs.org/forum/index.php/topic/61611-overzealous-cop/

  2. Mark Anderson
    Mark Anderson says:

    Gotta wonder at the definition of private when the conversation took place in the middle of a highway with traffic around. :/

  3. Lee Lofland
    Lee Lofland says:

    Required – Actually, the law was broken at the scene of the traffic stop, but it wasn’t discovered (you’re right) until the video began showing up everywhere. I am curious, though, as to why the trooper didn’t notice the Inspector Gadget-type camera mount on top of the helmet.

    Anyway, most crimes aren’t solved “on the spot.” The offense has to come to the attention of law enforcement before they can open an investigation. I agree, however, that vindictiveness should never be a reason, or excuse, for an arrest. Not ever.

  4. Required
    Required says:

    Unless I’m mistaken, the “legality” wasn’t an issue until three days after the encounter — once the video hit the ‘net at full speed and the policeman halfway came across like an out-of-control fool.

    Face it, vindictiveness is not very becoming on Law Enforcement; especially in a time when people are increasingly skeptical of officers’ behavior.

  5. Lee Lofland
    Lee Lofland says:

    Hi Rita – Glad to “see” you again. Haven’t heard from you in long time.

    The wiretap laws have been in place for a long, long time. So this is nothing new. And video is not a problem. Neither is audio as long as one of the parties are aware of the taping (reporter interviews, etc.). The problem in the states with this much more narrow rule, like Maryland, is that BOTH parties must be aware of the audio portion being recorded. And, I believe I’m correct in saying that even patrol officers in those states must tell traffic offenders that they’re recording the conversations, if their vehicles are equipped to do so. Can anyone out there verify that for us?

    Anyway, the question in this case is whether or not the officer had a reasonable expectation of privacy. I don’t believe that to be true. But, that’s only my opinion.

  6. Rita L. Smith
    Rita L. Smith says:

    I agree that taping in public places should not be illegal. This could set a bad precedent if the guy is convicted. Will reporters be allowed to tape in public places, how about all those video cameras the public uses frequently?

  7. Lee Lofland
    Lee Lofland says:

    Same here, Dave. That’s how we were able to “wire” informants during drug deals and other criminal investigations. I also had similar success with wiring an informant in a murder for hire case.

  8. Dave Swords
    Dave Swords says:

    That may be a good arrest under Maryland law, but taping what takes place in a public place should not be illegal, in my opinion. The officer, nor anyone else, has any reasonable expectation of privacy in that situation. And sound goes along with video.

    Of course, I am in a state (Ohio) where, as long as one party knows a tape is rolling, it’s not wiretapping. In other words, if you and I are talking on the phone, and I am taping the conversation, that is legal and admissible in court.

    Comes in real handy in police investigations when you have an informant willing to make a few phone calls.