Voice Recording Police Misconduct During Arrest

[Jaeziano]

Hypothetical situation: You and a friend are randomly stopped by the police and asked to show ID. You happen to have a voice recorder in your pocket. You have no idea why they stopped you and have bad feeling about it, so you decide to turn it on and record what is about to happen. The police end up commiting misconduct by means of assault and battery along with several other infractions. Then they accuse your friend of disorderly conduct and arrest him without reading him his rights. After checking your pockets but failing to recognize the recording device, they order you to leave the scene. After, you check the voice recording and realize that it is all on tape.

Questions:

What should you do in this situation?
Can your friend use the voice recording in court as defense to prove that he was wrongfully arrested?
Can you use the voice recording as evidence of police misconduct?
Where do you find a lawyer for this kind of situation?
If you can't find a lawyer to represent your case, what do you do?
Have there been cases similar to this one in the past? Where could you research?

[fairisfair]

it is not illegal to arrest your friend without reading him his rights.

How does one record (audio only) assault and battery?

stop watching so much t.v.

[CdwJava]

Originally Posted by Jaeziano

Hypothetical situation: You and a friend are randomly stopped by the police and asked to show ID. You happen to have a voice recorder in your pocket. You have no idea why they stopped you and have bad feeling about it, so you decide to turn it on and record what is about to happen.

Depending on the law in your state, you might be committing a crime.

The police end up commiting misconduct by means of assault and battery along with several other infractions.

I doubt an audio recording would prove that, but okay.

Then they accuse your friend of disorderly conduct and arrest him without reading him his rights. After checking your pockets but failing to recognize the recording device, they order you to leave the scene. After, you check the voice recording and realize that it is all on tape.

They don't need to read him his rights unless they intend to interrogate him after the arrest and use those statements against him.

What should you do in this situation?

Contact his family and let them know what's going on. if need be, copy a page of the Yellow Pages so he or they can speak to attorneys.

Can your friend use the voice recording in court as defense to prove that he was wrongfully arrested?

He can try, but YOU might be arrested. Plus, the audio recording may prove what was SAID, but it is highly questionable that it will prove what was DONE.

Can you use the voice recording as evidence of police misconduct?

Maybe. Maybe not. See above.

Where do you find a lawyer for this kind of situation?

The phone book or the local bar association.

If you can't find a lawyer to represent your case, what do you do?

For enough money, you can always find a lawyer - even if it is to negotiate a deal. If no one will take the matter as a civil case (lawsuit) that should tell you about the nature of the case (i.e. it's a loser).

Have there been cases similar to this one in the past? Where could you research?

Contact the local law library and do some research.

- Carl

[Jaeziano]

thanks for correcting my word choice. I had incorrect definitions in mind for those words. I thought battery was inflicting harmful physical contact like a punch or hitting someone with an object. And I thought the word assault was combined with it so represent a verbal attack that involves threathening to injure or inflict fear of injury.

To be more clear and concise...say an officer hits him in the face with an open palm. Not a slap, not a closed fist, but not a weak blow either. A hard blow to the side of the face that knocks him a feet onto the hood of the police car. Followed by a rough double teamed handcuffing, and then throwing him face down into the ground leaving him nothing to break his fall but his chest.

True it would be just audio, and you wouldn't see what happened, but you can tell the amount of force which is used from the sounds that are clearly heard when contact occurs between my friend and the car, him and the ground, and the stress in the voices of him and the officers. The microphone is of very good quality and the actions took place only feet away.

**Perhaps even more convincing, is after the officer strikes him, my friend asks "why did you hit me!?" and the officer confesses "because I told you not to touch me". I witness the whole thing and my friend did not touch him.

Besides, at the time immediately before the blow, my friend is laughing at a comment that was made, and does not by any means sound remotely like he is a threat to the guilty officer. At this point in which he is laughing and commenting on what he was laughing about, he is disupted by the hit to the face.



what can be proved with the recording is: the serious verbal threats the officers make. Two in which are made very loudly and aggressively, and clearly suggest bodily harm that would involve tremendous pain and require hospitalization.

**are threats of this magnitude enough to convict an officer of misconduct? especially when no theats or even insults are made towards them?

i didnt know that the rights did not have to be read but how about i have another question then. If during the whole time, the police do not inform you of why you were being stopped, is that illegal? Several times, we would ask questions like, why are we being stopped?, what did we do wrong?, what is the problem? not once did they answer.

someone told me i could refuse to provide ID in this situation and refuse to answer any questions asked. is this true?




if these situations are not enough to convict police of misconduct, then all i want to know is...

if these situations are exactly as i have explained, would the audio recording at least be enough to find my friend innocent in court to the charge of disorderly conduct? also, the recording contradicts what was said in the police report. isn't it illegal for cops to lie and obstruct justice?

[CdwJava]

Originally Posted by Jaeziano

And I thought the word assault was combined with it so represent a verbal attack that involves threathening to injure or inflict fear of injury.

Nope.

To be more clear and concise...say an officer hits him in the face with an open palm. Not a slap, not a closed fist, but not a weak blow either. A hard blow to the side of the face that knocks him a feet onto the hood of the police car. Followed by a rough double teamed handcuffing, and then throwing him face down into the ground leaving him nothing to break his fall but his chest.

It might be improper, or it might be perfectly justified. It depends on the totality of the circumstances.

True it would be just audio, and you wouldn't see what happened, but you can tell the amount of force which is used from the sounds that are clearly heard when contact occurs between my friend and the car, him and the ground, and the stress in the voices of him and the officers. The microphone is of very good quality and the actions took place only feet away.

And if such a recording is unlawful in your state, you could be arrested for the recording, and the recording may not be admitted. However, even if it is, an audio recording is not going to be good, solid evidence of the assault. From what you write, the officer's statement contradicts what you claim you saw, to the tape would not prove anything but what was said.

If your friend wants to sue, he should consult an attorney. If he wants to complain, then he needs to go to the officer's agency and make a personnel complaint.

**are threats of this magnitude enough to convict an officer of misconduct? especially when no theats or even insults are made towards them?

That's unknown. Many things can be said that aren't meant. It may be a policy violation that will involve nothing more than a verbal reprimand. On the other hand, if the officer has a string of problems, he might be subject to more severe discipline or termination.

If during the whole time, the police do not inform you of why you were being stopped, is that illegal?

Not likely. Your un-named state might have a law requiring such notification on a detention, but I am not familiar with any state that has such a rule.

someone told me i could refuse to provide ID in this situation and refuse to answer any questions asked. is this true?

Depends on your un-named state's laws. In my state of CA a person who is only detained need not present any proof of identification should he or she not wish to ... however, should the contact then result into an offense permitting a citation or arrest, then they would have to present ID.

if these situations are not enough to convict police of misconduct, then all i want to know is...

Proof. Saying it happened, and claiming that an audio tape demonstrates something other than what is heard does not make it proof. It might be. It might not be. Your friend needs to report the allegation to the agency. And, if he has the money, he can speak to an attorney if he wants to consider a lawsuit. However, without injury or damage, a lawsuit will likely be more expensive than it is worth.

if these situations are exactly as i have explained, would the audio recording at least be enough to find my friend innocent in court to the charge of disorderly conduct? also, the recording contradicts what was said in the police report. isn't it illegal for cops to lie and obstruct justice?

Without knowing what is in the report, there is no way to determine what might happen. Plus, as I said, the recording might not even be permitted. And before you risk liability for what MIGHT be a criminal offense for surreptitiously making the audio recording, you might consider consulting an attorney yourself.

- Carl

[tranquility]

Even in two-party consent states, I thought there was no reasonable expectation of privacy for a police officer acting under color of authority. I'm not sure as I haven't researched the case law in every state, but can someone give me an example of where it is illegal to secretely or without consent record a police officer when he is performing his duties?

Any state?

Info edit:
I'm trying to look at possibilites based on the basic wording of the laws. Possiblities of illegality:
Alaska
Conneticut
Illinois (Strictly speaking, it may depend on the intent of the person recording. An exception to the law (per the AG): "Subsection 14-3(i), however, also permits the recording of a conversation made "at the request of" a person who has reasonable suspicion to believe that another party to the conversation has committed, is committing or will commit a crime against the person or a member of the person's immediate household. That language implies that another person may participate in the recording of a conversation that could result in obtaining evidence of a crime.")
Indiana
Kentucky
Montana
Oregon

[CdwJava]

I'm not certain, either. I have heard - anecdotally - that such recording can be unlawful in some states, but these have been stories from the south or midwest, and I can't say whether they are or are not lawful.

- Carl

[tranquility]

Even though my search lead me to believe New Hampshire had a "reasonable expectation of privacy" exception, I was wrong. In the law at:
[url]http://www.gencourt.state.nh.us/rsa/html/LVIII/570-A/570-A-2.htm[/url]
there are many exceptions (For example, the police in this situation--perhaps with warning, or no depending on the subsection claimed.) REP is not one of them. The police certainly feel it is a crime. At:
[url]http://www.boston.com/news/local/new_hampshire/articles/2007/05/07/dover_man_charged_with_taping_his_dwi_arrest/[/url]
----------------------
ROCHESTER, N.H. --A 48-year-old Dover man has been charged with tape-recording his own drunken driving arrest early Monday.

Police say they saw Christopher Power sitting behind the wheel of a vehicle with its motor running just before 3 a.m.

After speaking with Power, police charged him with drunken driving, and discovered a running audio recorder on the driver's seat. In addition to drunken driving, Power was charged with wiretapping.