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Traffic stop video on YouTube sparks debate on police use of Md. wiretap laws

By Annys Shin
Washington Post Staff Writer
Wednesday, June 16, 2010; A01

It started as just another traffic stop.

In early March, Anthony Graber, a 25-year-old staff sergeant for the Maryland Air National Guard, was humming a tune while riding his two-year-old Honda motorcycle down Interstate 95, not far from his home north of Baltimore. On top of his helmet was a camera he often used to record his journeys. The camera was rolling when an unmarked gray sedan cut him off as he stopped behind several other cars along Exit 80.

From the driver's side emerged a man in a gray pullover and jeans. The man, who was wielding a gun, repeatedly yelled at Graber, ordering him to get off his bike. Only then did Maryland State Trooper Joseph D. Uhler identify himself as "state police" and holster his weapon. Graber, who'd been observed popping a wheelie while speeding, was cited for doing 80 in a 65 mph zone. Graber accepted his ticket, which he says he deserved.

(Watch the video from the incident)

A week later, on March 10, Graber posted his video of the encounter on YouTube. What followed wasn't a furor over the police officer's behavior but over Graber's use of a camera to capture the entire episode.

On April 8, Graber was awakened by six officers raiding his parents' home in Abingdon, Md., where he lived with his wife and two young children. He learned later that prosecutors had obtained a grand jury indictment alleging he had violated state wiretap laws by recording the trooper without his consent.

The case has ignited a debate over whether police are twisting a decades-old statute intended to protect people from government intrusions of privacy to, instead, keep residents from recording police activity.

Maryland's wiretap law applies only to audio recordings, so it is just the sound from Graber's video that is at issue legally. Like 11 other states, Maryland requires all parties to consent before a recording might be made if a conversation takes place where there is a "reasonable expectation of privacy." (By contrast, Virginia and the District require one party's consent to a recording.) But is there any expectation of privacy in a police stop? That's where police and civil libertarians differ.

During a 90-minute search of Graber's parents' home, police confiscated four computers, the camera, external hard drives and thumb drives. The police didn't take Graber to jail that day because he had just had gall bladder surgery.

A week later, he turned himself in. "I just wanted to do the right thing," he said in an April interview with Miami journalist Carlos Miller, who runs the blog Photography Is Not a Crime.

It was Graber's first arrest. He spent 26 hours in jail. Graber has since stopped talking publicly about the case on the advice of his attorneys. On June 1, he was arraigned in Harford County Circuit Court in Bel Air. He faces up to 16 years in prison if convicted on all charges.

The YouTube effect

Maryland's wiretap law has been around since the 1970s, before the VHS era, let alone the digital revolution, and did not anticipate the advent of video cameras attached to helmets or embedded in cellphones. Nor did the law anticipate YouTube and the ease with which such videos could be disseminated. Until now, its most famous alleged violator was Monica Lewinsky confidante Linda Tripp -- then a Columbia resident -- who taped her phone conversations with the aide about her relationship with President Bill Clinton. (The case was dismissed.)

But the decades-old wiretap law has suddenly become a fresh battleground for civil libertarians and bloggers who consider Graber's prosecution and a series of similar arrests a case of government overreach.

The frequency of such arrests has picked up with the spread of portable video cameras and the proliferation of videos showing alleged police misconduct on the Web. Miller has documented eight arrests in the past few years, including one of an Oregon man who was arrested for using his cellphone camera to tape police he says were being rough with a friend and a Chicago artist who taped his arrest for selling $1 artwork. "Most of the people getting arrested are not criminals," Miller said. "It is just really a power trip on the side of police."

The attention the Graber case is receiving has surprised Harford prosecutor Joseph I. Cassilly, who said his office has prosecuted similar cases before, including one within the past year against the passenger of a car that was stopped during a drug investigation who started taping officers with a cellphone camera. Cassilly said he didn't know the status of the case because the prosecutor handling it has been out sick.

"The question is: Is a police officer permitted to have a private conversation as part of their duty in responding to calls, or is everything a police officer does subject to being audio recorded?" Cassilly said.

Cassilly thinks officers should be able to consider their on-duty conversations to be private. Other officers share that view and have issued warnings to documentarians. Another video that surfaced on YouTube shows a Baltimore police officer at the Preakness warning a cameraman who was recording several other officers subduing a woman that such recordings are illegal.

State police spokesman Greg Shipley said that Uhler acted appropriately and that the officer never pointed his gun at Graber, putting it away as soon as he saw Graber comply with his commands.

Troopers are told to act as if they are being videorecorded, Shipley said. If they see someone videorecording them, they can ask them to stop but are to take no further action even if the cameraman continues, he said. If they think a private conversation is being illegally recorded, they are to contact the local state's attorney's office and let a prosecutor decide whether a violation occurred.

David Rocah, an attorney for the American Civil Liberties Union of Maryland who is part of Graber's defense team, said on-duty officers have no expectation of privacy while doing their job in public. If police need to talk to an informant, they can have a private conversation, he said. "But when they are public officials performing their duty for everyone to see and hear, that is not a private conversation," Roach said.

State supreme courts in Illinois, New Jersey, Pennsylvania and Washington have upheld people's right to record police officers. (Illinois has since made it illegal to record anyone without consent.)

Dashboard videocams

Complicating the issue: Maryland state troopers record traffic stops themselves, using dashboard cameras that were installed in all patrol cars as a result of a 2003 settlement with the state ACLU over racial profiling.

In an August 2000 legal opinion, the state's attorney general wrote that "many encounters between uniformed police officers and citizens could hardly be characterized as 'private conversations' " and that "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."

But Cassilly says the use of dash cameras does not negate officers' entitlement to privacy on the job. Police who use dash cameras must alert drivers that they are being taped, he said.

As Graber's case moves forward, civil libertarians are concerned about its implications in light of what happened to John McKenna, an unarmed University of Maryland student who was beaten in March by three police officers after the school's basketball victory over Duke. Police initially charged McKenna and another student with assaulting mounted police and alleged his injuries were caused by the horses. After a private investigator working for McKenna's attorney uncovered a video of the incident, the charges were dropped. The Prince George's County prosecutor and the FBI have since launched investigations.

If people who videorecord police are successfully prosecuted, even if they capture misconduct, the evidence they gathered is not admissible in court.

A judge could still dismiss the case against Graber at a hearing scheduled for October. But Rocah said it might be too late because "the message of intimidation has already been sent."

Graber told Miller that he is afraid of police now and so nervous driving that he has put his motorcycle up for sale.

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