Reasonable Expectation of Publicity

It is unlawful, in Maryland, for any person to [w]ilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any . . .oral . . . communication[.] "Oral communication" means any conversation or words spoken to or by any person in private conversation. "Intercept" means 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.

Maryland courts have subsequently characterized the difference in the wording between the State and federal definitions of “oral communication” as “slight” and have construed the phrase in the Maryland statute to incorporate the “reasonable expectation of privacy” standard applied under the federal law. Fearnow v. C & P Telephone Co., 104 Md. App. 1, 33, 655 A.2d 1 (1995), aff'd in relevant part, 342 Md. 363, 376, 676 A.2d 65 (1996); see also Maloas v. State, 116 Md. App. 69, 83-84, 695 A.2d 588 (1997); Hawes v. Carberry, 103 Md. App. 214, 220, 653 A.2d 479 (1995); Benford v. American Broadcasting Co., 649 F. Supp. 9, 11 (D. Md. 1986).

July 7, 2010 opinion of Maryland Attorney General to Delegate Samuel I. Rosenberg (the "Rosenberg Opinion") at 5 (pdf).

How could anyone possibly think that when someone confronts a total stranger in a public place, pulling a gun on him in the process, that is a "private conversation"? Isn't "revealed to an antagonistic total stranger" pretty much an opposite of "private"?

Our Asshat Lawyer of the Day, Harford County, Maryland prosecutor Joseph Cassilly (Radley Balko, Reason.com), thinks this armed guy accosting a motorcyclist in a public place . . .

. . . was engaged in private conversation, such that the motorcyclist should be prosecuted for a felony for recording his words:

The test is whether police officers can expect some of the conversations they have while on the job to remain private and not be recorded and replayed for the world to hear.

Nooo. The test is not whether officers can expect squadcar confessions to their partners or sweet nothings to their beat wives to remain private. Nor is the test whether "everything a police officer does on the job should be for public consumption." The test is whether this officer had a reasonable expectation of privacy when he told this motorcyclist to get off the motorcycle and identified himself as a state police officer.

Lots of cops don't like to be recorded doing their jobs. I get that. Lots of my clients don't like to be recorded doing their jobs either. But whether you're a cop or a . . . well, not a cop, when your "conversation" with a stranger starts with your drawing a gun on him, you can't reasonably expect that it'll be kept just between you and him.

5 Comments

  1. Once you accept the word “reasonable” as being the distinguishing factor between criminal and lawful conduct, it legitimizes Graber’s arrest and puts it in the hands of a judge or jury to decide whether Cassilly is correct in his assessment that this is unreasonable.

    If cops have a reasonable expectation of privacy in the performance of their duties, then these arrests and seizures will properly continue. Only a clear rule to the contrary will serve to protect people from arrest for recording a cop.

    1. This is probably true, and Maryland needs to change its statute, but meanwhile only a moron would think that a cop’s expectation of privacy in such circumstances was reasonable.

      1. Makes you wonder, though, why the judge didn’t toss it at arraignment. Maybe it’s something in the Harford County water?

  2. Was this cop actually on duty at the time of this incident? And, correct me if I’m wrong, but don’t most highway patrolmen or police officers keep their guns holstered unless there is some sort of serious threat to their physical safety?

  3. I had thought that an arrest or detention of a ‘suspect’ was a VERY public matter?

    Since when do we apprehend offenders in a private setting? I can only think of Gestapo agents running around in the dead of night grabbing people off the streets, or CIA Agents for that matter, and whisking them away to a black ops prison where they are subsequently beaten into confessing for a crime as being private.. that is until WikiLinks gets its hands on the documents, but I digress…

    How can public nudity laws be enforced, or noise ordinances for that matter, if anything outside of your four walls isn’t automatically Public in nature? Sometimes I get confused on things, but this item really puzzles me.

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