Can you video police during a roadside stop?
This question about filming the cops - it’s all over the web. So let’s drill down into it. Can you do it legally? And: Is it a good idea?
Up front, I feel obligated to tell you that I am not a lawyer. So the comments I make are not legal advice. They are observations based upon research and conversations with various lawyers over the years.
Also, that research is Shitsville-specific. And by ‘Shitsville’ I mean New South Wales, Arse-Trailer’s most populous state. Mileage may vary in other jurisdictions. Obviously.
First up, why would you want to film the cops? I’d suggest, because they’re lying arseholes, at least potentially. And the highway patrol, here in Shitsville is the closest thing we have to full-blown Gestapo - they routinely over-step their authority and they just hope you’ll roll with it.
In a traffic stop, the cops have a lot of power - or at least, a lot of discretion. So a good place to start is: Don’t be a dick. Be respectful, quietly spoken and polite. Pass the attitude test.
Note that I did not just say, bend over and hum ‘Moon River’ while they violate you. You don’t have to do that. So let’s look at what the cops themselves say about being filmed on the job.
NSW POLICE INTERNAL POLICY ON BEING FILMED
According to Shitsville’s finest, from their NSW Police Force Media Policy >>
Download the policy here >> (You're looking for pages 41 & 42.)
"Members of the public have the right to take photographs or film police officers which are observable from a public space or from a privately owned place with the consent of the owner or occupier." - NSW Police Force Media Policy
So there’s that...
"Generally speaking, if a person takes photographs or videos Police Officers, operations or incidents from a public space, Police do not have the power to: prevent the person from taking photographs or filming, confiscate photographic or filming equipment, delete images or recordings, or request or order a person to delete images or recordings." - NSW Police Force Media Policy
But wait: there's more...
"If Police Officers try to confiscate equipment or interfere with members of the public to delete images or recordings, the officers may be liable for prosecution for assault or trespass to the person concerned." - NSW Police Force Media Policy
This is of course how TV news and current affairs procures so much of the police operational footage that makes it onto the broadcast.
More on this from Lifehacker >> and also Sydney Criminal Lawyers >>
THE LEGISLATION
Here in Shitsville (NSW), the Surveillance Devices Act 2007 regulates the use of listening devices. Specifically it’s illegal to eavesdrop electronically on, or record, private conversations. Download the Act >>
I distinctly remember when I was a host on talk radio, this woman rang on the open line during the regular technology segment, because she wanted the best smartphone to covertly record conversational admissions she hoped to illicit from her ex-husband. We pointed out that was kind of a bad idea.
However, during a traffic stop, it’s debatable whether or not you’re in a private conversation. It seems to me there’s a clear expectation that a record of what you say will be used by the cops in court to prosecute you if any admissions you make have good evidentiary value - or if they just decide to lie. (Heaven forbid.)
The Surveillance Devices Act says it’s legal to record a conversation if you’re a party to it (as you are during a traffic stop) provided it’s:
reasonably necessary for the protection of the lawful interest of that principal party [ie - you]
Or if:
the recording is not made for the purpose of communicating or publishing the conversation or a report of it to persons who are not parties to the conversation
So it seems to me that a traffic stop takes place in a public space. It seems to me there’s no presumption of privacy in any official conversation with the cops. They’re procuring evidence for official purposes.
It seems to me that, as a party to this kind of stressful interaction, you might reasonably need to protect your lawful interests, or at the very least, maintain an accurate record of what was actually said.
Of course, all this recording is not much good if all you do is make a recording of you dumping yourself right in it. That’s not going to help.
Adam Ly is an experienced criminal defence lawyer and a good bloke. I interviewed him a few months back (details below)
WHAT THE LAWYER SAYS
According to LY Lawyers' website >>
"Courts recognize that recording police activities is legal. However, with technology and laws constantly changing, some police officers have not yet been trained otherwise. They may also feel his or her authority is being challenged and react accordingly." - Ly Lawyers
Or, I guess they might be spoiled, self-entitled, double-digit IQ, brats used to throwing their weight around and getting their way. (I’m paraphrasing.)
Many police officers and citizens in Australia believe that as soon as a police officer tells you to do or not to do something that it is an order. However, police can only order citizens to do something (or not) based on the current laws in effect." - Ly Lawyers
They’re actually very good at dressing up baseless requests to look like legally binding commands. Turn that camera off!
"If you are approached by the police while recording them, you should calmly explain what you are doing and state you have a legal right to do so."
- Ly Lawyers
I interviewed Adam Ly about the law and you out there on the road a few months ago. Check out that interview here >>
TOP 10 TIPS FOR DEALING WITH THE COPS AT THE ROADSIDE
One: Try really hard not to be a dick.
Just because you’re entitled to film, you don’t have to be an outright dipshit about it. Don’t be a smartarse. Don’t ask the officer when they dropped the height, weight and/or fitness requirements to join the force. It’s really not going to help.
Instead, play it completely straight. Call him ‘officer’ and don’t swear. Ps and Qs...
Two: Be respectful, but don’t make any admissions.
Police are very good at extracting admissions, which will definitely be used against you. Don’t make any.
Do you know how fast you were going? Do you know why I stopped you? Because I was speeding? [BAH-BOW] Case closed. Go to jail. Do not collect $200. “Your worship, he told me he thought I had stopped him because he was speeding.” This could be the only evidence.
Don’t do that.
Three: The best way not to make admissions is not to answer questions.
Do you know why I’ve stopped you? Officer, I respectfully decline to answer your questions during this interview. Repeat.
You have a right to silence. There’s nothing shady about it. Normal rules of social discourse do not apply during a roadside stop. You’re not in a position to exonerate yourself. All you can do is damage your case by talking.
Are you trying to be a smartarse? Officer, I respectfully decline to answer your questions during this interview.
Four: You are not required to incriminate yourself.
If the cops find you standing over the body of the boss. If you’ve got a 12-inch French chef’s knife in your hand, if his blood is all over you, if your DNA and prints are all over the knife, if three dozen of your co-workers saw you stab him thirty-five times and the whole thing is recorded on high-definition CCVT, you don’t have to say ‘you got me - I did it’.
There’s an orgy of evidence, so it’s probably not going to help much, but you don’t have to admit it. And if you don’t have to admit it in those blood-stained circumstances, you certainly don’t have to admit it for 65 in a 60 zone. You just don’t.
Procuring the evidence that you did it: that’s his job, not yours.
Five: Don’t use your phone.
I know - it’s there. It’ll do that. It’s a perfect option, seemingly. Except, here in Shitsville it’s actually illegal to touch your phone while driving and technically you might still be driving while stopped at the roadside, and that might be a traffic offence.
Use a point and shoot camera or a GoPro - there’s no similar prohibition on touching one of those.
Six: Press record before you do anything else.
It’s a stressful situation. So easy to forget. Grab your camera, power up, hit record and prepare to say nothing with extreme politeness.
Seven: If he tells you to stop filming, politely decline to comply.
Calmly say something like: Officer, respectfully, according to your media handbook, I am entitled to film you in the course of your duty and I decline to turn the camera off.
If he tells you this is a breach of the Surveillance Devices Act: Calmly say that you’re in a public place and you are recording to protect your lawful interests as allowed under the act.
This is substantially different to saying: I don’t trust you. You’re all lying pricks. Go to buggery. At least the words are quite different. You’re playing ‘thinks and says’. Thinks: ‘Piss off idiot - this is my right.’ Says: ‘Respectfully I’m going to decline your request to stop filming.’ This game helps a lot in marriage and the workplace. Just saying.
Eight: Comply with all lawful directives.
Licence, breath test. Name. Address. All of that. Definitely comply.
Nine: Keep the camera in plain sight.
Don’t do any covert recording, and don’t hinder the officer in the conduct of his duty.
Ten: If he grabs the camera, arrests you, whatever, don’t resist.
Remain absolutely polite and respectful. However, clearly and unequivocally do not consent to any request to search of the vehicle or your person. Let the lawyers sort that one out.
‘Do you mind if I take a quick look in the boot? It’s just procedure. (That’s a trunk, in Retardistan). Absolutely not - I do not give you permission to search my car, officer.
The bottom line is: Record the traffic stop at all costs. Be tremendously polite, in inverse proportion to how you’d like to act and what you’d really like to say. This is a game - you might as well be good at it.
The more polite, reasonable and respectful you are, and the more of an arsehole he is, the better the footage is going to look, for you, in court.
Remember that the cops cannot compel you to stop filming. They’re in a box just like you and me - only sometimes, they like to think they can make the rules up on the fly. And their main weapon here is the ignorance and fear of the poor schlepp they’ve stopped. Followed closely by intimidation.
FEEDBACK LOOP (YOUR SAY)
Of course, this report on dealing with the cops at the roadside was, unsurprisingly, a nut-magnet in the wild, wild west of the comments feed on YouTube.
"John. So what your saying is that when I was driving through a school zone last week and was stopped for allegedly doing 67 k's, I should've said nothing and not apologised to the cop and recorded the officer and now request to have the matter heard at court? I think I'd rather pay the fine for doing the wrong thing and be thankful I was stopped before running over some innocent kid because I was doing some low flying through a school zone." - Cheree M
Up front, Moi Cheree, my advice to you would be: pay attention when you drive. That way, you might drive at the speed limit. How friggin’ hard is it?
Now, any time someone says: ‘So what you’re saying…’ they are setting you up. What I in fact said was that you should not answer police questions or make admissions at the roadside, and you should film your interaction.
The only one looking out for your interest at the roadside is you - you might as well do a decent job of it. But Cheree was not yet finished.
"I don't understand why you need to encourage us to do the wrong thing on our roads and then bash the cops for doing their job. Sounds like John got a ticket himself and now he's having a bit of a vent on social media. Don't worry John. Your only human mate. We all make mistakes." - Cheree M
Show me the bit where I encourage anyone to do the wrong thing. I’m a safe driving advocate. I take that very seriously. I recommend being very polite and respectful to the cops, but I acknowledge that some of them are arseholes. Especially in the NSW Highway Patrol.
The Shitsville Highway Popo is so bad that internally, within the Shitsville police more broadly, they are known as the ‘jury wreckers’. They earned this moniker because of the astoundingly bad taste they manage to leave in the mouths of so many generally law-abiding citizens.
Some of those citizens get called for jury duty, and the cops - real cops, not the revenue-collecting Highway Popo - are perhaps trying to put away some violent mother-lover for some heinous act.
And half the jury is inclined to discount the police evidence as a result of their lingering impression of the cops, forged at the roadside. The Highway Patrol fails, generally to inspire respect - it’s a much bigger problem than it sounds.
I’m not making this up - this is what actual police call the Highway Patrol internally. And I haven’t been booked for a traffic offence in more than 15 years. So, way to go speculating there, Cheree...
THE LIGHTER SIDE OF TRAFFIC STOPS
Before I let you go: A smokin’ hot blonde gets pulled over by a smokin’ hot blonde police officer.
(I know - sounds like a screenplay to one of your favourite movies, right? It’s not. But it could be. With a minor re-write and a macro lens.)
Officer blonde hottie says: Licence please.
She gets a blank stare.
What’s a driver’s licence look like? (Says smokin’ hot blonde hottie driver.)
Sergeant blonde hottie says: It’s kinda small and it’s got your picture on it.
Frantic search of the Burkin handbag. Finds makeup compact.
She flips it open. Has a look. Hands it over.
Officer blonde hottie takes a look. Says: "You’re free to go, ma’am. If I’d known you were a police officer just like me, we could have avoided all this fuss..."
