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If the officer continued to intercept and record once an objection was made by one of the parties to a private communication, would that action therefore subject the officer and the agency to criminal and civil liability? In determining whether a particular conversation is private, the courts look to the subjective intentions of the parties and to other factors bearing on the reasonableness of the participants’ expectations. However, law enforcement agencies should consider the potential effect of any collective bargaining agreement.
Your questions are below, along with brief versions of our answers.[ 1.Brief Answer: In order to use a recording as evidence in a criminal or civil case, the recording would be subject to the same laws and rules governing all evidence, including the requirement that the chain of custody be established to prove no tampering has occurred. Washington state courts and the Ninth Circuit have consistently held that conversations between police officers and members of the public, when the officers are performing their official duties and are known to the other speakers to be performing their official duties, are not private conversations. 129 Wn.2d at 226 (holding business transactions conducted with the public are not private, even where a transaction occurs inside a private home).Record retention schedules would also govern how long a recording must be kept. The Washington Privacy Act, RCW 9.73, provides greater protection for private conversations and communications than the United States and Washington Constitutions. Instead, the Court emphasized that every conversation must be analyzed on a case-by-case basis, considering factors like who was present and whether others were intentionally excluded from the conversation.Some express concerns that allowing officers to stop recording gives officers too much discretion and may allow them to avoid accountability. 2000), wa.gov/biennium/1999-00/Pdf/Bill Reports/House/2903. RCW 9.73.090(1)(c) requires officers using vehicle-mounted cameras to be in uniform, and it restricts the duplication and use of recordings made from these cameras. 2013), foundation.org/content/body-worn-camera (last visited Nov. Constitutional principles, including Fourth Amendment principles, and the rules of evidence would still govern admission of any recordings as evidence.In contrast, others point out that cameras may chill open communication from victims in sensitive cases involving, for example, domestic violence or sex crimes. The provision limits when a recording can be turned off.  This opinion assumes that the police officer has legally entered the private residence.In order to legally facilitate the use of body cameras attached to police uniforms, is it necessary to obtain the consent of the law enforcement officer who is a party to the intercepted conversation or is the consent of the officer obtained by virtue of the officer’s employment?
Brief Answer: The Washington Privacy Act does not require officer consent because the Washington Supreme Court has recognized that a conversation between a police officer and a member of the public that occurs in the performance of the officer’s duties is not private.
Article I, section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” This state constitutional provision generally provides greater protection for individual privacy than the Fourth Amendment to the United States Constitution. In those circumstances, a court might need to analyze the conversation first to determine whether it was private under the factors discussed above. And if the individuals were somehow unaware of the officer’s presence in the home, a court would almost certainly need to analyze the factors above to determine whether it was private. In sum, the Washington Supreme Court has held that a conversation with a police officer performing an official duty is public, and the Court’s reasoning extends to a conversation with a police officer occurring in a private home.
If an in-home conversation were private, a court would then analyze whether any of the exceptions in the Privacy Act applied. Interception of a conversation between other, non-police parties in a private home may be deemed private, depending on the circumstances.
The Privacy Act provides that video or sound recordings of conversations with arrested persons must include on the recording: (1) a statement that a recording is being made, (2) the beginning and end time of the recording, (3) a statement to the arrested person informing him of his constitutional rights. Such recordings may only be used for valid police or court activities. Finally, this opinion addresses specific legal questions.
We recognize that there may be differing opinions as a policy matter regarding when officers should be permitted or required to cease recording an interaction with a member of the public. Yet the Washington Supreme Court has read this provision to create an additional set of requirements that police officers must follow, regardless of whether the recorded conversations are private. 6, 2014) (transcript of podcast); ACLU, Chris Rickerd, 8 (Mar.  Of course, the fact that a conversation with a police officer performing his or her official duties is not private for purposes of the Privacy Act does not necessarily mean that recordings of such conversations will be admissible.
An example would be when an officer leaves a vehicle and enters a residence. While RCW 9.73.090 strictly governs the use of vehicle‑mounted police cameras, it does not restrict the use of body-mounted cameras or recorders unless they are part of a vehicle-mounted system. RCW 9.73.030(2), .040 (allowing warrant to protect national security, human life, and property from arson), .070(2) (exempting 911 calls), .090(2) (allowing warrant where probable cause exists to believe that the non-consenting party has committed, is engaged in, or is about to commit a felony). Cases to date holding that conversations with on-duty police officers are not private have all involved conversations directly with police officers.