Can an Officer Record me Without my Consent?

Montana law prohibits one party from recording a conversation by use of a hidden electronic or mechanical device that reproduces a human conversation without the knowledge of all parties to the conversation. We Montanans take our privacy very seriously, and this is an excellent example of that (along with our constitutional right to privacy). But it raises the question of whether recordings made by police officers in DUI stops are acceptable (and more importantly admissible as evidence at trial).

However, the law giveth and the law taketh away. Another statute (a lawyer word for law) exempts elected or appointed public officials or public employees when the transcription or recording is done in the performance of their official duty. The Montana Supreme Court has ruled that this exception applies to police officers (when acting in the course of their official duty). Specifically, the case of State v. Belgarde found that neither the Montana privacy statute nor the constitutional guarantee was violated by a deputee sheriff tape recording a defendant during the trip to the police station.

So while you may not have known that the highway patrol officer was videotaping you acting like a drunken idiot on the drive to jail – that movie is admissible at trial and not something a jury is likely to look kindly on. And remember, this applies to any tape of field sobriety tests as well.

As a general rule, anytime you are interacting with police it is wise to assume that whatever you do or say will be seen by a jury sometime. It’s a good rule to help keep yourself in line.

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