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Taping was legal, defense attorneys in wiretap case say

The Patriot News | June 14, 2007

Related: Man Faces 7 Year Sentence Under "Wiretapping Law" For Filming Police

Cumberland County District Attorney David Freed said he will review all evidence before deciding whether to prosecute an 18-year-old Carlisle man for taping a police officer during a traffic stop.

But two defense attorneys versed in wiretapping cases said Brian D. Kelly shouldn't even have been charged.

The state Supreme Court has ruled that taping police in such public situations is legal, they said.

Freed said the evidence he'll study will include not only police recordings of the May 24 incident, but the audio and video Kelly shot before Carlisle police arrested him on a felony wiretapping charge.

"Once the evidence is reviewed, we'll be in a better position to speak about it," Freed said yesterday.

Kelly is charged under a state law that forbids the recording of oral communications without consent. That count carries a penalty of up to 7 years in prison.

"When people interact with the police, they ought to be able to record that to show a judge and a jury what happened," Camp Hill lawyer Dennis Boyle said.

The key, said Simon Grill, a Reading attorney, is that police can't expect privacy while performing their public duties.

"If it's a public interaction, I think the police have a tough row to hoe" to secure a wiretapping conviction, Grill said.

Dozens of phone calls and e-mails The Patriot-News received since Kelly's story appeared in Monday's editions have been overwhelmingly critical of his arrest.

Police said Kelly was riding in a pickup truck that was pulled over for traffic violations and was arrested after obeying an officer's orders to turn off his camera and hand it over.

Kelly said he spent 26 hours in county prison until his mother posted her house as security for his $2,500 bail.

Freed said that, in general use, the wiretap law is more a curb on the police than a hindrance to the public. The law requires court approvals before police can set up wiretaps to monitor suspected criminal activity, he noted

Still, he said, the law is "so broad" it could be interpreted as barring recording of anyone's conversation without consent.

Wiretapping cases his office handles more usually involve people locked in bitter romantic or business disputes who are trying to secretly record another party doing something wrong, he said.

Grill and Boyle said case law is firmly on Kelly's side.

Boyle cited a 1998 state Supreme Court decision that voided a civil lawsuit filed by a York County police officer who accused his chief of violating the wiretapping law.

The court ruled that Officer James Agnew Jr. had no grounds to sue Hellam Twp. Police Chief Michael Dupler for secretly using an intercom to listen to officers' conversations in the squad room.

Agnew had no "justifiable expectation of privacy" in such a setting, the court found, noting that other officers could overhear what was said.

The court also cited an earlier ruling that voided wiretapping charges against a corrections officer who secretly tape-recorded a state trooper interrogating him about alleged wrongdoing while another person was present.

"Pennsylvania is a state that says all [recordings of conversations] require prior consent. But you have to have the expectation of privacy first," Grill said. "There's no expectation of privacy with a police officer."

Boyle, who has offered to help Kelly in his legal battle, said citing the Agnew ruling is usually enough to convince prosecutors to drop wiretap charges in such cases.

"I'd like to clarify this so no other people are arrested like this," Boyle said.

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