TOPEKA POLICE DEPARTMENT	Number: LB 02-02
LEGAL BULLETIN
SUBJECT: TAPING UNCONSENTING 3^RD PARTIES
AMENDS: DL02 “SURVEILLANCE EQUIPMENT PROCEDURE”; Section A
STATUTE REFERENCES:
ISSUING AUTHORITY: John Knoll, City Attorney	DATE ISSUED: 21 Feb. 2002

    I have been asked whether the following scenario violates either the Kansas Eavesdropping Act (K.S.A. 22-2514 through K.S.A. 22-2519) or the relevant provisions of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. 2511:

Officers call or bring a victim in for an interview. A 3^rd party, apparently a friend of the victim, sits in on the interview. The interview takes place at the Law Enforcement Center and is videotaped by the questioner (with his knowledge and consent), but neither the victim nor the 3^rd party is advised the interview is being recorded and neither consents to the recording. At some point, the questioner leaves the room and the victim and the 3^rd party carry on a conversation. This conversation is captured by use of video and audio recording devices, and is transmitted to the video tape room, where it is recorded. Additionally, officers in other parts of the building can monitor the images and sound emanating from the interview room. Police are interested in this conversation between the victim and the 3^rd party because they believe the victim may be fabricating her story.

ISSUE:

Does interception and recording of the portion of the conversation captured after the questioner left the room violate either of the statues mentioned above?

ANALYSIS:

Kansas Law

    Initially, it should be noted that “[n]o area of the law is more sensitive than that of electronic surveillance, since such activity intrudes into the very heart of personal privacy.” In re Olander, 213 Kan. 282, 285, 515 P.2d 1211(1973). In essence, the Kansas Eavesdropping Act prohibits any interception of a "wire, oral or electronic communication" without a court order. K.S.A. 22-2516(9)(a). Court orders can only be obtained if police are investigating serious felonies or other serious crimes the detection of which would be nearly impossible in the absence of electronic surveillance. See K.S.A. 22-2515(a)(1) through (18). Falsely reporting a crime is not one of the authorized offenses for which a wiretap can issue. K.S.A. 22‑2518 establishes a civil cause of action for damages for any person whose wire, oral, or electronic communications have been unlawfully intercepted.

    With these admonitions in mind, the question is whether the conversation is a "wire, oral or electronic communication" regulated by the act. These terms are statutorily defined, and the definitions are set forth below.

The act defines a "wire communication" as:

[A]ny aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications. Wire communication shall include any electronic storage of such communication. K.S.A. 22‑2514(1).

An "oral communication" is defined as:

[A]ny oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication. K.S.A. 22‑2514(2).

Finally, an "electronic communication" is:

[A]ny transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo‑optical system but does not include:

(a) Any wire or oral communication;

(b) any communication made through a tone‑only paging device; or

(c) any communication from a tracking device, as defined in § 3117, chapter 205 of title 18, United States Code. K.S.A. 22-2514(11).

One other definition is relevant. The act defines an "aural transfer" as: "a transfer containing the human voice at any point between and including the point of origin and the point of reception. K.S.A. 22-2514(17).

    On this particular set of facts, there was a transfer containing images (video images of the persons in the interview room) and the human voice (the audio captured on the video tape) between the point of origin (the interview room) and the point of reception (the major case room and/or the video tape room) by use of a microphone and photoelectronic or photo-optical system (the camera) using wiring present in the building. This voice and image transmission was captured on tape by a video recording device (electronic storage). Thus, it is clear that the conversation between the victim and the 3 ^rd party constitutes both a wire communication (the audio portion) and an electronic communication (the video portion). In my opinion, interception and recording of such a conversation violates the act.

    When a conversation is illegally intercepted, state law mandates that no disclosure of the conversation be made. The applicable statute states:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee or other authority of this state, or a political subdivision thereof, if the disclosure of such information would be in violation of this chapter. K.S.A. 22-2517.

    Because interception and recording of the conversation violates the act, I recommend that the contents of the tape not be disclosed to anyone and that appropriate measures be taken to prevent a recurrence of such a situation.

The Timley Case

    The conversation is clearly NOT an "oral communication" as defined by the act because there is no expectation of privacy in an interview room at a police station. In State v. Ronald E. Timley, Sr., 25 Kan.App.2d 779, 975 P.2d 264 (1998), the Kansas Court of Appeals upheld the surreptitious videotape recording of statements by an arrested individual in a patrol car. The court stated, in part, that the defendant had no reasonable expectation of privacy in the back seat of a police car. Although the court purported to decide the case under both the Fourth Amendment to the United States Constitution and K.S.A. 22‑2514 et seq., the court gave only passing reference to the statute and did not analyze its terms. In any event, Timley stands for the proposition that there is no expectation of privacy in the back seat of a police car, and the same analysis would apply to an interview room at the police station. Because there is no expectation of privacy in a police station interview room, interception, listening to, and storage of the audio portion of any conversation therein would not meet the definition of an oral communication under the act. However, in my opinion, Timley did not go far enough in its analysis of the act. As noted above, the capturing of a conversation and images and transmission of them through a wire and onto an electronic storage device meets the definition of intercepting a wire and electronic communication.

    One other feature of Timley bears mentioning. Although the defendant made much of the surreptitious videotape in that case, as the court itself pointed out:

We have reviewed the videotape which is the subject of Timley's complaints. It is of poor quality. The visual images are blurred and indistinct. The sound is obscured by background noise. The conversation is difficult to hear and more difficult to understand. In contrast, Timley and Bruce were caught red‑handed. A witness saw two black males coming out of a home carrying property. Minutes later, police responding to the call found Timley and Bruce in an alley behind the home. They were carrying the items later identified as the property stolen from the home. Timley, 25 Kan. App. 2d at 785.

    The fact that police caught the defendant red-handed may have encouraged the court to give short shrift to his statutory arguments. In view of the court's cursory analysis of the act in Timley, I would be uncomfortable in extending it to any fact situation other than the one the court was dealing with in its decision.

SIMILARITY TO FEDERAL LAW

    A good summary of the rules of interpretation of the Kansas Eavesdropping Act appears in State v. Maley, 8 Kan.App.2d 553, 662 P.2d 269 (1983), where the court stated:

The Kansas eavesdropping statutes are patterned after the electronic surveillance statutes contained in Title III of the Omnibus Crime Control and Safe Streets Act. Title III provides the minimum standard against which state or federal interceptions and their use must be judged. Federal case law in this area is generally treated as controlling authority. Eavesdropping statutes are to be strictly construed. An order authorizing surveillance by eavesdropping is a unique and specialized form of search warrant governed by K.S.A. 22‑2514 et seq., independent of our general search and seizure statutes K.S.A. 22‑2501 et seq. The validity of a wiretap order turns upon the validity of the application. [Citations omitted]. 8 Kan.App.2d at 555.

    The apparent problem with the factual scenario described above is a lack of knowledge and consent by the two participants in the conversation. Federal law allows interception of wire, oral or electronic communications where one of the parties to the conversation is aware it is being intercepted and consents to such interception. 18 U.S.C. § 2511(2)(c) and (d). See State v. Irving, 231 Kan. 258, 263, 644 P.2d 389 (1982). For example, in State v. Roudybush, 235 Kan. 834, 839, 686 P.2d 100 (1984), officers sent a wired informant into the suspect’s home to buy drugs. The officers waited outside and recorded the conversation between the informant and the suspect that was transmitted to them by the informant's bodypack. The issue was whether an electronic interception by police officers of a private conversation held within the home of a suspect, secured without judicial approval but with the cooperation and consent of a police informant who was a party to the conversation, violated the statutory proscription against eavesdropping. The court said this interception did not violate the statute because one person to that conversation, the informant, consented to the eavesdropping. 235 Kan. at 843. See also State v. Johnson, 229 Kan. 42, 45, 621 P.2d 992 (1981)(taped conversation between the defendant and his wife was made with the knowledge, consent, and cooperation of defendant's wife, a party to the conversation). In the absence of consent by one of the parties, a court order is required.

    In State v. Howard, 235 Kan. 236, 679 P.2d 197 (1984), the court construed the similar Title III and stated:

Section 2520 provides that any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall have a civil cause of action and may recover damages against any person who violates the provisions of the act. It should also be noted that specific exceptions are set forth throughout the definitional section, 18 U.S.C.A. § 2510, and throughout the balance of Title III which provide that certain types of interceptions will not be deemed unlawful. In cases where the issue of the application of Title III is involved, the standard procedure is for the court to first proceed to examine the facts in light of the definitions found at 18 U.S.C.A. § 2510. Once this examination has been made, the court then determines whether or not an improper form of interception has taken place. Howard, 235 Kan. at 241-42.

    One other case offers some support for my conclusion, State v. Calhoun, 479 So.2d 241 (Fla. Dist. Ct. App. 4^th Dist. 1985). In this case, the court ruled inadmissible a defendant's private conversation with his brother in a police interview room. Defendant was Mirandized and invoked his right to remain silent and asked for an attorney. He also asked to speak to his brother before making any statements. The investigating officers left the room, but kept the concealed video and audio recording devices going. Defendant made statements to his brother implicating him in the crimes under investigation. The court reasoned that while defendant had no reasonable expectation of privacy in a police interview room, defendant expected his conversation with his brother would be secure and private, and to allow admission of the tape would undermine the defendant's Miranda rights.

Conclusion

    Interception and recording of audio and video emanating from two non-consenting parties in interview room constitutes unlawful interception of wire and electronic communications and may subject any employee to civil liability for damages. I recommend that the police department refrain from engaging in such practices. An easy way to avoid the pitfalls of the wiretap act is to advise the person or persons being interviewed that the conversation is being taped and obtain their consent. Then, even if the interviewer leaves the room, anything said or done therein can be captured and recorded in accordance with the Kansas Eavesdropping Act and/or Title III.