Do I Have the Right to Record a Police Officer?
Most states do give citizens the right to record police officers, but not all of them. In New Mexico, you not only have the right but because New Mexico uses the single party consent rule, you do not even have to ask the officer.
Do not assume that because this rule is in place you can record an officer in all situations. There will be instances that doing so could result in an arrest and seizure of the property.
Exceptions to the Rules for Single Party Consent
As stated, you cannot always record law enforcement and be in the right. There is a key difference between taking photographs and videos; and taking audio recordings. Some states have been able to discard recordings that contain audio, indicating that they violate wiretapping laws. One reason for this is that wiretapping is illegal without a court order, and it is meant to protect a person’s privacy. The big issue when interacting with law enforcement is that you may be taking a recording to preserve your rights, prove police brutality, or hold officers accountable for their actions; therefore, where do your rights end and theirs begin?
Single Party Consent Gives You the Right to Use Audio and Video Recordings
Luckily, New Mexico is not one of those states that will bar you from using audio recordings in your video, and the single party consent rule still applies. Therefore, you as a single party can consent to the recording and do so on a device.
What about an Officer’s Reasonable Belief That They Have a Right to Privacy?
One question that has been brought up in the past is whether an officer has a right to privacy from being recorded. However, no court has held that an officer has a right to privacy, especially when they are conducting their duties in the public eye as it is. Therefore, there is no reasonable way to show an expectation of privacy.
A Few Rules to Consider when Recording Law Enforcement
Single party consent rules can become fuzzy, especially in a criminal case. Therefore, if you are going to record an officer, especially during your encounter with him or her, you may want to consider the following:
1. Always Know the Law
Never assume you are safe to record anyone, including law enforcement, without knowing the law. While there is single party consent in New Mexico, you cannot invade a person’s privacy. Therefore, you could not go to an officer’s home and record them while they are off duty. Instead, you are now breaching their right to privacy, and your recording is no longer legal.
2. Know That Officers Can Still Confiscate the Recording
While you might be legally correct to record that officer, do not assume that they would not harass you or try to remove the recording and the device from your possession. Just know that it is unlikely they will be able to charge you with a crime officially, but that does not mean they will not threaten to do so.
It is best to contact an attorney at this point and not speak to the police after they have taken possession of the device.
3. Do Not Be Secretive about It
While you can record with a single party’s consent, that does not mean you should do so in secrecy. Make it clear to the officer that you will be recording this interaction. This can protect you from any defenses that the party was not informed they were being recorded.
If you want to limit any legal repercussions, be as transparent as possible. Do not be afraid to tell that officer he or she is being recorded – if anything, it may change how they treat you under the watchful eye of video footage.
4. Do Not Be Rude about It
Officers may be caught off guard when someone starts recording them, but that does not mean they have the right to bully you. However, being caught by surprise, they may confront you, ask you what you are doing, and make you think you are in the wrong.
Be calm, stay polite, and let the officer know that you are not trying to interfere with their investigation or process, but that you are exercising your right to record the altercation. No matter what, do not become obstructive. While the video recording could not result in an arrest, obstructing an investigation or an officer trying to interview a suspect is an arrestable offense.
5. Prepare for an Arrest, but Do Not Speak to the Officers – Call an Attorney
Regardless, prepare for an arrest. Just like any arrest, you are under no obligation to speak to law enforcement. Instead, exercise your right to have an attorney present, and do not provide a statement of any kind.
Arrested for Recording Law Enforcement? Contact a Defense Attorney, Right Away
If you or a loved one was arrested for recording law enforcement, you still have options. Not only were you most likely not breaking the law, but officers have arrested you and applied any charge necessary to justify their unlawful arrest. Hiring a criminal defense attorney, right away, ensures that your rights are protected, and that law enforcement does not bully you into confessing to something you did not do.
Contact the team at New Mexico Criminal Law Offices today and let us help you with your defense. Whether your phone was confiscated or you have been arrested for obstructing justice, we have helped countless defendants just like you stand up to law enforcement.
Call to schedule a free case evaluation or ask us more online about our criminal defense services.