WESTFIELD – Shaun Hitchcock had no idea he was committing a crime when he recorded a traffic stop in January, but it turned out to be the beginning of a seven-month, $3,000 nightmare for the city resident.
Hitchcock, 26, received three months probation in Westfield District Court last week when he accepted a plea bargain after being charged with illegal wiretapping.
Wiretapping?
Wiretapping is defined as: “A form of electronic eavesdropping accomplished by seizing or overhearing communications by means of a concealed recording or listening device connected to the transmission line,” according to thefreedictionary.com.
This definition doesn’t begin to explain what happened in Hitchcock’s case.
In the middle of a snowstorm at 5 a.m. on January 9, Hitchcock was pulled over for driving too fast for the road conditions.
Hitchcock said in an interview Tuesday that he had carefully switched lanes as he was driving north on N. Elm Street when he was pulled over by Westfield Police Officer Frank Soleimani.
“I didn’t look up any laws,” Hitchcock said. “I decided to record the traffic stop in case he got out of control or in case he wrote a ticket for something I didn’t do. I couldn’t afford points on my license.”
Hitchcock, who served in the United States Army for five years, said he placed his cell phone in the cupholder of his vehicle because he felt it was in his best interest to document the stop.
Soleimani gave Hitchcock a warning for speeding, but allegedly told Hitchcock, “This should be a ticket for making me get out of my cruiser during a snowstorm.”
Soleimani was not available for comment since he left the WPD in June, where he had been an officer for five years, to become an Environmental Police officer.
After Hitchcock received the warning, he told the officer that he had been recording the traffic stop.
That afternoon Hitchcock posted the video to his Facebook page, which Soleimani said was provided to police by a confidential source, according to court records.
Soleimani wrote in his statement of facts, “The defendant secretly audio recorded my conversation . . . The defendant had discretely placed his cell phone somewhere down by his side, out of plain view.”
Ten days following the traffic stop, Hitchcock received a summons charging him with an illegal wiretap, violating Massachusetts General Law c272 s99.
Here is the first part of MGL c272 s 99: “The general court finds that organized crime exists within the commonwealth and that the increasing activities of organized crime constitute a grave danger to the public welfare and safety. . . .”
Yes, this law pertains to organized crime and dates back to the 1960s, Westfield Police Capt. Hipolito Nunez said.
So how did Hitchcock break this law?
Massachusetts’s wiretapping law is considered a “two party consent” or “all party consent” law. Everyone being recorded needs to know they are being recorded.
Thirty-eight states and the District of Columbia, as well as Federal wiretap statutes permit recording a conversation without informing the other parties, according to the Reporters Commitee for Freedom of the Press website, rcfp.org.
“Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium,” according to the Digital Media Law Project, www.dmlp.org.
The key word here is “secretly.”
Carl Williams, an attorney with the American Civil Liberties Union of Massachusetts, said that when applying the term “secret,” it brings up the issue of intent. In this case, did Hitchcock intend to secretly record Soleimani?
The First Amendment protects citizens when it comes to recording police when they are performing official duties in public, Sophia Cope, an attorney with the Electronic Frontier Foundation of California, said in a phone interview Tuesday.
There are three criteria to consider, said Cope: 1) consent; 2) whether the conversation is public or private (or whether there is a reasonable expectation of privacy); and 3) whether the recording device is in plain view.
“There is nothing illegal about recording a police officer,” Nunez said, “There is no expectation of privacy. Because of the profession, we have to assume we are being recorded all the time.”
Further, in Nunez’s opinion, “If I’m doing my job and someone records me–if I don’t know, that is irrelevant.”
If someone is intentionally hiding the phone (or recording device) then that person can be charged under the Massachusetts wiretapping statute, Nunez added.
“If the phone is out but the person has not told the officer, then it depends,” said Nunez. It would be decided on a case-by-case basis.
There is tension and ambiguity when it comes to what “plain view” means, Williams said.
Cope said, “If the phone (device) is in plain view, then no, you don’t have to ask for consent.”
Both Williams and Cope referred to the “Glik” case, which was a case involving Simon Glik that went before the United States Court of Appeals for the First Circuit court in August 2011.
Glik had been arrested for using his cell phone to videotape several police officers arresting a young man on the Boston Common on October 1, 2007, according to the court decision found online.
As explained in Cope’s blog posted to the eff.org website on April 16, 2015, “the court held that Glik did not violate the Massachusetts wiretap statute because he did not make the audio recording surreptitiously – even though the officers were engaged in a public ‘conversation’ with the arrestee and no one consented to being recorded.”
“The court found that the officers were on notice: Glik held his cell phone – ‘a device commonly known to record audio’ – in ‘plain view’ of the officers,” as stated in Cope’s blog.
The safest, most legal way to record someone is to first get that person’s consent, Williams said. If consent isn’t given, then the person should at least give notice (tell the person they are recording the conversation).
If an officer tells a person that he/she cannot record the conversation, then the officer has to explain why, Nunez said.
“He/she can’t just say ‘no,'” Nunez said. “(The officer) doesn’t have to agree, but he (she) has to know.”
Hitchcock said he doesn’t regret posting the video to Facebook, even though this led to him being charged.
“Officers should always feel like they are being recorded and act accordingly,” said Hitchcock,” In the military we were taught to act professional in all cases, especially when dealing with civilians.”
Staff Writer Christine Charnosky can be reached at [email protected]
