110OAG040
Md. Att'y Gen.Jul 22, 2025Background
- The Maryland Wiretap Act generally prohibits willful interception of private oral communications unless an exception applies.
- The Act applies only to audio recordings of private conversations, not video-only recordings.
- In 2015, Maryland amended the Act to create a body-worn camera exception allowing police officers to record oral communications if five statutory conditions are met.
- Most police-citizen interactions (e.g., public stops, statements to uniformed officers) are not considered "private conversations" under the law.
- A recording made in violation of the Act must be suppressed in court, but courts must determine if related evidence (like officer testimony) is also inadmissible.
- The central legal issue: can an officer testify about their independent observations if a body camera recording is suppressed under the Act?
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Wiretap Act apply to body-worn cameras? | Applies to any use | Applies only to intentional, private rec. | Applies only if officer intends to record private conversation |
| Does the Act require suppression of illegal recordings? | Yes, all illegal content | Yes, but only the illegally obtained part | Must suppress illegal recording |
| Is all officer testimony "evidence derived" from illegal rec? | Yes, officer testimony tainted | Testimony based on independent memory | Officer may testify based on independent observations |
| Can an officer testify if the recording is suppressed? | No, testimony is fruit of poisoned tree | Yes, if based on own senses | Yes, if testimony is based on independent observation |
Key Cases Cited
- Deibler v. State, 365 Md. 185 (Md. 2001) (Wiretap Act applies only to aural—audio—interceptions, not video alone)
- Agnew v. State, 461 Md. 672 (Md. 2018) ("Private conversation" interpreted using Fourth Amendment expectation of privacy standard)
- Aud v. State, 72 Md. App. 508 (Md. Ct. Spec. App. 1987) (Police may testify to what they heard in a conversation, even if recording is suppressed under Wiretap Act)
- Malpas v. State, 116 Md. App. 69 (Md. Ct. Spec. App. 1997) (No reasonable expectation of privacy for loud conversations overheard through walls)