Recording Law for Police & Civil Rights in South Dakota

South Dakota makes it legal to record any conversation you take part in without telling the other person. The law says a crime only happens if you secretly record a conversation where the speaker had a reasonable expectation the words wouldn’t be overheard. State courts have ruled that when one person in the conversation consents, that expectation disappears. The rule covers in-person chats and phone calls alike. The key statute is South Dakota Codified Laws § 23A-35A-20, which makes it a Class 5 felony to intercept wire, electronic, or oral communications without consent. Courts have read this to mean one party’s consent is enough. The expectation-of-privacy gate itself applies only to in-person oral communications under South Dakota Codified Laws § 23A-35A-1(10), which defines an 'oral communication' as one uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. State v. Woods, 361 N.W.2d 620 (S.D. 1985), is the foundational case construing this language and holding that one party’s consent negates any justified expectation, so no oral communication exists for purposes of the statute once consent is given. State v. Braddock, 452 N.W.2d 785 (S.D. 1990), then extends the one-party-consent outcome to wire communications through statutory-harmony construction, expressly rejecting the argument that wire communications should require court authorization despite lacking an expectation-of-privacy element in their definition.

Recording police officers while they work in public is generally allowed under federal appeals-court rulings that apply in South Dakota. The Eighth Circuit has said officers cannot stop bystanders from simply watching—and by extension recording—traffic stops and similar encounters in public parks and streets. Still, the same court has shielded officers from liability when they stopped someone from filming inside a police-station lobby, showing the right isn’t absolute in every setting. There’s no South Dakota statute that bans recording police in public, but officers can still detain you in edge cases, like inside government buildings, where the right hasn’t been clearly established. The Eighth Circuit has not squarely held that the First Amendment protects a general right to record on-duty police in public, but has moved favorably toward recognizing it: in Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), the court denied qualified immunity to an officer who detained a bystander for merely watching (and by extension recording) a traffic stop from a public park, relying on the clearly-established right (per Walker v. City of Pine Bluff, 414 F.3d 989 (8th Cir. 2005)) to observe police-citizen encounters at a distance without interfering. By contrast, in Akins v. Knight, 872 F.3d 936 (8th Cir. 2017), the court granted qualified immunity to officers who stopped a person from filming inside a police station lobby, holding the right to record was not 'clearly established' in that specific context; the majority did not hold there is no right to record police in public. Net effect: recording on-duty officers acting in public in South Dakota is on relatively solid constitutional footing per Chestnut, but Eighth Circuit right-to-record precedent is narrower/less definitive than in circuits that have expressly adopted the right, and Akins shows qualified immunity can still shield individual officers in edge-case settings.

South Dakota’s felony wiretapping law only bans secretly capturing the audio of a conversation. It does not restrict silent video recording of what you see in public. A separate misdemeanor law, South Dakota Codified Laws § 22-21-1, makes it illegal to install a hidden camera in a private place where someone has a reasonable expectation of privacy. That law also includes drone-specific rules added in 2020 (HB 1065), making it a crime to use a drone to photograph or record someone in a private place without consent, and separately criminalizes landing a drone on another person’s land without permission. Recording a police officer with a phone’s video camera in a public street is not covered by either law.

South Dakota does not have a special rule just for someone’s own home. The state’s privacy law treats any place where a person has a reasonable expectation of privacy the same way, whether it’s a home, a private office, or another secluded area. Secretly filming someone there without their consent can be a misdemeanor. The law does not say police officers lose that expectation when they are inside a station, so filming in a lobby or hallway may carry more legal risk than filming on a sidewalk. South Dakota Codified Laws § 22-21-1 expressly limits its device-installation misdemeanor to a 'private place,' with no application to observing or recording in public places.

Recording a private conversation without consent can be a felony in South Dakota. Secretly filming someone in a private place without consent is a misdemeanor. The drone-specific additions to § 22-21-1 also create separate penalties for using a drone to record in a private place. Police officers who break the rules while on duty can face their own disciplinary actions, but those are handled separately from criminal charges against civilians.

Imagine you’re standing on a public sidewalk watching a traffic stop. You start recording with your phone’s video camera. An officer notices and tells you to stop filming. Under federal appeals-court rulings that apply in South Dakota, the officer generally can’t stop you from recording in that public space. If you keep recording, you’re not breaking South Dakota’s wiretapping law because you’re not secretly capturing audio of a private conversation. But if the officer orders you to leave and you refuse, you could be charged with trespass or disorderly conduct, not for the recording itself.

South Dakota’s statute defines an 'oral communication' as 'any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation' (S.D. Codified Laws § 23A-35A-1(10)). State v. Woods, 361 N.W.2d 620 (S.D. 1985), construes this language and holds that when one party consents, there is no justified expectation, so no 'oral communication' exists for purposes of the statute. The separate definitions of 'wire communication' (S.D. Codified Laws § 23A-35A-1(15)) and 'electronic communication' (S.D. Codified Laws § 23A-35A-1(16)) contain no expectation-of-privacy qualifier; State v. Braddock, 452 N.W.2d 785 (S.D. 1990), extends the one-party-consent outcome to wire communications through statutory-harmony construction, expressly rejecting the argument that wire communications should require court authorization.

South Dakota’s misdemeanor statute governing unauthorized recording devices in private places, South Dakota Codified Laws § 22-21-1, was amended in 2020 (HB 1065) to add drone-specific provisions. These provisions make it a crime to use a drone to photograph, record, or observe a person in a private place where that person has a reasonable expectation of privacy, and separately criminalize landing a drone on another person’s land without permission. The statute also includes exceptions for incidental business or government drone use and emergency-management workers. These drone-specific rules operate alongside the general prohibition on installing hidden recording devices in private places and apply regardless of whether the recording captures audio or is silent.