Can You Be Arrested for Filming a Police Officer in Public?

Maryland’s Wiretapping and Electronic Surveillance Act makes it illegal to intercept a "wire, oral, or electronic communication" without the consent of every party. The law defines "oral communication" as any conversation or words spoken to or by any person in private conversation. Courts then apply a two-part test to decide whether a conversation qualifies as a protected "oral communication": first, did the speaker have a subjective expectation of privacy, and second, would society recognize that expectation as reasonable? If both prongs are met, the conversation is protected and everyone’s consent is required to record it. If either prong fails, the conversation isn’t a protected "oral communication" at all, so no consent is legally required. This test applies whether the conversation happens at home, in a car, or in public, because location alone doesn’t decide the issue.

Police officers performing public duties—like a traffic stop on a public road—generally don’t have a reasonable expectation of privacy in what they say during that encounter. In 2010, a Maryland trial court ruled that a state trooper had no reasonable expectation of privacy in his statements during a public roadside traffic stop, and the charges against the person who recorded him were dismissed. That decision isn’t binding on other courts, but it reflects how Maryland courts have applied the reasonable-expectation-of-privacy test to police encounters. The Fourth Circuit, which includes Maryland, has also recognized a First Amendment right to record police officers carrying out their public duties. So, recording an officer’s statements during a public traffic stop, protest, or similar situation is usually protected speech, not a violation of Maryland’s wiretap law.

Even in a public place, a conversation can become private if the speaker takes steps to keep it private. Courts look at whether the speaker’s voice is loud enough that it would be heard by unintended listeners without any special effort, or whether the speaker has physically separated themselves from others. For example, a Maryland appeals court ruled that a third party’s loud statements made in his own apartment and audible through a shared wall to a neighbor were not a protected "oral communication" because the statements were the functional equivalent of statements knowingly exposed to the public. The takeaway: if someone is shouting in a park or on a sidewalk so that passersby can easily hear, it’s probably not a private conversation. If they’re huddling in a quiet corner or speaking softly in a restaurant booth, it likely is private.

Maryland’s law treats phone calls and electronic messages differently from in-person conversations. Wire communications—like phone calls—and electronic communications—like texts or emails—are protected per se under the statute, meaning consent of all parties is required regardless of whether a reasonable expectation of privacy would otherwise apply. That means you need everyone’s consent to record a phone call or read someone’s texts, even if the conversation is happening in a public place. Video-only recordings without audio, however, don’t fall under the wiretap law at all because the law only restricts the interception of spoken words or transmitted messages. As soon as you add audio to a video, the all-party-consent rule applies if the conversation is private.

Recording a private conversation without everyone’s consent in Maryland is a felony punishable by up to five years in prison and a $10,000 fine. There are also civil penalties: anyone whose private conversation is illegally recorded can sue for $100 per day of violation, minimum $1,000 in liquidated damages, plus punitive damages and attorney’s fees. These penalties apply whether you share the recording or just keep it to yourself. The law allows an exception if you’re a party to the conversation and get everyone’s consent, but that exception is narrow and doesn’t cover most situations.

Imagine you’re driving and see a state trooper pull someone over on the highway. You pull over too and start recording with your phone. The trooper approaches the driver’s window, speaks loudly enough for you to hear, and explains the reason for the stop. Your recording captures the trooper’s voice clearly. Under these facts, Maryland’s wiretap law likely doesn’t apply because the trooper had no reasonable expectation of privacy in his public statements during a traffic stop. Now imagine you’re in a restaurant and overhear two officers at the next table speaking softly about an ongoing investigation. You turn on your phone’s recorder and capture their conversation. Here, the officers may have a reasonable expectation of privacy because they’re speaking quietly in a public place but taking steps to keep the conversation private. Recording them without consent could violate Maryland’s wiretap law.

Maryland courts haven’t issued a definitive, binding decision that squarely approves recording police officers in every public encounter. The strongest authority is a single trial-court ruling from 2010, which isn’t binding on other judges. The Fourth Circuit’s recognition of a First Amendment right to record police is consistent with how Maryland courts handle these cases, but it doesn’t eliminate the need to analyze whether a conversation is private under state law. Other edge cases—like recording inside a private home, in a police station, or during a non-public police activity—haven’t been definitively resolved. Until Maryland’s highest court weighs in, the safest approach is to avoid recording private conversations without consent, even if you’re recording police officers.