State v. Graber: The Maryland Case That Changed How Police-Recording Prosecutions Get Enforced

In September 2010, a motorcyclist in Harford County recorded a Maryland state trooper during a traffic stop on a public highway. The case, State v. Graber, Harford Co. Cir. Ct., Crim. No. 12-K-10-000462, ended with Judge Emory Plitt dismissing wiretap felony charges against the motorcyclist. The judge ruled that the trooper had no reasonable expectation of privacy in statements made during a public roadside traffic stop, meaning the encounter did not qualify as a protected 'oral communication' under the Wiretap Act. This dismissal turned on the court's application of the Katz reasonable-expectation-of-privacy test to the facts of a public traffic stop.

Maryland's Wiretap Act, found in Courts and Judicial Proceedings §§10-401 to 10-414, generally bars recording conversations without all parties' consent. The law defines three types of protected communications: wire communications (like phone calls), oral communications (in-person speech), and electronic communications (like texts or emails). Maryland's statute defines 'oral communication' in §10-401(13)(i) as 'any conversation or words spoken to or by any person in private conversation,' with courts applying the Katz two-prong test to determine whether a given in-person conversation qualifies as a 'private conversation.' The act's prohibition and all-party consent exception appear in §10-402, which allows interception only where the recording party is part of the conversation and all parties have consented. Crucially, Maryland courts apply the REOP test to determine whether an in-person conversation is a protected 'oral communication' at all; speech made in public where no reasonable expectation of privacy exists falls outside the Wiretap Act's coverage entirely.

Graber's significance is that it applied the reasonable-expectation-of-privacy test to a police encounter in a public setting. The court found that statements made by a trooper during a public traffic stop on a highway lacked privacy protections because the trooper was performing official duties in a public space. This ruling clarified that public police encounters may not qualify as protected 'oral communications' under the Wiretap Act, depending on the circumstances. The decision aligned with guidance from Maryland's Attorney General at the time, who reached the same conclusion in a 2010 opinion letter. While Graber is not binding on other courts, it has been cited as persuasive authority and has shaped how police-recording cases are handled in Maryland.

Graber addressed a public roadside traffic stop, leaving open questions about other police encounters. The ruling does not automatically extend to conversations in less public settings, such as inside a police vehicle, a private home, or a business. Maryland courts have made clear that location alone is not dispositive; the Katz test still applies. For example, in Malpas v. State, a Maryland appeals court ruled that a third party's loud conversation in his own apartment was not a protected 'oral communication' because the speaker's raised voice made the statements audible to neighbors. This shows that even in private spaces, volume and audibility can defeat a reasonable expectation of privacy. The Wiretap Act also treats wire communications (like phone calls) differently from oral communications; wire communications are protected regardless of the setting, requiring all-party consent even for public conversations.

Federal courts have increasingly recognized a First Amendment right to record police performing public duties. In Sharpe v. Winterville Police Dep't, the Fourth Circuit ruled that livestreaming a police traffic stop is protected speech under the First Amendment. The court held that the right to record police in public is a vital check on government power and that such recordings serve the public interest. While the Fourth Circuit's decision in Sharpe did not address Maryland's Wiretap Act directly, it aligns with Graber's practical outcome by affirming that recording police in public is constitutionally protected. The Fourth Circuit also affirmed qualified immunity for the individual officers because the specific right to livestream, as opposed to record generally, was not yet 'clearly established' at the time of that incident. This federal recognition adds another layer of protection for those recording police in Maryland, even though Graber itself remains a state trial-court decision.

In practice, Graber means you can record police officers during public encounters in Maryland where the speech is made in a context lacking a reasonable expectation of privacy, without their consent. This includes traffic stops on public roads, interactions in public parks, or other clearly public spaces. However, the law is not a free pass to record in all contexts. If the encounter moves indoors, into a vehicle, or to a location where privacy could reasonably be expected, the all-party consent rule applies again. The Wiretap Act's penalties remain serious: up to five years in prison or a $10,000 fine for felony violations. While Graber provides strong persuasive support for recording in public, it is not binding precedent, and police or prosecutors may still challenge recordings in ambiguous cases. The safest approach is to record openly, avoid interfering with police duties, and consult a lawyer if you're unsure about a specific situation.

One common misunderstanding is that Graber legalizes all police recordings in Maryland. It does not. The ruling hinges on whether the speech is made in a context where a reasonable expectation of privacy exists. For example, a conversation between two officers in a police station might still qualify as a protected 'oral communication' depending on the circumstances, requiring consent. Another edge case involves volume: even in a public space, if officers speak quietly or move away from bystanders, a court might find a reasonable expectation of privacy. The Wiretap Act also treats wire communications differently; recording a phone call with an officer without consent would still violate the law. Additionally, Maryland's courts have not definitively ratified Graber, so its application in future cases is not guaranteed. These nuances mean the law is more nuanced than a simple 'you can always record police' rule.