# 110OAG40

> Maryland Attorney General Reports · July 22, 2025

URL: https://www.frixlaw.com/law-library/cases/11105355

## Case

- **Court:** Maryland Attorney General Reports
- **Decided:** July 22, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11105355

## How later opinions describe it (automated extraction)

- concluding that a conversation at the threshold of a home was private
- recognizing that “[t]here is nothing in [the] Act, express or implied, which prohibits or in any way undertakes to regulate video surveillance” that does not capture audio
- finding that an inmate at a detention center and his girlfriend implicitly consented to have their phone call recorded when a message warned them at the beginning of the call that it “was being recorded and would be monitored” and the couple “proceeded to talk”

## Opinion text

40 [110 Op. Att’y

CRIMINAL LAW
WIRETAP AND ELECTRONIC SURVEILLANCE – POLICE
OFFICERS – EVIDENCE – WHEN BODY-WORN CAMERA
RECORDINGS VIOLATE THE MARLAND WIRETAP ACT –
WHETHER OFFICER CAN STILL TESTIFY AS TO
INDEPENDENT OBSERVATIONS
July 18, 2025

Colonel Roland L. Butler, Jr.
Superintendent, Maryland State Police

You have asked a question involving police officers’ use of
body-worn cameras and the exclusionary provision of Maryland’s
wiretap statute, which generally requires the suppression of
evidence derived from a recording that is illegal under the wiretap
statute. Specifically, you ask: If a court suppresses a recording
from a body-worn camera under the law’s exclusionary provision,
may the officer who made the recording still testify about what the
officer observed independently of the body-worn camera footage?

Before addressing this question, we first examine whether the
Maryland wiretap statute applies to police officers’ use of body-
worn cameras in the first place. As we explain below, it is our
opinion that the law applies to a police officer’s use of a body-worn
camera only when the officer purposely uses the device with the
intent to record a private conversation. Moreover, the officer
violates the wiretap statute only when the officer’s use of the body-
worn camera does not satisfy each of five conditions in a statutory
exception for the use of such devices and does not fall within any
other exceptions in the wiretap statute.

Assuming that the wiretap statute applies to a specific
instance of a police officer using a body-worn camera to record a
private conversation, and that none of the statute’s exceptions
permit the recording, a court must suppress the recording under the
statute’s exclusionary provision. But that provision does not
prohibit the officer from testifying about what the officer observed
independently.
Gen. 40] 41

I
Background

A. Body-Worn Cameras

Body-worn cameras are small recording devices that can be
attached to clothing, eyeglasses, or headwear. Jonathan Hayes &
Lars Ericson, Nat’l Inst. of Justice, U.S. Dep’t of Justice, A Primer
on Body-Worn Cameras for Law Enforcement 5-6 (Sept. 2012),
https://permanent.fdlp.gov/gpo231473/239647.pdf. Police
officers commonly wear these devices on their uniforms, attached
to a shirt pocket or a badge. Id. at 5; Marc Jonathan Blitz,
American Constitution Soc’y, Police Body-Worn Cameras:
Evidentiary Benefits and Privacy Threats 3 (May 2015). Body-
worn cameras can record both video and audio, producing footage
similar to what a cell phone camera captures. Daniel Bernard
Trimble, Body-Worn Cameras: The Implementation of Both the
Police Department’s Rollout of Cameras and the State’s Attorney’s
Office’s Processing of Data for Discovery, 47 U. Balt. L. Rev. 379,
384 (2018).

B. Maryland’s Wiretap Act

Maryland’s Wiretapping and Electronic Surveillance Act (the
“Wiretap Act” or “Act”) imposes certain restrictions on recording
audio. The Act establishes a general prohibition on “willfully
intercept[ing], endeavor[ing] to intercept, or procur[ing] any other
person to intercept or endeavor to intercept[]” some types of
communications. Md. Code Ann., Cts. & Jud. Proc. (“CJP”)
§ 10-402(a)(1). The Act then sets forth several exceptions to the
general prohibition, such as when all parties to a communication
consent to the interception.1

1
See CJP § 10-402(c)(3) (allowing “a person to intercept a wire, oral,
or electronic communication where the person is a party to the
communication and where all of the parties to the communication have
given prior consent to the interception unless the communication is
intercepted for the purpose of committing any criminal or tortious act”).
This exception, commonly called the “two-party consent provision,”
e.g., Mustafa v. State, 323 Md. 65, 70 (1991), distinguishes the Wiretap
Act from its federal counterpart and the laws in most other states, which
allow conversations to be recorded even if only one of the participants
consents to the recording, Carol M. Bast, What’s Bugging You?:
Inconsistencies and Irrationalities of the Law of Eavesdropping, 47
DePaul L. Rev. 837, 869 (1998); see also id. Appendix B (cataloging the
federal act and various state wiretapping statutes).
42 [110 Op. Att’y

The Wiretap Act generally does not apply to video-only
surveillance—that is, video recordings that do not capture audio.
See, e.g., Deibler v. State, 365 Md. 185, 200 (2001); see also 85
Opinions of the Attorney General 225, 226 (2000) (“The Wiretap
Act does not address video surveillance alone.”); Letter from
Robert N. McDonald, Chief Counsel, Opinions & Advice, to Del.
Samuel I. Rosenberg, at 2 (July 7, 2010) (“Rosenberg Letter”)
(“[V]ideo recording alone, without the capture of an audio
communication, is not regulated by the Wiretap Act.”).2 That is
because of how the statute defines the relevant terms.

More specifically, the Act concerns only the willful
interception of “wire, oral or electronic communications.” CJP
§ 10-402(a)(1). “Intercept” means “the aural or other acquisition
of the contents of any wire, electronic, or oral communication
through the use of any electronic, mechanical, or other device.”
CJP § 10-401(10). “Wire communication[s],” which include
landline telephone calls, see Fearnow v. Cheseapeake & Potomac
Tel. Co. of Maryland, 104 Md. App. 1, 34 (1995), rev’d on other
grounds, 342 Md. 363 (1996), are “aural transfer[s]” that depend
on “wire, cable, or other like connection[s],” CJP § 10-401(18).
“Electronic communications,” which include cell phone calls, see
Davis v. State, 199 Md. App. 273, 286 (2011), more broadly
encompass “transfer[s] of signs, signals, writing, images, sounds,
data, or intelligence of any nature,” but only those that use “wire,
radio, electromagnetic, photoelectronic, or photooptical
system[s],” CJP § 10-401(5).3 Finally, “‘[o]ral communication’
2
To be sure, other statutes impose restrictions on video surveillance.
See Md. Code Ann., Crim. Law § 3-901(c) (prohibiting “visual
surveillance,” defined to include surveillance by camera, “of an
individual” in “a dressing room or restroom in a retail store” “without
the consent of that individual”); id. § 3-902(c) (“A person may not with
prurient intent conduct or procure another to conduct visual surveillance
of: (1) an individual in a private place without the consent of that
individual; or (2) the private area of an individual by use of a camera
without the consent of the individual under circumstances in which a
reasonable person would believe that the private area of the individual
would not be visible to the public, regardless of whether the individual
is in a public or private place.”); id. § 3-903(c) (“A person may not place
or procure another to place a camera on real property where a private
residence is located to conduct deliberate surreptitious observation of an
individual inside the private residence.”).
3
A communication that meets the definition of “wire
communication” cannot be an “electronic communication.” CJP
§ 10-401(5)(ii).
Gen. 40] 43

means any conversation or words spoken to or by any person in
private conversation.” CJP 10-401(13)(i).4

Under these definitions, a video recording does not intercept
wire or electronic communications. See Deibler, 365 Md. at 199-
200. But it might intercept oral communications, if the recording
captures audio. For purposes of the Wiretap Act, the interception
of an oral communication contemplates “an aural interception—
hearing the conversation directly or making a recording of it that
can be listened to simultaneously or at a later time.” Id. at 200
(emphasis added). So the Act may apply to a video recording that
also captures audio. See id. at 200-201 (concluding that a device
that recorded both video and audio intercepted an oral
communication, in violation of the Wiretap Act). But “a video
recording without audio or without oral communication is not
prohibited under the wiretap statute.” Holmes v. State, 236 Md.
App. 636, 654 (2018); see also Ricks v. State, 312 Md. 11, 20
(1988) (recognizing that “[t]here is nothing in [the] Act, express or
implied, which prohibits or in any way undertakes to regulate video
surveillance” that does not capture audio).5

C. The Wiretap Act’s Body-Worn Camera Exception

By 2015, at least fifteen law enforcement agencies in
Maryland were using body-worn cameras.6 But some police
officers in the State worried that using the devices could violate the
Wiretap Act. For example, the Baltimore County Police
Department used cameras attached to stun guns that captured video
only, see Hearing on H.B. 533 Before the House Judiciary Comm.,
2015 Leg., Reg. Sess., at 1:33:21-1:33:26, 1:34:39-1:34:47 (Mar.

4
“‘Oral communication’ does not include any electronic
communication.” CJP § 10-401(13)(ii); accord CJP § 10-401(5)(ii)
(“‘Electronic communication’ does not include . . . [a]ny . . . oral
communication . . . .”).
5
But see Deibler, 365 Md. at 200 n.4 (raising, but not answering, the
question of “whether a video-only interception of a conversation may
constitute a violation of [the Wiretap Act] if, by watching or playing the
video, it would be possible, through lip-reading or some electronic
means, to identify the words spoken”).
6
See Workgroup on the Implementation & Use of Body Worn
Cameras by Law Enforcement, Final Report 4 (Dec. 2014) (noting that
fifteen agencies in Maryland were using the devices); Floor Report,
Senate Judicial Proc. Comm., H.B. 533, 2015 Leg., Reg Sess., at 3
(noting that, as of January 16, 2015, nineteen law enforcement agencies
in Maryland had purchased or begun using body-worn cameras).
44 [110 Op. Att’y

12, 2015) (statement of Major Mark Warren), but the department
decided not to use body-worn cameras—capable of recording both
video and audio—unless the General Assembly amended the
Wiretap Act, see Hearing on H.B. 533 Before the Senate Judicial
Proc. Comm., 2015 Leg., Reg. Sess., at 1:56:16-1:56:33, 2:00:21-
2:00:29, 2:15:20-2:15:22 (Apr. 7, 2015) (statements of Baltimore
County State’s Attorney Scott Shellenberger). Indeed, several law
enforcement officials raised concerns about whether the Wiretap
Act allowed police to use body-worn cameras.7
In December 2014, a workgroup studying police officers’ use
of body-worn cameras recognized this ambiguity in the law. In its
final report, the workgroup summarized that our Office, “Maryland
courts, prosecutors, and defense attorneys seem[ed] to agree that
using [body worn cameras] to record the audio and video
interaction between police and civilians on public streets and in
public places [did] not violate Maryland’s wiretap law.”
Workgroup on the Implementation & Use of Body Worn Cameras
by Law Enforcement, Final Report 10 (Dec. 2014). But the
workgroup said it was “less clear” whether officers could lawfully
use body-worn cameras in a home or other non-public space. Id.

7
See Hearing on S.B. 628 Before the Senate Judicial Proc. Comm.,
2015 Leg., Reg. Sess., at 2:03:25-2:03:32 (Feb. 26, 2015) (Prince
George’s County Sheriff Melvin High testifying that there was
“ambiguity regarding the wiretap” law’s application to body-worn
cameras); Hearing on H.B. 533 Before the House Judiciary Comm., 2015
Leg., Reg. Sess., at 2:10:52-2:11:17 (Mar. 12, 2015) (John Fitzgerald,
Chief of the Chevy Chase Village Police Department, testifying that
most police-citizen interactions likely did not fall within the scope of the
Wiretap Act but noting that some might, and encouraging lawmakers to
amend the Act); Hearing on S.B. 628 Before the Senate Judicial Proc.
Comm., 2015 Leg., Reg. Sess., at 1:54:37-1:54:55, 2:00:07-2:00:35 (Feb.
26, 2015) (Baltimore County Police Chief Jim Johnson testifying that
lawmakers should provide “clarification” that using body-worn cameras
would not violate the Wiretap Act); see also Police Executive Research
Forum, Implementing a Body-Worn Camera Program:
Recommendations and Lessons Learned 14 (2014) (asserting that “two-
party consent” laws, which include the Wiretap Act, could “create
challenges to implementing a body-worn camera program”); Marc
Jonathan Blitz, American Constitution Soc’y, Police Body-Worn
Cameras: Evidentiary Benefits and Privacy Threats 16 (May 2015)
(stating that “wiretap laws [that] require that both parties consent to
recording of audio conversations” “could conceivably make it illegal for
police in some circumstances to record interactions with citizens without
their consent”).
Gen. 40] 45

In 2015, lawmakers sought to resolve this ambiguity by
amending the Wiretap Act to include the language that now appears
in § 10-402(c)(11) of the Courts and Judicial Proceedings Article.
See Hearing on H.B. 533 Before the Senate Judicial Proc. Comm.,
2015 Leg., Reg. Sess., at 1:48:08-1:48:16 (Apr. 7, 2015) (statement
of Del. Sydnor that police officers using body-worn cameras would
be on “more firm ground” if the General Assembly amended the
Wiretap Act); Senate Floor Proceedings No. 61, 2015 Leg., Reg.
Sess., at 3:20:53-3:20:57 (Apr. 10, 2015) (statement of Sen. Zirkin
that “[t]he legality of” using body-worn cameras was “unclear . . .
without legislation”). This provision authorizes “a law
enforcement officer in the course of the officer’s regular duty to
intercept an oral communication” if the officer satisfies five
conditions:

1. The law enforcement officer is in uniform
or prominently displaying the officer’s badge
or other insignia;
2. The law enforcement officer is making
reasonable efforts to conform to standards in
accordance with § 3-511 of the Public Safety
Article for the use of body-worn digital
recording devices or electronic control
devices capable of recording video and oral
communications[8]
3. The law enforcement officer is a party to
the oral communication;
4. Law enforcement notifies, as soon as is
practicable, the individual that the individual
is being recorded, unless it is unsafe,
impractical, or impossible to do so; and
5. The oral interception is being made as part
of a videotape or digital recording.
CJP § 10-402(c)(11)(ii).9

8
Section 3-511 of the Public Safety Article required the Maryland
Police Training and Standards Commission, by January 1, 2016, to
develop and publish a policy for the use of body-worn cameras by police.
9
On October 1, 2025, this provision will apply not only to “law
enforcement officers” but also to correctional officers. See 2025 Md.
Laws, ch. 608.
46 [110 Op. Att’y

This body-worn camera provision is one of eleven exceptions
to the Wiretap Act’s general prohibition against the interception of
wire, electronic, or oral communications. See CJP § 10-402(c).
Other exceptions allow, for example, police officers to videorecord
traffic stops, id. (c)(4), and to intercept communications to provide
evidence of certain crimes, such as murder and rape, id. (c)(2). To
be clear, however, the existence of an exception authorizing
officers to use body-worn cameras does not mean that the statute
applies every time an officer uses such a device. Section
10-402(c)(11) merely carves out an exception, when the Act
applies, to shield police officers from criminal and civil liability if
they use body-worn cameras consistent with five enumerated
conditions.

D. The Act’s Exclusionary Provision

When the interception of a communication violates the
Wiretap Act—because it involves the willful interception of a wire,
electronic, or oral communication that is not covered by any of the
Act’s exceptions—the Act makes it unlawful to willfully disclose
or use “the contents” of the communication, “knowing or having
reason to know that the information was obtained . . . in violation
of [the Act].” CJP § 10-402(a)(2) & (3). The Act also prohibits
the use, in court proceedings, of evidence derived from an unlawful
interception. This exclusionary provision states that:

[W]henever any wire, oral, or electronic
communication has been intercepted, no part
of the contents of the communication and no
evidence derived therefrom may be received
in evidence in any trial, hearing, or other
proceeding in or before any court, grand jury,
department, officer, agency, regulatory body,
legislative committee, or other authority of
this State, or a political subdivision thereof if
the disclosure of that information would be in
violation of [the Wiretap Act].

CJP § 10-405(a).

II
Analysis

Your question is: When a court applies the Wiretap Act’s
exclusionary provision to suppress a recording made by a police
officer’s body-worn camera, may the officer who made the
Gen. 40] 47

recording still testify about what the officer observed
independently of the body-worn camera footage?

Before addressing this question, we examine the premise—
that is, whether the Wiretap Act applies in the first place when a
police officer uses a body-worn camera. Our Office has long said
that “the vast majority of police interactions with citizens that
would be captured by a body camera worn by an officer” are
“outside of the scope of” the Wiretap Act. Letter from Jeremy M.
McCoy, Assistant Attorney General, to Sen. Bobby A. Zirkin, at 1
(Mar. 9. 2015). We thus consider, as a preliminary matter, when
the Act applies to a police officer’s use of a body-worn camera.

A. The Wiretap Act’s Applicability to Police Officers’ Use of
Body-Worn Cameras

1. “Oral Communication”

As already noted, see supra Part I.B, the Act applies to the
interception of wire, electronic, or oral communications. “The
typical encounter between a citizen and police officer does not
involve a wire or electronic communication.” Rosenberg Letter at
4; see also Deibler, 365 Md. at 199-200 (noting that video
surveillance does not involve the interception of wire or electronic
communications). Thus, whether the Act applies to a police
officer’s use of a body-worn camera “turn[s] on whether a
recording of the audio portion of such an encounter constitutes the
interception of an ‘oral communication’ protected by the Act.”
Rosenberg Letter at 4.

The Act defines “oral communication” to mean “any
conversation or words spoken to or by any person in private
conversation.” CJP § 10-401(13)(i). Although the statute does not
define “private conversation,” the Supreme Court of Maryland has
“consistently interpreted the word ‘private’ to be consistent with
Fourth Amendment jurisprudence.” Agnew v. State, 461 Md. 672,
685 (2018).10 Under “the two-pronged [Fourth Amendment]
inquiry applicable to search and seizure cases,” an exchange is a
“private conversation” if a participant has a “reasonable
expectation of privacy”—that is, the “person has exhibited an
actual (subjective) expectation of privacy, and . . . that . . .

10
The Fourth Amendment to the United States Constitution
establishes “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” U.S.
Const., Amend. IV.
48 [110 Op. Att’y

expectation [is] one that society is prepared to recognize as
‘reasonable.’” Id. & n.5 (quoting Katz v. United States, 389 U.S.
347, 361 (1967) (Harlan, J., concurring)).
“A person’s reasonable expectation of privacy is a matter to
be considered on a case-by-case basis, taking into consideration its
unique facts and circumstances.” Benford v. American Broad. Co.,
649 F. Supp. 9, 11 (D. Md. 1986) (internal quotation marks
omitted) (discussing the Wiretap Act). Courts have considered
such factors as the volume of a conversation, the proximity of other
individuals who might overhear the conversation, whether the
speakers have taken affirmative steps to shield their privacy, and
the location of the conversation. E.g., Kee v. City of Rowlett, 247
F.3d 206, 213-15 (5th Cir. 2001).

On the few occasions that Maryland courts have considered
the privacy of a conversation under the Wiretap Act, they have
indicated that a person may have a greater expectation of privacy
in a discussion at their home, away from others who could overhear
the conversation. See Hawes v. Carberry, 103 Md. App. 214, 217-
20 (1995) (concluding that a conversation at the threshold of a
home was private), abrogated on other grounds by Deibler v. State,
365 Md. 185 (2001); see also Malpas v. State, 116 Md. App. 69,
84 (1997) (recognizing “that ‘the very fact that a person is in his
own home raises a reasonable inference that he intends to have
privacy’” (quoting United States v. Taborda, 635 F.2d 131, 138 (2d
Cir. 1980))). Thus, when a married couple spoke to a stranger at
the threshold of the couple’s home, the Appellate Court of
Maryland concluded that the couple had a reasonable expectation
that the conversation was private. Hawes, 103 Md. App. at 217-
20. The court noted that, when the stranger knocked on the door,
the husband answered and stood at the threshold of the home,
“[w]ith the front door ajar.” Id. at 218. His wife stood inside the
house, “closely behind her husband,” and the stranger stood only
about one to one-and-a-half feet away from the husband, just
outside the home. Id. The stranger introduced himself and advised
the couple that he had obtained an out-of-state money judgment
against the husband. Id. The conversation took place in the
evening, when it was dark outside, and the married couple could
see no one else in the vicinity. Id. Unbeknownst to the couple, the
stranger secretly taped the conversation. Id. These facts, the court
concluded, were sufficient to show that the couple “had both a
subjectively and objectively reasonable expectancy of privacy”
and, thus, the encounter “was a private conversation within the
meaning of the Act.” Id. at 220.
Gen. 40] 49

However, “[w]hat a person knowingly exposes to the public,
even in his own home or office,” is not protected under the Wiretap
Act. Malpas, 116 Md. App. at 84 (quoting Katz, 389 U.S. at 351).
Thus, when a man in his apartment shouted during a telephone
conversation “loud enough to be heard through the walls” into the
adjoining apartment, the Appellate Court concluded that “he had
no reasonable expectation that the content of his conversation was
private.” Id. at 76, 83-84. The court also found that his neighbor
in the adjacent apartment, who recorded the shouting on a micro-
cassette recorder, did not illegally intercept “words spoken to or by
any person in private conversation.” Id. at 83-84. The court
emphasized that the neighbor was entitled to be in his own
apartment, the man shouting could have reasonably anticipated that
someone would be there, and the neighbor who made the recording
“needed only his unaided ear to decipher what [the other man] was
shouting.” Id. at 86. Similarly, as to conversations in public places,
individuals generally enjoy a lower expectation of privacy. See,
e.g., Letter from Jeremy M. McCoy, Assistant Attorney General,
to Del. Samuel I. Rosenberg, at 5 (Jan. 14, 2015) (“Certainly, an
interaction between an officer and a citizen taking place in a public
setting, such as a park or during a traffic stop on the street, would
likely be deemed less reasonably private than the same interaction
occurring on private property.”). Thus, communications are less
likely to qualify as “private conversations” when they occur in places
like bank lobbies,11 public buses,12 meetings open to the public,13 or
11
See Letter from Kathryn M. Rowe, Assistant Attorney General, to Del.
Christopher T. Adams, at 2 (Jan. 13, 2017) (“Adams Letter”) (“[I]n most
circumstances, a bank is a public place in which a person has no reasonable
expectation of privacy in statements made in the hearing of others” (citing
United States v. Wells, 739 F.3d 511, 518 (10th Cir. 2014))).
12
See Letter from Dan Friedman, Counsel to the General Assembly,
to Del. Frank M. Conaway, Jr., at 2 (Dec. 13, 2012) (“[I]t is well settled
that one has a diminished expectation of privacy in a vehicle, particularly
a vehicle used for public transportation.”).
13
See Letter from Kathryn M. Rowe, Assistant Attorney General, to
Sen. Karen Lewis Young, at 1 (June 20, 2023) (“[A] person has no
reasonable expectation of privacy in statements made in a [homeowners
association] meeting that is open to the public.”); Letter from Kathryn
M. Rowe, Assistant Attorney General, to Sen. Richard S. Madaleno, Jr.,
at 2 (May 12, 2009) (“[I]t appears that a meeting where anyone who
wishes to attend is welcome, or where minutes are taken that will be
available to people who did not attend, or where special care is not taken
to limit the meeting to those who are unlikely to talk to others about what
happened, would not be a place where speakers would have a ‘reasonable
expectation of privacy’ that would bring them within the protection of
the Wiretap Act”).
50 [110 Op. Att’y

on the front porches of homes with clearly visible doorbell
cameras.14

Even in public places, however, individuals may have a
reasonable expectation of privacy when they take steps to keep
others from overhearing their conversation—for example, by
lowering their voices or by moving to a less crowded area. See
Adams Letter at 2 (recognizing that “a person may well have a
reasonable expectation of privacy in some private conversations in
banks, such as those with a teller, and quiet conversations with
family members or others”); see also Kee, 247 F.3d at 214 (listing
“affirmative actions taken by the speakers to shield their privacy”
as a factor to consider in determining whether a person has a
reasonable expectation of privacy in a conversation); Wisconsin
State Senate v. City of Green Bay, 719 F. Supp. 3d 869, 878-82
(E.D. Wis. 2024) (concluding that individuals had plausibly alleged
a reasonable expectation of privacy in their conversations in the
hallways of a city hall when they alleged that they “conducted their
conversation at a low volume and away from others”).

2. Scenarios in Which Police Officers Use Body-Worn
Cameras

Police officers use body-worn cameras to record all sorts of
citizen interactions, such as traffic stops, encounters with citizens
at crime scenes, interviews in private residences, and the execution
of search warrants and arrest warrants.15

14
See Letter from Shaunee L. Harrison, Assistant Attorney General,
to Sen. Justin D. Ready, at 2 (May 5, 2022) (“[T]hose who are on a
person’s property where a Ring Video Doorbell camera exist[s] cannot
have a reasonable expectation of privacy in a conversation had outside,
in the public, for anyone to hear,” given “[s]ociety’s overall recognition
and knowledge of Ring Video Doorbell cameras” and the fact that “most
if not all Ring Video Doorbell cameras are visible to the person that it is
recording.”).
15
See State v. Smith, 265 Md. App. 91, 96-97 (2025) (involving a
police officer using a body-worn camera during a traffic stop); Sequeira
v. State, 250 Md. App. 161, 171 (2021) (involving a police officer using
a body-worn camera at a crime scene); State v. Smith, 487 Md. 635, 646
(2024) (involving police officers using body-worn cameras while
conducting an interview in a home); Clark v. State, 246 Md. App. 123,
128 (2020) (involving police officers using body-worn cameras while
executing a search warrant), aff’d, 473 Md. 607 (2021); Harrod v. State,
261 Md. App. 499, 511 (2024) (involving a police officer using a body-
worn camera while trying to execute an arrest warrant).
Gen. 40] 51

Many of these “encounters between uniformed police officers
and citizens could hardly be characterized as ‘private
conversations.’” 85 Opinions of the Attorney General 225, 234 n.8
(2000). For example, conversations during traffic stops are
unlikely to be private, because citizens are “acutely aware that
[their] statements are being made to a police officer and, indeed,
that they may be repeated as evidence in a courtroom.” Id.16
Likewise, several courts have concluded that “a suspect who
engages in a conversation while seated in a police car does not have
a reasonable expectation of privacy in his or her statements.” Id.
(citing Kansas v. Timley, 975 P.2d 264 (Kan. Ct. App. 1998);
United States v. Clark, 22 F.3d 799 (8th Cir. 1994); United States
v. McKinnon, 985 F.2d 525 (11th Cir. 1993); United States v.
Rodriguez, 998 F.2d 1011 (4th Cir. 1993) (unpublished)); see also
International Ass’n of Chiefs of Police, Concepts & Issues Paper:
Body-Worn Cameras 5 (July 2019) (“When an individual is in
custody, whether in a patrol car, interrogation room, or lockup, for
example, there is generally no reasonable expectation of privacy,
unless the suspect is speaking in confidence with an attorney,
clergyman, or other individual with privileged communications.”).

But police officers’ body-worn cameras may also “record
details from inside people’s homes or other private areas.” Marc
Jonathan Blitz, American Constitution Soc’y Police Body-Worn
Cameras: Evidentiary Benefits and Privacy Threats 1 (May 2015).
It is “[l]ess clear . . . whether an individual may have a reasonable
expectation of privacy in a communication with a law enforcement
officer in a non-public place, such as in a suspect’s or witness’s
home, or whether an officer’s body camera may lawfully intercept
a communication between two or more third parties in a public or
private setting.” Letter from Jeremy M. McCoy, Assistant
Attorney General, to Del. Samuel I. Rosenberg, at 4 (Jan. 14, 2015).

Because the reasonableness of any expectation of privacy
depends on the facts of a particular situation, see Benford, 649 F.
Supp. at 11, it is difficult to draw bright-line rules about when an

16
Accord State v. Clayton, 11 Wash. App. 2d 172, 179 (2019)
(“Conversations with uniformed, on-duty law enforcement officers are
typically not private conversations” because “[p]eople understand that
information they provide to officers conducting an investigation is going
to turn up in written police reports and may be reported in court along
with the observations made by the officers.”); City & Borough of Juneau
v. Quinto, 684 P.2d 127, 129 (Alaska 1984) (concluding that a driver had
no reasonable expectation of privacy during a traffic stop when the
officer was “in full uniform” and “it should have been clear . . . that [the
officer] was performing his official duties”).
52 [110 Op. Att’y

officer’s use of a body-worn camera will intercept a private
conversation that qualifies as an “oral communication” under the
Wiretap Act. But we can offer some general guidance.
Conversations that take place in public, where others may overhear,
are less likely to be considered private and, thus, subject to the Act.
See, e.g., Letter from Dan Friedman, Counsel to the General
Assembly, to Del. Frank M. Conaway, Jr., at 2 (Dec. 13, 2012). So,
too, are conversations with officers in uniform taking statements as
part of their official duties, see 85 Opinions of the Attorney General
at 234 n.8—unless an officer does something to foster an
expectation of privacy.17 And while conversations at a person’s
home generally entail a greater expectation of privacy, see, e.g.,
Hawes, 103 Md. App. at 217-20, they may not be private if the
conversations are audible outside the home, see, e.g., Malpas, 116
Md. App. at 86, or involve police officers conducting interviews as
part of their official duties, see, e.g., State v. Clayton, 11 Wash.
App. 2d 172, 178-79 (2019) (asserting that “public transactions do
not become private conversations merely because they take place
in the home,” and concluding that conversations in an apartment
were not private when part of a police investigation into a report of
a gun being fired); see also Letter from Jeremy M. McCoy,
Assistant Attorney General, to Del. Samuel I. Rosenberg, at 4 (Jan.
14, 2015) (noting that the reasonableness of any expectation of
privacy in a non-public place “may depend on . . . whether the
officer has legal justification to be present in the location and to
interact with the individual”).

In sum, then, the Wiretap Act applies only if a police officer’s
body-worn camera captures an “oral communication.” See CJP
§ 10-402(a) (prohibiting the willful interception of wire, electronic,
and oral communications); Deibler, 365 Md. at 199-200 (noting
that only oral communications are susceptible to interception by
video surveillance). And oral communications encompass only
those spoken in private conversation. See, e.g., Agnew, 461 Md. at
685. Thus, the Act applies to a police officer’s use of a body-worn
camera only when the device captures a private conversation.

3. Willfulness

The existence of a private conversation is not the end of the
analysis. Even if an encounter between a police officer and civilian
involves a private conversation and, thus, an “oral communication”
17
See, e.g., Davis v. State, 121 So. 3d 462, 485-87 (Fla. 2013)
(discussing cases in which police officers fostered an expectation of
privacy in conversations that took place in police interrogation rooms,
where individuals usually would have no expectation of privacy).
Gen. 40] 53

under the Wiretap Act, the statute prohibits only willful
interceptions. See CJP § 10-402(a). An interception is willful if
done intentionally or purposely. Deibler, 365 Md. at 199. The
person intercepting the communication need not know that the
action “is unlawful—that it is prohibited by the statute,” id. at 188,
nor must the person have a “bad motive,” Holmes v. State, 236 Md.
App. 636, 649 (2018). Rather, the person need only intend to
intercept a communication protected by the Act. See Deibler, 365
Md. at 199 (noting that, when a man “placed [a] recording device,
with an audio attachment, into . . . [a] bathroom deliberately and
intentionally,” the pertinent question was “whether . . . he intended
to intercept an oral communication,” i.e., a private conversation).

The Act thus does not apply to “interceptions arising from
inadvertence or simple negligence.” Id. For example, we have
recognized that a police officer may inadvertently record an oral
communication if the officer “mistakenly turns on the microphone
without intending to do so, or an equipment failure activates the
microphone without the officer’s knowledge.” 85 Opinions of the
Attorney General at 232. An officer also would not run afoul of
the Act if the officer intentionally activated a body-worn camera
but did not intend, in doing so, to record a private conversation.
See Boston v. State, 235 Md. App. 134, 146-50 (2017) (finding that
a jail willfully intercepted an inmate’s phone conversation with his
girlfriend but did not willfully intercept a later portion of the call,
when the girlfriend added a third party, as there was no evidence
that the jail was aware that the third party would be added to the
call). In any event, “[i]f an officer unintentionally makes an audio
recording of an encounter with a citizen,” we have said that “there
is no violation of [the Act] because the officer has not willfully
intercepted the conversation.” 85 Opinions of the Attorney General
at 235-36 (first emphasis added).

For a police officer’s use of a body-worn camera to be subject
to the Act, then, the camera must record a private conversation, and
the officer must intend to use the camera and intend to capture that
private conversation. Only if both factors are present does the
Wiretap Act apply to a police officer’s use of a body-worn camera.

4. Exceptions to the General Prohibition on Willfully
Intercepting Private Conversations

Before leaving the topic of the Act’s applicability to a police
officer’s use of a body-worn camera, we offer one further
observation. Even when the Act applies—because an officer has
intentionally recorded a private conversation and, thus, willfully
54 [110 Op. Att’y

intercepted an “oral communication”—the officer has not
necessarily violated the Wiretap Act. This is because the officer’s
actions may fall within one of the Act’s eleven exceptions. We
highlight two: First is the body-worn camera exception, which
allows the officer to intercept an oral communication if the officer
satisfies the five conditions in § 10-402(c)(11). Second is the so-
called “two-party consent” provision, found in § 10-402(c)(3). See
supra n.1 and accompanying text.

Under the consent exception, a person may lawfully intercept
an oral communication “where the person is a party to the
communication and where all of the parties to the communication
have given prior consent to the interception.” CJP § 10-402(c)(3).18
Thus, even if an officer fails to fully comply with the body-worn
camera exception because, for example, the officer is not in
uniform or prominently displaying a badge or other insignia, CJP
§ 10-402(c)(11)(ii)(1), or the officer has failed to make reasonable
efforts to conform to State standards on the use of body-worn
cameras, CJP § 10-402(c)(11)(ii)(2), the officer’s use of the camera
might not violate the Act if the other participants to the
communication have consented to the recording, CJP
§ 10-402(c)(3).

Consent under the Wiretap Act may be express or implied.
Petric v. State, 66 Md. App. 470, 472 (1986); State v. Maddox, 69
Md. App. 296, 301 (1986). The Appellate Court has said that
individuals may “tacitly consent” to a recording if they are aware
of the recording device and continue to speak. Holmes, 236 Md.
App. at 654 (contemplating a scenario in which “children are likely
to be aware of” a recording of a birthday party and “fairly may be
understood to tacitly consent to it”); see also Boston, 235 Md. App.
at 146-47 (finding that an inmate at a detention center and his
girlfriend implicitly consented to have their phone call recorded
when a message warned them at the beginning of the call that it
“was being recorded and would be monitored” and the couple
“proceeded to talk”); Letter from Natalie R. Bilbrough, Assistant
Attorney General, to Sen. Bill Ferguson, at 5 (Sept. 12, 2024) (“If
an individual freely continues an oral communication while being
recorded with their knowledge, arguably they have given implied
consent.”).

18
Because the exception requires “consent by all parties,” Perry v.
State, 357 Md. 37, 61 (1999), and because a communication may involve
more than two parties, the exception may require the consent of more
than two people, notwithstanding the fact that courts commonly refer to
this as the “two-party consent” provision, see supra n.1.
Gen. 40] 55

There is thus a possibility that, under some circumstances, a
citizen will be found to have impliedly consented to a body-camera
recording. At least some models of body-worn cameras emit a
sound or have a light that blinks when the camera begins
recording,19 though some models marketed to law enforcement
officers have a “stealth mode” which disables such indicators.20
Whether a person is likely to know that a police officer is recording
and to implicitly consent to that recording will of course depend on
the facts of a particular situation. But if a person consents to the
recording, implicitly or explicitly, the officer does not violate the
Wiretap Act even if the officer has willfully recorded an oral
communication without satisfying each of the conditions in the
Act’s body-worn camera exception.

5. Summary

Although the Wiretap Act includes an exception for police
officers’ use of body-worn cameras, the Act does not apply every
time a police officer uses such a device. The Act applies only when
a police officer purposely intercepts an “oral communication,” that
is, words spoken in private conversation. Furthermore, the officer
violates the Act only if the recording does not comport with the five
conditions of the body-worn camera exception, or with any other
of the Act’s exceptions, including the consent exception.

B. Whether an Officer May Still Testify if a Court Suppresses
a Body-Worn Camera Recording

Assuming that the Wiretap Act applies to a specific instance
of a police officer using a body-worn camera, and that none of the
statute’s eleven exceptions permit the recording, we return to your
question: If a court suppresses a recording from the body-worn
camera under the Act’s exclusionary provision, may the officer

19
See Axon, Operate Your Camera – AB4, https://my.axon.com/s/article
/Operate-your-camera-AB4?language=en_US (describing camera that
“emits two short tones” when it starts recording) (last visited July 15, 2025);
Axis Communications, Axis W100 Body Worn Camera – User Manual,
https://help.axis.com/en-us/axis-w100-body-worn-camera#ThisCanBe
ConfiguredInAXISBodyWornMa-E0F0315E (“The camera vibrates,
beeps and the front recording indicator turns on when the recording starts”)
(last visited July 15, 2025).
20
See Transcend, Body Cameras: DrivePro Body 70,
https://id.transcend-info.com/product/body-camera/drivepro-body-70
(describing a “[s]tealth mode” that “[d]isables the [camera’s] light
indicators, buzzer, and vibrator”) (last visited July 15, 2025).
56 [110 Op. Att’y

who made the recording still testify about what the officer observed
independently of the body-worn camera footage? The
exclusionary provision states, in pertinent part, that “[w]henever
any . . . oral . . . communication has been intercepted, no part of the
contents of the communication and no evidence derived therefrom
may be received in evidence . . . if the disclosure of that information
would be in violation of [the Wiretap Act].” CJP § 10-405(a).

We note initially that this provision contemplates the
suppression of “the contents of the [oral] communication.”
Because a body-worn camera can record both video and audio, a
court might rule that only the audio portion of a recording is
inadmissible under the Act. See J.S. v. L.S., No. 1375, Sept. Term,
2023, 2024 WL 4661050, at *7 (Md. App. Ct. Nov. 4, 2024)
(unreported) (holding that a trial court “properly addressed the
implications of the Maryland Wiretap Act” when it advised a party
to “block out the sound” and “effectively admit[ed] [a] [v]ideo . . .
without the audio portion”). Regardless, your question gets to a
different concern—that is, if a court rules that a video recording (or
at least the audio portion) is inadmissible, would an officer’s trial
testimony also be inadmissible as “evidence derived therefrom”?
In deciding what qualifies, for purposes of the Act’s
exclusionary provision, as evidence derived from a communication
that was unlawfully intercepted, the Maryland Supreme Court has
looked to the constitutional “fruit of the poisonous tree” doctrine,
Miles v. State, 365 Md. 488, 520 (2001), which is “the usual
remedy applied when police officers violate the Fourth
Amendment” to the United States Constitution, Elliott v. State, 417
Md. 413, 435 (2010). This doctrine allows for the suppression of
evidence that is “later discovered,” Segura v. United States, 468
U.S. 796, 804 (1984), as “the product of illegal governmental
activity,” United States v. Crews, 445 U.S. 463, 471 (1980); accord
Wong Sun v. United States, 371 U.S. 471, 488 (1963) (identifying
the test as “whether, granting establishment of the primary
illegality, the evidence to which instant objection is made has been
come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint”
(quoting John MacArthur Maguire, Evidence of Guilt 221 (1959))).
For evidence to derive from an illegal interception, then, “there
must be a ‘cause-and-effect’ relationship or nexus” between the
interception and the evidence at issue. Miles, 365 Md. at 520.21

21
The Miles Court also held that the attenuation doctrine applies to
the Act’s exclusionary provision. See Miles, 365 Md. at 520-21. Under
Gen. 40] 57

Consistent with this standard, the Appellate Court has held
that a police officer may testify about a conversation that the officer
had with someone the officer secretly recorded, even if the
recording of that conversation is inadmissible as a violation of the
Wiretap Act. In one case, for example, a police officer secretly
recorded a conversation with a man he suspected of tax fraud, Aud
v. State, 72 Md. App. 508, 518 (1987), but that crime is not among
those for which the Wiretap Act authorizes a police officer to
surreptitiously record a conversation, see CJP § 10-402(c)(2).
Thus, when the State later charged the man with tax evasion, the
recording was inadmissible at trial under the Act’s exclusionary
provision. Aud, 72 Md. App. at 520. Nonetheless, because the
officer had heard the defendant’s “braggadocio concerning income
tax evasion,” the Appellate Court held that the officer was “free to
testify from memory as to the content of those incriminating
statements.” Id. The court concluded:

[T]he fact that, while he was hearing [the
defendant’s] inculpatory utterances, the
[officer] was contemporaneously illegally
recording the conversation [did] not bar
admission of the [officer’s] testimony
concerning his auditory reception of the
conversation even though it [did] preclude the
admission of the recording of that
communication.

Id.

In support of its conclusion, the Appellate Court cited a
number of judicial opinions from outside Maryland. See Aud, 72
Md. App. at 520. One of those opinions addressed an Illinois
statute that, like the Wiretap Act, contemplated the suppression of
unlawful recordings of conversations and “evidence derived
therefrom.” People v. Gervasi, 89 Ill. 2d 522, 527 (1982) (quoting
Ill. Rev. Stat. 1977, ch. 38, par. 108A-9). The Illinois Supreme
Court held that, where telephone conversations were unlawfully
monitored and transcribed, police officers who participated in the
conversations could still testify about what was said, even if the

this doctrine, fruits of the poisonous tree are “admissible when the
connection between the unconstitutional police conduct and the evidence
is remote or has been interrupted by some intervening circumstance, so
that ‘the interest protected by the constitutional guarantee that has been
violated would not be served by suppression of the evidence obtained.’”
Utah v. Strieff, 579 U.S. 232, 238 (2016) (quoting Hudson v. Michigan,
547 U.S. 586, 593 (2006)).
58 [110 Op. Att’y

transcripts themselves were inadmissible. Id. at 531. The court
reasoned that, because “[t]he officers were the participants in the
conversations and were not the eavesdroppers,” their “knowledge
of and . . . testimony concerning the contents of the phone
conversations . . . were completely independent of the illegal
eavesdropping.” Id. at 530.

Similarly, the Supreme Court of Wisconsin held that a police
officer who participated in a conversation could testify about it,
even if the officer had illegally recorded the conversation and the
recording was inadmissible. State v. Smith, 72 Wis. 2d 711, 714
(1976). “[I]t can hardly be said,” the court reasoned, “that the
testimony of the [officer] was a fruit of the illegal [recording]
device,” because “his testimony [was] independent of its use and
would [have] be[en] the same even if the device were not present
or had mechanically failed.” Id.

Although Aud (and the opinions it cited) did not involve body-
worn cameras, the same reasoning should apply to the testimony of
an officer who used such a device in violation of the Wiretap Act.
Because the Act’s exclusionary provision operates like the fruit of
the poisonous tree doctrine, see Miles, 365 Md. at 520, it excludes
only “evidence obtained from or as a consequence of lawless
official acts, not evidence obtained from an independent source.”
Costello v. United States, 365 U.S. 265, 280 (1961) (emphasis
added) (discussing the fruit of the poisonous tree doctrine). If an
officer hears a conversation because the officer is a participant or
witnesses the conversation in person, the officer gains personal
knowledge of that conversation through a source independent of
the camera or the recording it produces: the officer’s own senses.
Thus, even if the Wiretap Act’s exclusionary provision calls for the
suppression of a body-worn camera’s footage (or at least the audio
portion of that footage), the provision does not prohibit the officer
from testifying about what the officer observed independently, with
the officer’s own senses.22

22
We assume for purposes of our analysis that the officer would be
testifying solely based on what the officer independently observed and
would not be using the audio recording to refresh the officer’s
recollection about what was said. We thus offer no opinion as to whether
the officer could use the suppressed recording (or a police report that was
written using the recording) to refresh the officer’s recollection before
testifying. Although an attorney generally has a “large amount of
freedom . . . when choosing an object with which a witness’s recollection
can be refreshed,” Germain v. State, 363 Md. 511, 533 (2001), the
Wiretap Act makes it “unlawful for any person to . . . [w]illfully use . . .
Gen. 40] 59

III
Conclusion

The Wiretap Act applies to a police officer’s use of a body-
worn camera only when the officer purposely uses the device with
the intent to record a private conversation. Moreover, such use
violates the Act only when the officer fails to satisfy each of five
conditions in the Act’s body-worn camera exception and the
recording does not fall within any other exceptions in the wiretap
statute. If a court suppresses a recording as a violation of the Act,
the statute’s exclusionary provision does not prohibit the officer
from testifying about what the officer observed independently of
the body-worn camera, using the officer’s own senses.

Anthony G. Brown
Attorney General of Maryland

Rachel A. Simmonsen
Assistant Attorney General

Patrick B. Hughes
Chief Counsel, Opinions and Advice

the contents of any . . . oral . . . communication, knowing or having
reason to know that the information was obtained through the
interception of a[n] . . . oral . . . communication in violation of” the Act,
CJP § 10-402(a)(3). Maryland’s appellate courts have not addressed
whether this statutory language precludes the use of an illegally
intercepted communication to refresh an officer’s testimony. We note,
however, that using the video only (with no audio) to refresh an officer’s
recollection would almost certainly not involve the use of an oral
communication intercepted in violation of the Act. Ultimately, when a
court suppresses a body-worn camera recording, the admissibility of
other evidence—for example, the officer’s testimony or a police report
that the officer wrote after reviewing the camera footage—will depend
on whether that other evidence “has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable”—for
example, observations using the officer’s own senses—“to be purged of
the primary taint.” Wong Sun, 371 U.S. at 488.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11105355. Public record. Not legal advice.