Maryland Attorney General Opinion 110OAG40

40 [110 Op. Att’y

CRIMINAL LAW

WIRETAP AND ELECTRONIC SURVEILLANCE – POLICE

OFFICERS – EVIDENCE – WHEN BODY-WORN CAMERA

RECORDINGS VIOLATE THE MARYLAND 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.

12, 2015) (statement of Major Mark Warren), but the department

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

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 . . .

expectation [is] one that society is prepared to recognize as

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

‘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

who made the recording still testify about what the officer observed

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

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

this doctrine, fruits of the poisonous tree are “admissible when the

connection between the unconstitutional police conduct and the evidence

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

transcripts themselves were inadmissible. Id. at 531. The court

reasoned that, because “[t]he officers were the participants in the

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

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 . . .

the contents of any . . . oral . . . communication, knowing or having

reason to know that the information was obtained through the

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

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.