An Illinois man was arrested on felony eavesdropping charges after informing police he was recording them in his own home over the weekend.
New Lenox police claim Daniel Murphy made this announcement while “surreptitiously recording” them, which is legal jargon for secretly recording
Nevertheless, the arrest of the 25-year-old man raises legal questions about the state’s new and improved eavesdropping law, which replaced the previous Draconian law that was ruled unconstitutional in 2014 after numerous citizens were arrested for recording police in the line of duty.
Not much different than how Murphy was arrested.
The questions are:
Do police have an expectation of privacy in the home of a person they are investigating?
Can a person be surreptitiously recording while publicly announcing he is recording?
Did Illinois legislators surreptitiously amend the new eavesdropping law to provide more protections to citizens recording police in the line of duty?
According to local news reports, police had responded to Murphy’s New Lenox home to investigate a “domestic disturbance.”
“While handling the domestic, Murphy informed the officers that he was surreptitiously recording the officers,” [__police told Patch.__](http://patch.com/illinois/joliet/eavesdropper-arrested-cops-0)
Neither the Patch article or the [__WJOL News__](http://www.wjol.com/2016/05/10/new-lenox-man-charged-with-secretly-recording-police/) goes into much detail about the incident and no other media has reported on the arrest yet.
All we know is that he was also charged with simple assault and felony eavesdropping on Sunday.
And on Monday, he was charged with felony aggravated battery to a peace officer and misdemeanor false report to a public safety agency, according to WJOL, which said it does not know if the latter charges are related to the former charges.
We have reached out to Murphy on Facebook for comment but he has not yet responded, so perhaps he is still in jail.
Now let’s take a look at the new eavesdropping law, which went into effect in January 2015 under much controversy and confusion.
We tried to [__clear up some of the confusion here__](http://photographyisnotacrime.com/2014/12/illinois-eavesdropping-explained/), even though we acknowledged it was vaguely written, considering (or maybe because) how much taxpayers paid to defend the old law.
The new law did not even specify that citizens were now legally allowed to record cops, which was the whole point of [__ACLU vs. Alvarez,__](http://www.aclu-il.org/aclu-v-alvarez22/) the lawsuit where Cook County State Attorney [__Anita Alvarez fought tooth and nail__](http://photographyisnotacrime.com/2012/11/chicagos-state-attorney-doing-all-she-can-to-keep-draconian-state-eavesdropping-law-alive/) to keep it illegal to record cops.
She not only lost that costly battle but ended up losing the election last March.
The vagueness of the bill was done on purpose, according to the [__Chicago Reader.__](http://www.chicagoreader.com/chicago/illinois-eavesdropping-law-warrantless-surveillance-aclu/Content?oid=16244806)
> In the era of Ferguson and “I can’t breathe,” can Illinois citizens now record police officers in action? The ACLU says yes: the new law “respects” an appellate court ruling that cops on duty have “no reasonable expectation of privacy in their conversations in public places.” You won’t find that language in the law itself, however.
> State representative Elaine Nekritz, who sponsored the bill in the house, says that’s no accident. We made a decision “not to specifically state that citizens can record cops,” Nekritz says. “I thought if we tried to describe every instance in which you either were or were not committing eavesdropping, we would run into more trouble than we’ve created by having this more general standard. We just can’t write every circumstance in which someone has a reasonable expectation of privacy.” Like the definition of guilt beyond a reasonable doubt, she says, “we know it when we see it.”
Fortunately, an Illinois legislator named Elgie R. Sims, Jr. [__added a paragraph to the law__](http://www.ilga.gov/legislation/99/SB/09900SB1304ham001.htm), which went into effect in June 2015, stating the following:
> Nothing in this Article shall prohibit any individual, not a law enforcement officer, from recording a law enforcement officer in the performance of his or her duties in a public place or in circumstances in which the officer has no reasonable expectation of privacy. However, an officer may take reasonable action to maintain safety and control, secure crime scenes and accident sites, protect the integrity and confidentiality of investigations, and protect the public safety and order.
Sims slipped the passage into a larger police reform bill [__addressing police body cameras__](http://www.chicagolawbulletin.com/Archives/2015/06/01/Police-Body-Cameras-06-01-15.aspx) that he and a state senator named Kwame Y. Raoul sponsored, which also states:
> No officer may hinder or prohibit any person, not a law enforcement officer, from recording a law enforcement officer in the performance of his or her duties in a public place or when the officer has no reasonable expectation of privacy. The law enforcement agency’s written policy shall indicate the potential criminal penalties, as well as any departmental discipline, which may result from unlawful confiscation or destruction of the recording medium of a person who is not a law enforcement officer. However, an officer may take reasonable action to maintain safety and control, secure crime scenes and accident sites, protect the integrity and confidentiality of investigations, and protect the public safety and order.
So let’s get back to the questions.
**Do police have an expectation of privacy in the home of a person they are investigating?**
Although a person’s home is not public, police have no expectation of privacy from the residents of that home when they are on duty and investigating a potential crime, unless one of them decides to use the restroom and shuts the door behind them to take care of personal business.
**Can a person be surreptitiously recording while publicly announcing he is recording?**
Like the Massachusetts wiretapping law, the Illinois eavesdropping law makes it clear that citizens are not allowed to surreptitiously record others, even if they have no expectation of privacy, which is not the case in other all-party consent states, which only make it a crime if you secretly record somebody who has an expectation of privacy.
And this provision also applies to police officers wearing body cameras, who are required to inform citizens who have an expectation of privacy that they are being recorded.
However, the law states that officers must record proof of this warning, which means the cameras need to be turned on before they inform citizens that they are being recorded.
> The officer must provide notice of recording to any person if the person has a reasonable expectation of privacy and proof of notice must be evident in the recording. If exigent circumstances exist which prevent the officer from providing notice, notice must be provided as soon as practicable.
Police will no doubt argue that Murphy was interfering with the “integrity and confidentiality” of an investigation.
But considering he is the one being accused of creating a domestic disturbance, he should have a Constitutional right to record police in his own home if that could be the determining factor whether he is innocent or guilty.
**Did Illinois legislators surreptitiously amend the new eavesdropping law to provide more protections to citizens recording police in the line of duty?**
The amendment that citizens can record police was overshadowed by the police reform bill, which mostly addressed body cameras.
According to the [__Chicago Daily Law Review:__](http://www.chicagolawbulletin.com/Archives/2015/06/01/Police-Body-Cameras-06-01-15.aspx)
> Lawmakers on Saturday overwhelmingly approved a package of rules for police body cameras that also requires independent investigations of officer-involved citizen deaths, creates a process for appointing special prosecutors and bulks up data-collection efforts on police stops and misconduct.
> Senate Bill 1304, which the Senate approved on a 45-5 vote, was a direct response to national controversies over use-of-force policies after officer-involved deaths of unarmed black citizens in New York City; Ferguson, Mo., and other places.
> The legislation, sponsored by Sen. Kwame Y. Raoul and Rep. Elgie R. Sims Jr. — both Chicago Democrats — was approved by the House on a 107-3 vote earlier last week amid contentious budget talks that have forced legislators to schedule session days beyond their normally scheduled May 31 adjournment.
> The law wouldn’t force departments to use body cameras. Instead, it would rely on a $5 hike to all traffic tickets issued in Illinois to create a grant program that subsidizes the cost for departments to opt in to the program.
> Raoul said part of the reason the bill doesn’t require camera use was that, even with some added revenue from ticket fees, it would have been too costly for the state to mandate them for every department.
> “One thing I think is that it’s going to, in short time, be so widely used voluntarily that at that point we can cross that road,” he said today. “But, at this point, this state is obviously dealing with a resource challenge.”
> The bill also bans police chokeholds — the tactic that caused an outcry when police used it in a confrontation that killed an unarmed New York City man last year.
> And, in light of confusion over a state eavesdropping law that went into effect in December, the bill clarifies that citizens can record police when officers have no “reasonable expectation” of privacy.
And that final sentence was pretty much all the media coverage the amendment to the eavesdropping law received at the time, which goes to show just how short attention spans tend to be in the media.
So back to Daniel Murphy, who is facing two felonies from what started out as a misdemeanor domestic disturbance call and who may still be sitting in jail.
We have very little details to go on at the moment, but it is unlikely the eavesdropping charge will stick considering the circumstances.
And it’s rare that police would tack on a felony assaulting an officer charge a day after the initial arrest.
Of course, anything can happen once they order you to stop recording.
