A now-deleted Reddit account asked the “Ask a Lawyer” forum a simple question: “Can you secretly record a cop in a traffic stop?” A verified lawyer and forum moderator answered plainly. It’s your constitutional right. But they also issued a warning.

Here was the long and short of it: “There is a Constitutional right to record the police in the course of their performance of their duties, so long as the act of recording does not interfere with those duties. There is no need to inform the police officer that you are doing so.”

There is, however, an important caveat.

“The fact that this right exists does not mean every police officer is aware of it.” So what happens if an officer takes offense at being recorded? “You may still be threatened with arrest or actually arrested under wiretapping laws by police officers who do not know the law.”

Can you secretly record a cop in a traffic stop?
by inAskALawyer

Why wiretapping laws still cause problems

Most states have “one-party consent” laws for surveillance, such as wiretapping. If one party to a conversation knows about the recording, it’s legal.

Some places follow stricter rules. States including California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, and Washington have some form of “two-party” or “all-party” consent law. While details vary, the basic rule is the same: You cannot legally record a conversation unless all participants know.

In those states, an officer may argue that secretly recording them violates wiretapping laws. They may even arrest you.

The verified attorney, who goes by Compulawyer on Reddit, explains why that argument doesn’t hold up. “The hierarchy of laws applies.” Courts have repeatedly ruled that citizens have a First Amendment right to record police officers in public spaces while the officers perform their duties.

Compulawyer adds, “The First Amendment of the US Constitution trumps state laws that conflict with it. A state cannot make a law that takes away the ability to do anything that the US Constitution guarantees the freedom to do.”

But this is an argument you may win later in court. It is not one you are likely to win on the roadside.

How to assert your rights and record a traffic stop

The reality is that recording an interaction can help keep both you and the officer professional. To achieve that goal, transparency works better than secrecy.

While covert recording may be legal, it will not make a traffic stop smoother. A better approach is to place your phone in the cupholder, hit record, and tell the officer you are recording as soon as possible.

If a police officer asks you to stop recording or tries to take your phone, the ACLU suggests you say the following: “I have a First Amendment right to take photographs and videos and do not consent to handing over my phone or having it searched.” More tips from a lawyer on how to safely record an interaction with police in the video embedded below: