Brinworld, 2.0: Wiretap charge dropped in police video case

[R.A. Hettinga]

<http://blog.pennlive.com/patriotnews/2007/06/197281-wiretap_charge_dropped_in_poli.html>


 - Breaking News with The Patriot-News: PennLive.com



Wiretap charge dropped in police video case

Posted by Matt Miller/The Patriot-News June 21, 2007 04:00AM

Categories: Courts, Crime, Cumberland County, Midstate

A case that attracted nationwide attention has ended with the dropping of a
felony wiretapping charge against a Carlisle man who recorded a police
officer during a traffic stop.

Cumberland County District Attorney David Freed said his decision will
affect not only Brian Kelly, 18, but also will establish a policy for
police departments countywide.

"When police are audio- and video-recording traffic stops with notice to
the subjects, similar actions by citizens, even if done in secret, will not
result in criminal charges," Freed said yesterday. "I intend to communicate
this decision to all police agencies within the county so that officers on
the street are better-prepared to handle a similar situation should it
arise again."

Freed's decision came a week after a story in The Patriot-News caused a
storm of criticism over Kelly's May 24 arrest by a Carlisle police officer
on the wiretapping charge, which carries a penalty of up to seven years in
prison upon conviction.

Kelly's father, Chris, called the withdrawal of the charge "fantastic."
"That's what should have happened to begin with," he said.

District attorneys in two other midstate counties said they don't have
policies regarding how police should deal with similar situations.

Police officers usually confer with his office before filing charges if
they encounter cases that "are a little out of the ordinary," Perry County
District Attorney Chad Chenot said.

"We handle these on a case-by-case basis," Dauphin County District Attorney
Edward M. Marsico Jr. said. "The facts are always different."

Kelly was arrested under a Pennsylvania law that bars the audio recording
of anyone's conversation without consent. Taking pictures or filming
without sound in public settings is not illegal.

Brian Kelly said he spent 26 hours in the county prison after his arrest.
He was released when his mother posted her house as security for his $2,500
bail.

According to the police and Brian Kelly, he was arrested after a pickup
truck in which he was riding was stopped by an officer on West High Street
for alleged traffic and equipment violations.

Kelly said he filmed the incident and was arrested after obeying the
officer's order to turn off and surrender his camera. The wiretap charge
was filed after the officer consulted a deputy district attorney.

The Patriot-News received more than 100 e-mails, phone calls and other
communications from across the area, state and country in response to a
June 11 story on Kelly's arrest. None of those messages supported the
arrest, and several sharply criticized Pennsylvania's wiretap law, which is
among the most stringent in the U.S.

Freed and other law-enforcement authorities also reported receiving e-mails
and calls critical of the decision to charge Kelly.

Freed said he withdrew the charge after reviewing evidence in the case and
state court rulings regarding application of the wiretap law.

Even in voiding the charge, Freed praised Carlisle police for their "hard
work and cooperation" in the investigation of the Kelly case. He said the
officer who charged Kelly acted in a "professional manner."

The law itself might need to be revised, Freed said.

"It is not the most clear statute that we have on the books," he said. "It
could need a look, based on how technology has advanced since it was
written."


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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
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