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Category: Criminal Law
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I am agent for my dad in an unincorporated HOA. I was a member

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I am agent for my dad in an unincorporated HOA. I was a member also for over 10 years but no longer own property in the HOA. We had a member meeting at a restaurant banquet room. I recorded the meeting with a video cam which was placed in plain sight on a chair (the electric cord was not long enough to put on the table). One of the members complained and I was under investigation for violating MCA 45-8-213 (1) (c). I voluntarily gave the investigating officer the tape and recorder as part of the investigation. He now tells me he does not have sufficient cause to charge me but considers the tape to be contraband and will not release it back to me. He said I have to petition the court to get the tape back. How can he determine I did not perform an illegal act but say my tape was obtained illegally and keep it. He wants to destroy it. He said if I get it back and play the tape for anyone - even someone who had a right to attend the meeting - and he finds out he will investigate and I will be charged criminally. He said he also considers that the meeting was NOT a public meeting, even though it was held in a public forum and there were attendees present who are not HOA members. I taped the meeting for the benefit of some members who were unable to attend and want to give them the opportunity to hear what transpired. The person who filed the original complaint is just mad because he made some statements which indicate he is not being ethical in his duties as HOA president (he stated that he had a former HOA Board member countersign checks before they resigned so he could conduct business until another member was elected - which was almost a year later - and he is refusing to provide financial transaction details for the last few years to the members). Anyways, can the detective hold the tape I voluntarily provided even though he is not going to file charges against me? He wants to destroy it because the complaining party is raising all kinds of hell because I am not being charged with a crime.

Good morning Barb,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

The Montana law regarding the recording of conversations without permission of all parties present at the conversation is contained in Montana Code Annotated, §45-8-213. Privacy in communications.
(1) Except as provided in 69-6-104, a person commits the offense of violating privacy in communications if the person knowingly or purposely:
(a) with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by electronic communication and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of the person. The use of obscene, lewd, or profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend.
(b) uses an electronic communication to attempt to extort money or any other thing of value from a person or to disturb by repeated communications the peace, quiet, or right of privacy of a person at the place where the communications are received;
(c) records or causes to be recorded a conversation by use of a hidden electronic or mechanical device that reproduces a human conversation without the knowledge of all parties to the conversation. This subsection (1)(c) does not apply to:
(i) elected or appointed public officials or to public employees when the transcription or recording is done in the performance of official duty;
(ii) persons speaking at public meetings;
(iii) persons given warning of the transcription or recording, and if one person provides the warning, either party may record; or
(iv) a health care facility, as defined in 50-5-101, or a government agency that deals with health care if the recording is of a health care emergency telephone communication made to the facility or agency.
(2) Except as provided in 69-6-104, a person commits the offense of violating privacy in communications if the person purposely intercepts an electronic communication. This subsection does not apply to elected or appointed public officials or to public employees when the interception is done in the performance of official duty or to persons given warning of the interception.
(3) (a) A person convicted of the offense of violating privacy in communications shall be fined an amount not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.
(b) On a second conviction of subsection (1)(a) or (1)(b), a person shall be imprisoned in the county jail for a term not to exceed 1 year or be fined an amount not to exceed $1,000, or both.
(c) On a third or subsequent conviction of subsection (1)(a) or (1)(b), a person shall be imprisoned in the state prison for a term not to exceed 5 years or be fined an amount not to exceed $10,000, or both.
(4) "Electronic communication" means any transfer between persons of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.

You are right; that the recording is either illegal or it is not. If it is illegal, then it need not be returned to you. However, just because it is adjudged illegal does not mean that you MUST be prosecuted for the alleged crime.

The prosecutor can take the position that they don't believe you can be convicted beyond a reasonable doubt, and choose not to prosecute you. Technically, they can hold the recording as potential evidence of the crime until the statute of limitations expires if they want to press the issue.

You may petition the court for the return of the recording, or to have a copy of the recording made for your personal use.

It is NOT the sharing of the recording with people who might not have been allowed to attend the meeting that makes the recording illegal. That act might be grounds for a claim of invasion of privacy---a very weak claim at that---but it would not make an otherwise legal recording somehow illegal. That is a preposterous suggestion.

I do tend to agree with you, that based on the people allowed into the meeting, that the meeting would qualify as a public meeting and the recording was entirely lawful. However, intimately the determination of that fact would be decided by a judge or a jury, and the police are violating no law at present by refusing to return the recording. You might give them notice that they are not to destroy the recording as it is evidence in a suit you plan to bring if the recording is not returned to you.

If your formal request for the property to the court doesn’t result in its return, then you would need to file a Replevin claim against the police department and seek a court order that the tape be returned.

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I wish you the best in your future.



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