Recording Police in New Jersey: One-Party Consent Plus AG Directive 2021-11

The New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq., is the statute that decides whether audio recording is a crime here, and a violation of N.J.S.A. 2A:156A-3 is a crime of the third degree, which carries three to five years under N.J.S.2C:43-6. The exception that matters to ordinary people is subsection d of N.J.S.A. 2A:156A-4, which makes it lawful for "a person not acting under color of law to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." There is one carve-out from the carve-out: the exemption falls away if the recording is made or used for the purpose of a criminal or tortious act, or "for the purpose of committing any other injurious act." Because you are a party to your own traffic stop, recording it needs nobody else's permission in New Jersey.

Video of officers working in public is usually outside the Act altogether. N.J.S.A. 2A:156A-2(b) defines an "oral communication" as one "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." A trooper speaking to a driver on the shoulder of Route 1, or an officer giving orders on a sidewalk, is not exhibiting that expectation, so the wiretap prohibition does not reach the recording.

New Jersey also lets residents listen to police radio. Subsection f(2) of N.J.S.A. 2A:156A-4 permits any person to intercept radio transmitted "by any governmental, law enforcement, civil defense, private land mobile, or public safety communication system, including police and fire, readily accessible to the general public." The phrase is defined in N.J.S.A. 2A:156A-2(r), which excludes anything scrambled or encrypted, so an unencrypted municipal channel may be monitored while an encrypted one may not.

Directive 2021-11 is where New Jersey goes further than most states. Acting Attorney General Andrew J. Bruck issued it under the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, and directed every law enforcement and prosecuting agency operating under State law to comply. Section I.A.1 says a bystander may witness, observe, photograph, audio and video record, comment on or complain about officers conducting official duties in public, and in private places where the bystander has a right to be present, including the common areas of private buildings and the bystander's own home or business, and that the bystander has the same right to record as a member of the press.

The Directive is equally specific about phones and cameras as property. Section II.A requires a warrant to seize and search a recording device, with narrow exceptions: seizure during a search incident to a lawful arrest, which still does not permit a search of the device without a warrant, and seizure where the officer has probable cause to believe the device holds evidence of a crime and the bystander refuses to hand over the recording. Even then the officer may seize only under exigent circumstances, defined in the Directive as probable cause that a violent crime resulting in serious bodily injury or death has been committed, a good-faith belief that evidence of that crime is on the device, and a good-faith belief that the evidence will be lost or destroyed absent seizure. Journalists get more: officers should never seize a press member's recording device except where necessary for public safety or incident to the journalist's lawful arrest, must never delete material from it, and must get County Prosecutor or Attorney General approval before seeking a warrant to search it. Any seized device must come with information about where, when and how to get it back, and must be returned as soon as practicable.

The limits are real. Holding a camera does not entitle anyone to cross a police line, enter a closed area or step into a crime scene, and section I.B.3.i of the Directive expressly preserves N.J.S.2C:29-1, the obstruction offense. Officers may also question or detain a person they reasonably suspect of a crime.

When the police are the ones recording, N.J.S.A. 40A:14-118.5 governs. An officer wearing a body worn camera must notify the subject that they are being recorded as close to the start of the encounter as reasonably possible, unless doing so is unsafe or infeasible, in which case the reasons must be documented. Before entering a private residence the officer must notify the occupant, and if the occupant asks the officer to stop recording the officer must do so immediately unless actively investigating a criminal offense, responding to an emergency, or reasonably expecting to use constructive authority or force. Footage must be kept at least 180 days, and at least three years where a qualifying person requests the longer retention.

Recording lawfully is not an offense in New Jersey, so the exposure runs the other way. A that it creates no substantive right enforceable by any third party, so the route is a complaint to the agency's internal affairs unit, the County Prosecutor, or the Division of Criminal Justice, whose Director the Directive names as the point of contact for questions on interpretation. 2C:30-6, reaches a public servant who knowingly and with discriminatory purpose subjects another to unlawful arrest, detention, search or seizure, and it is graded as a third degree crime, second degree if bodily injury results. A. A. 2A:156A-24. 2C:29-1 as a disorderly persons offense, or a fourth degree crime where the detection or investigation of a crime is obstructed.