Recording Police in North Dakota: One-Party Consent and the Privacy-Expectation Limit in § 12.1-15-04

Start with what does not exist. A keyword scan of all 2,531 chapter files of the North Dakota Century Code turns up no provision using the phrase a drafter would have needed here. There is no counterpart to California Penal Code § 148(g), no counterpart to New York Civil Rights Law § 79-p, and no counterpart to the Nevada formula about recording a law enforcement activity. There is also no distance rule: the Century Code sets no minimum separation between a bystander and an officer, and creates no offense of failing to retreat a stated number of feet after a warning.

The operative statute is therefore the eavesdropping offense in chapter 12.1-15. Section 12.1-15-02(1) makes it a class C felony to intentionally intercept any wire or oral communication by use of an electronic, mechanical or other device, or to disclose or use the contents knowing they came from such an interception. Section 12.1-32-01(4) puts the maximum for a class C felony at five years of imprisonment, a $10,000 fine, or both. That sounds severe until the definitions in section 12.1-15-04 are read against a roadside encounter.

Two definitions decide the question. Section 12.1-15-04(4) defines intercept as the aural acquisition of the contents of a wire or oral communication through the use of a device, or by secretly overhearing the communication. Section 12.1-15-04(5) defines oral communication as any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying such expectation. A trooper giving instructions at the side of a North Dakota highway, or an officer speaking at a public counter, is not uttering words under circumstances justifying an expectation against interception. The subject matter of the offense is therefore absent before any consent question arises.

North Dakota is also a one-party-consent jurisdiction. Section 12.1-15-02(3)(c) makes it a defense that the actor was a party to the communication, or that one of the parties had given prior consent, provided the communication was not intercepted for the purpose of committing a crime or other unlawful harm. A driver or a person being questioned is a party to that conversation, so recording it is defended even if a court were to find some expectation of privacy in it. The parallel defense in section 12.1-15-02(3)(b) covers a person acting under color of law who is a party or has one party's consent, which is why officer-worn and in-car recording is lawful on the same principle.

Video without sound sits outside chapter 12.1-15 altogether, because the offense reaches only wire and oral communications and the defining verb is aural acquisition. The Century Code's nearest visual-privacy offense, surreptitious intrusion under section 12.1-20-12.2, requires that the individual act with intent to arouse, appeal to or gratify lust, passions or sexual desires, and reaches houses, dwellings, tanning booths, hotel sleeping rooms and comparable places. It cannot reach a person filming a traffic stop.

The real exposure is conduct, not recording. Section 12.1-08-01 makes it a class A misdemeanor, up to 360 days and $3,000, to intentionally obstruct, impair, impede, hinder, prevent or pervert the administration of law, with a defense that the government function was not lawful but no defense of mistaken belief that it was unlawful. Section 39-10-02 separately makes it unlawful to willfully refuse to comply with any lawful order or direction of a police officer invested by law with authority to direct, control or regulate traffic, and section 39-06.1-10 assigns two points for disregarding the lawful commands of a police officer under that section. Filming from a lawful vantage point is not obstruction; stepping into a traffic lane, crossing a scene perimeter or refusing a traffic-direction order is a separate offense that the camera does not excuse.

Illegally intercepting an oral or wire communication, or disclosing or using its contents knowing they were intercepted, is a class C felony under N.D.C.C. § 12.1-15-02(1), carrying up to five years of imprisonment and a $10,000 fine under section 12.1-32-01(4). Manufacturing, possessing, transporting or selling a device knowing its design makes it primarily useful for surreptitious interception is separately a class C felony under section 12.1-15-03(1), which a phone or a windshield camera plainly is not. On the other side of the encounter, interfering with officers while recording is charged under section 12.1-08-01 as a class A misdemeanor, up to 360 days and $3,000, and refusing a lawful traffic-direction order violates section 39-10-02 and adds two points to the driving record under section 39-06.1-10(3). No North Dakota statute authorizes an officer to delete a recording, to demand a device as a condition of ending a stop, or to seize footage without process.