Judge dismisses wiretap charges in Taser incident
By Karen SmithmyerBedford Gazette Staff Writer
EVERETT--Wiretap charges were dropped against an Osterburg man Wednesday in Central Court, but a magisterial district judge bound over disorderly conduct and resisting arrest charges.
A confrontation over a tape recorder in the courthouse complex had led to the arrest of Donald R. Ickes, 72, who was hospitalized after he was Tasered during the incident.
At the preliminary hearing for Ickes, District Judge Carol J. Johnson of Fulton County determined the alleged wiretapping incidents occurred in public places and did not fall under her definition of expectation of privacy. Johnson was brought in to hear the case after the county’s judges recused themselves.
Ickes was charged with three counts interception, disclosure or use of wire, electronic or oral communication, and one count each disorderly conduct and resisting arrest at approximately 3:50 p.m. Fe. 13 at the Bedford County Courthouse. Ickes was near the judge’s chambers outside Courtroom No. 1 and the tax assessment office at the time, according to the charges.
Assistant district attorney Travis Livengood called two witnesses to testify, Bedford Borough Police officer Rick Kinsinger and Bedford County Sheriff’s deputy Matt Diehl.
Kinsinger was the arresting officer and testified he had been notified by the Bedford County sheriff’s office that a man was walking around the courthouse with a tape recorder.
Kinsinger testified that Ickes was compliant with his initial request to step from the tax assessment office into the hallway, but after that, Ickes became noncompliant. “I told him he was in a violation of the wiretap law, and he told me ‘I don’t think so,’” Kinsinger said.
Ickes then attempted to walk away from Kinsinger as he was asking Ickes to turn off the tape recorder, Kinsinger said. “After he refused, I told him he was under arrest and asked him to put his hands behind his back,” Kinsinger said.
A struggle ensued, with Ickes struggling, twisting and turning, according to the testimony. Kinsinger then pulled out his Taser and told Ickes he would deploy it if he continued resisting arrest, Kinsinger said.
He also testified that Ickes told him to “go ahead, tase me.” Kinsinger deployed his Taser, he said, after telling Ickes again he was under arrest.
“After initial deployment, the Taser nodes shorted each other out and Ickes was still trying to get away, so I used the Taser a second time,” Kinsinger said.
Diehl testified because he was in contact with Ickes near the judge’s chambers outside Courtroom No. 1.
“I noticed he had a tape recorder but I had no idea whether he was taping me or not,” Diehl said.
For his closing argument, Ickes’ attorney, Tom Hooper, contended that Ickes’ recorder was large and in no way could be confused as anything other than a tape recorder.
“I ask that all counts of wiretapping be dismissed,” Hooper said.
Hooper also requested that the resisting arrest charge be dropped because the incident involved an elderly gentleman asking if he were under arrest.
“Only after Mr. Ickes asked about three times if he were under arrest did that struggle occur,” Hooper said.
Livengood’s argument was that, although Ickes is an elderly gentleman, who doesn’t know what’s going on.
He also argued that everyone should have the “right to feel they aren’t being recorded.”
After a short recess for the judge to review the case, Johnson said she couldn’t understand why the conversations that were recorded could be deemed private.
“It’s a public setting where other individuals are present,” Johnson said.
She then dismissed all counts of wiretapping, but said she still couldn’t figure out why Ickes felt the need to record them in the first place.
“I have no idea why (Ickes) did that, and I don’t necessarily agree with it, but as far as the law is concerned, there is a no expectation of privacy,” Johnson said.
Johnson bound over for further court action the disorderly conduct and resisting arrest charges.
Following the incident at the courthouse, Ickes was hospitalized in the intensive care unit for several days.