Unauthorized Audio Recording & Wiretapping
California PC 631 & PC 632
In California it is illegal to wiretap the communications of persons without the other person's permission and without court order to do so (Court order or warrant signed by a judge). It is also illegal to record another person's audio communication without the other person's permission.
There is a difference between wiretapping law, which is found at PC 631, and unauthorized recordings, which is found at PC 632. However, often times both crimes are charged together because the facts surrounding an illegal wiretap uses evidence that was recorded.
When the illegal wiretap does not use recording equipment (just eavesdropping on a communication), then only a wiretap crime has been committed.
The Crime of Wiretapping
The law on illegal wiretapping is found at PC 631. Wiretapping means to use a device, commonly called a "bug" or "spy ware" to listen in on another person's conversation, or "eavesdrop" on that communication.
The communication does not necessarily have to be recorded for the crime of wiretapping to be complete but often times the same equipment used to eavesdrop is also part of a recording system.
Both law enforcement and private citizens have the ability to wiretap due to the sophistication of modern technology that is available to private citizens and to law enforcement agencies.
Wiretaps that are installed on electronic equipment are usually placed on cell phones, telephones, and computers. Wiretaps can be both stationary, such as a bug placed in a flower at an office, or mobile, such as a bug sewn into a woman's purse or on a cell phone.
Sometimes a wiretap is designed to just listen in on conversation. Wiretapping is never legal for private citizens.
When wiretapping is used by police to just listen in on a conversation it is because the police believe that the conversation will lead to evidence of a crime that has been committed or is about to be committed. In other words, the police are listening to a conversation in order to produce probable cause to charge a crime.
However, in order for the police to obtain a legal wiretap the police must obtain a warrant (See PC 631). The warrant must specifically describes for the judge when and where a particular conversation is suppose to take place, and why that conversation will lead to probable cause that a crime is about to be committed or has already been committed.
In other words, law enforcement can not just listen in on conversations hoping to get information about a crime. In addition, police can not get a warrant from a judge for a legal wiretap without informing the judge exactly what law enforcement is seeking to hear and why law enforcement believes that the conversation will take place at a particular time.
Any evidence obtained as result of an illegal wiretap (a wiretap without a warrant) is subject to being thrown out in court (made inadmissible) through a suppression of evidence hearing.
In addition, both law enforcement and private citizens can face jail or prison time for the illegal wiretap. Finally, both law enforcement and private citizens may be sued in civil court for money damages for illegal wiretaps.
If found guilty of felony wiretapping the defendant could face up to three years in prison. If found guilty of misdemeanorwiretapping, the defendant could face up to a year in county jail.
Whether or not the district attorney charges felony or misdemeanor illegal wiretap criminal charges against a defendant depends on the facts of each case and the defendant's criminal history.
Illegal or Unauthorized Audio Recordings:
Recording the audio communications or conversations of another person without a court order or the other person's permission is illegal in California. Audio communication means recording another person's voice without the other person's permission or knowledge. However, if the recording is not directed at a particular person there is no violation of PC 632 (think of recording an open and public event with people talking in the background without the people in the background giving permission to record their voice)
The law on unauthorized audio recordings is found at California Penal Code 632.
As stated PC 632 makes it illegal for a person to record another person's audio communication or conversation. However, law enforcement may record the communications between two people without a warrant if the police officers reasonably believe that the communication will lead to probable cause to believe that a crime is about to be committed or that a particular crime has been committed and if they have the permission of at least one party to the recorded conversation.
The most commonly recorded conversation by law enforcement is between defendants and victims of crime. In the most common scenario, the alleged victim of a crime is contacted by police and asked to perform a "pretext" phone call. The term "pretext" simply meaning that the text of the conversation is predetermined.
In pretext phone calls the police attempt to get the defendant to confess to the victim about a crime that is alleged to have occured.
Private Citizens Recording Other Private Citizens Without Permission:
When private citizens record the communications between themselves and other persons (usually to gather evidence against the other person) it is illegal unless the other person gives permission for the recording or there is a court order that allows the private citizen to record the conversations (See PC 632).
All evidence obtained illegally may not used in either civil or criminal court (with a narrow exception discussed below).
Court orders that allow private citizens to record the conversations between the private citizen and another person are easily obtained during civil harassment cases or domestic violence cases where it is alleged that the defendant, Petitioner, or Respondent, is harassing, or likely to harass, the alleged victim by telephone or cell phone.
Also, if a person reasonably should know that he or she is being recorded than they do not need to be expressly told of that fact. For example, if a person places a recorder in front of another person and says "I want to record this conversation" then the fact that the other person does not object is equal to the other person's "implied consent" to have his or her voice recorded.
There is also implied consent to record another person's voice when the other person leaves a voice mail or recording on another person's recorded messages.
Finally, there are some limited exceptions in PC 632 that allow for the use of otherwise illegal audio recordings. The first two are discussed above: Permission to record and Court Order; but the third exception is very limited. The exception is found at California Penal Code 633.
PC 633 states that if the unauthorized audio recording concerns a conversation concerning the immediate commission of a very serious or violent crime then the audio recording may be admissible in court.
For example, if two people are discussing a plan to murder a police officer in the near future and one person secretly records the conversation then that recording will be admissible despite the fact that the person recording the conversation did not have permission from the other person to record his or her voice (See PC 633).
If found guilty of a violation of PC 632, illegal or unauthorized recording of another person's audio communication or conversations, the defendant will charged with a misdemeanor and may face up to 180 days in the county jail for each violation. In addition, as stated, the illegal evidence that was recorded can not be used in civil or criminal case (except in a prosecution for PC 631 or PC 632).
If you or a loved one has been charged with a violation of California PC 631, wiretapping or eavesdropping, or PC 632, illegal or unauthorized audio recording of another person's voice, contact criminal defense attorney Christopher Dorado for a free consultation.
Or, if you have been charged with a crime and the evidence that is being used against you includes evidence gathered from a wiretap or recorded phone conversation without permission or court order in violation of PC 631 or 632, contact criminal defense attorney Christopher.
Criminal defense attorney Dorado dedicates 100% of his law practice to criminal defense and initial consultations are provided at no cost to the accused.
Attorney Dorado has a successful and proven track record of success in dismissal of criminal charges, successful negotiated deals, and criminal trial victories.
Attorney Dorado will patiently explain to you the law of PC 631 & 632, wiretapping and illegal or unauthorized audio recordings. In addition he will describe for you the possible defenses against a PC 631 or PC 632 criminal charge.
Our office is conveniently located in the heart of the Inland Empire, and attorney Dorado represents defendants charged with PC 631 or PC 632 in cities of Yucaipa, Redlands, Fontana, Rancho Cucamonga, Ontario, Riverside, Victorville, Banning, and all surrounding cities.
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