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California Wiretapping Law Penal Code 631 PC

The California law that defines the crime of wiretapping is Penal Code 631 PC.  This section of the law makes it illegal to use a recording device to tap directly into another person’s phone line for the purpose of listening in on private communications. A wiretapping offense can be charged as a misdemeanor or a felony and carries a maximum sentence of up to 3 years behind bars.

For the purposes of this law, California is a “two-party consent” state, meaning that both parties having a conversation must give consent if it is to be lawfully recorded.

The majority of people think of wiretapping, or telephone tapping, as something that law enforcement officers use to solve crimes.  In reality, private citizens engage in the illegal recording of a telephone conversation, sometimes for the purpose of gaining an advantage over a business competitor or the other party in a legal dispute by finding out their secrets.  Unbeknownst to many, California law renders it illegal for individuals who are not law enforcement officers to tap someone’s phone without their permission.

 

In this article, The California criminal defense attorneys at Spodek Law Group explain California wiretapping legislation by answering these questions:

 

When is wiretapping illegal in California?

How is Penal Code 631 PC applied to law enforcement investigations?

Is the government allowed to wiretap prisoners’ telephone calls?

If you still have questions after reading this article, we invite you to contact the California criminal defense attorneys at Spodek Law Group.

 

When is wiretapping illegal in California?

If you have been accused of the California crime of wiretapping, you might have been taken a little off guard.  A lot of people may think, “If cops do it, why can’t I?”

In truth, California state legislation makes it a crime for private citizens to tap someone’s phone.

 

California’s statute against wiretapping, Penal Code 631 PC, enumerates the activities that constitute illegal wiretapping as follows:

 

Using any machine or instrument to intentionally tap into, or create an unauthorized connection to, any telegraph or telephone line,

Reading or attempting to read or learn the contents of any message passing over a telephone or other wire, willfully and without the permission of all of the people involved in the message,

Using or attempting to use or communicate any information retrieved in this manner, and

Aiding or conspiring with another to do any of the things on this list.

 

What about intercepting cell phone or cordless phone calls?

The above speaks of landlines, but the law also makes it a crime to intercept calls on cellular phones and cordless phones.

Potential Penalties

Generally, the California crime of wiretapping is a wobbler offense.  The District Attorney can choose to try it as either a misdemeanor or a felony, based on the circumstances of the case and the defendant’s criminal history.

As a misdemeanor, the maximum penalties are a fine of up to $2,500, up to a year in county jail, or both.

AS a felony, the jail sentence is sixteen months, two years, or three years.

In addition to this, if this is a second conviction on wiretapping charges or of certain other crimes associated with invasion of privacy, the maximum fine goes up to $10,000.

 

The use of illegal wiretap information as evidence

If you obtained information through an illegal wiretap with the objective of using it against someone else in a court case, you’ll be disappointed.  Any evidence that was gained through illegal wiretapping is prohibited from use in any court proceeding.  The exception to this rule is criminal trials for a violations of Penal Code 631 by the wire tapper.

 

Civil wiretapping lawsuits

If you have been accused of criminal wiretapping, you might very well be looking at a lawsuit by the person or people who are the supposed victims of the wiretapping. According to California criminal law, Penal Code 637.2 PC, victims can bring a civil suit for damages against someone who committed criminal wiretapping against them.

 

Offenses Related to Wiretapping: Eavesdropping – Penal Code 632

Eavesdropping and wiretapping are akin, but not identical. The essential difference is that wiretapping is the act of intercepting and listening in on conversations by tapping into the phone line, whereas eavesdropping is the act of listening in on conversations using an electronic device but without tapping a phone line.  Interestingly, this statute also applies to hidden video cameras and secret video recordings. In cases where a conversation took place in a public area where the speaker did not have a reasonable expectation of privacy, it might not be considered improper eavesdropping

Similarly to wiretapping, eavesdropping is a wobbler.  The maximum misdemeanor penalty is up to a year in county jail, a fine, or both. As a felony, conviction carries is sixteen months, two years, or three years in state prison, a fine, or both.

Another offense related to wiretapping is Penal Code 591 PC damaging a telephone line. Cutting or damaging telephone wires  or phone equipment with malicious intent, can result in a charge of this wobbler offense.

 

How is Penal Code 631 PC applied to law enforcement investigations?

As you may have expected, the group with the most motivation to set wiretaps is law enforcement officers. Wiretaps would give them a chance them to “spy” on people they suspect of crime.  A tap could provide them the compelling evidence they would need to make an arrest.  Indeed, the police are permitted to do it within legal limits on when and how.

Here’s a rundown of the requirements police have to fulfill in order to tap a phone legally.  We will also show you what recourse you have if you are charged with a crime based on wiretap evidence that was not obtained in keeping with those requirements.

A Court order is required

Police officers must to obtain an order from a judge allowing them to tap a phone line.  The court may only issue this order when the following elements are involved:

Probable cause exists that someone is committing, has committed, or is about to commit any of a limited list of serious felonies, as follows:

Serious drug offenses (manufacturing, possession for sale, or selling or transportation) involving more than three pounds or ten gallons of heroin, cocaine, PCP, or meth (marijuana is excluded from this);

A murder or a solicitation to commit a murder,

A kidnapping for ransom or extortion, or for the purpose of committing robbery or rape,

Specific felonies that involve bombs or other destructive devices,

A felony violation of California’s street gang legislation,

Acts of terrorism that involve weapons of mass destruction or biological agents, and

Any attempt or conspiracy to commit any of the crimes listed above.

 

Probably cause that the wiretap will actually lead law enforcement officials to overhear particular communications concerning the illegal activity can be demonstrated.

Probable cause that the place where the wire is located is being used or will be used to commit the offense, or else belongs to or is commonly used by the person whose communications will be intercepted can be demonstrated.

Customary investigative procedures that don’t use on wiretaps have been tried and have failed, or appear unlikely to succeed if they are tried, or will be too dangerous if they are attempted

 

It also worth noting that the maximum length of time a wiretap order may be in effect is ten days from the date of the order, or thirty days from the date communication was first intercepted, whichever comes first.  Police can then file for an extension of the original order, which also won’t be longer than another thirty days.

 

Required to notify

If an application for an order authorizing a wiretap that will intercept your communications has been made by law enforcement officials, they are obligated to notify you in most cases, even if the application was rejected.  Notification is not an obligation until after the authorized period for the wiretap is expired.  Additionally, the only information they are required to give you is the date of the order authorizing the wiretap, the period during which the wiretapping was authorized, and whether or not your communications were actually intercepted.

You have a right to file a motion with the judge who granted the wiretapping order asking to inspect the original application, the order, and the intercepted communications.  That said, the reality is that the judge is not obligated to honor your request.  Furthermore, if your request is indeed honored, what portions of those materials you are granted access to is at his or her discretion.

On the other hand, if you are charged with a crime in connection to the wiretap, then you would get all of it during discovery.

Filing a motion to suppress illegal wiretap evidence

If, after being charged, the and any of the legal wiretap requirements were not met by law enforcement, then you may file a Penal Code 1538.5 “Motion to Suppress Evidence.”  These motions are most commonly used to discredit evidence that police obtain when they violate California search and seizures regulations, but they can also be used to challenge wiretap evidence.

 

Is the government allowed to wiretap prisoners’ telephone calls?

It is a felony offense for anyone, including jail employees, to use any electronic devices to eavesdrop on or record any conversation between someone who is in the custody of law enforcement and the following:

The inmate’s lawyer,

The inmate’s religious advisor, and

The inmate’s licensed physician.

Eavesdropping on these conversations is a wobbler crime, as long as those conversations took place in a location where there’s a reasonable expectation of privacy, such as a custody holding room.  The law gives a detainee the inalienable right to speak with their lawyers, religious advisors, or doctors in private while in prison.

Contrary to this specific right,  phone calls you make to people other than these are fair game. In fact, in prison, you will likely be warned that all outgoing telephone calls you make will be recorded. In fact, anything you say on those calls can be used as evidence against you in your criminal proceeding.

 

Contact The Highly Skilled California criminal defense attorneys at Spodek Law Group If you or a loved one has been wiretapped and you need to hire an attorney for representation,. We can give you a free consultation in office or by phone. We serve clients in the greater Los Angeles area, the San Fernando Valley, Orange County, Ventura, Pasadena, San Bernardino, Rancho Cucamonga, Long Beach, Riverside, San Diego, Oakland, San Francisco, Sacramento, San Jose and throughout the Golden State.


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