California Penal Code 631/632: Unauthorized Audio Recording & Wiretapping

Legal Definition: A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other devices, except a radio. (PC 632(a))

What does this mean?

Wiretapping in the context of PC 631(a) means to use a device, like a bug or spyware to eavesdrop on another person’s conversation or electronic communication. Think special agent movie, for more context. Wiretapping is never legal for any private citizen. Police may use wiretaps in limited situations when there is a valid warrant that authorizes the law enforcement agency to wiretap. Without that warrant, a wiretap from the police would be inadmissible.

The more common situation falls under PC 632(a). This can occur where you record a phone conversation you have with another person, to later use against them at some point. You cannot do this. If you were to record a conversation in public, where there are other people around talking, and where others around you can hear, then that is not illegal. This charge is specific to a person, whom you record, without their consent. A court, on the other hand, can give you their consent, if in a Restraining Order case.

Police, on the other hand, can illegally record you and your conversations. Many times this happens in sex cases, where police set up a pretext call with the victim calling the defendant. There, the victim tries to goad the defendant into apologizing or admitting guilt for the crimes. Then, any admission from that phone call can be used against you in Court.

Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceedings. So in other words, you can record someone, recording you, to prove they recorded you first. Crazy, huh?

Another exception for private citizens falls under PC 633.5. PC 633.5 allows for the audio recording of another person without their consent in limited situations. The situations include phone harassment by the person recording the harassment and any recording of communication relating to the commission of extortion, bribery, kidnapping, or any felony involving serious violence against the person recording the communication or his or her family. These are very specific sections, for a very specific exception to the rule that you cannot record another person. This is important because if a private person tries to record a phone call, without police, to get you to confess to a crime in the past, then that would be illegal and they could be charged under this Code section.

Penalties

Illegal Recording or Wiretapping is a wobbler offense. This means it can be charged as a felony or as a Misdemeanor, based on your criminal history and the specific facts of your case. If convicted under PC 631 or PC 632, you could be sentenced to up to one year in County Jail as a misdemeanor offense. If you are convicted of these offenses as Felonies, you could be sentenced upwards of 16 months, two or three years in State Prison. You would have to serve 50% of that time.

You could also be subject to a Criminal Protective Order, that will prevent you from contacting the alleged victim. This would also require you to forfeit your firearms while this Order is in place.

Common Defenses

1. Statute of Limitations
2. Insufficient Evidence
3. Violation of your Rights
4. Mistake of Fact

A commonly used defense occurs when you have a recording device, even your iPhone, and it accidentally records a conversation you were having with another person. In that circumstance, you would not be guilty of this charge, because you reasonably did not believe you had been recording anyone.

Another case could be if you were out in public, maybe by a beach, and filming the scenery. While there, you may record parts of different conversations from passers by. That, because it was not intentional, and not aimed at any specific person, would also not be a violation under this section.

Call Today

Dealing with the overwhelming stress of a criminal case and the looming threat of a conviction under PC 632 can be a daunting experience. While you might not be facing a life sentence, the repercussions on your criminal record can significantly hinder your future employment prospects. In such crucial times, having an experienced attorney to champion your defense is paramount.

Our Ontario criminal defense attorney at Inland Empire Criminal Defense is well-versed in handling cases involving PC 632 and other serious offenses. We bring a wealth of experience and a track record of successful defenses to the table, ensuring that every aspect of your case is meticulously analyzed and effectively challenged.

You and your loved ones don’t have to navigate this challenging journey alone. We provide a free initial consultation to address your concerns and questions 24/7. For dedicated and expert legal representation in Ontario, CA, don’t hesitate to contact the Inland Empire Criminal Defense team today at 909-939-7126. Our commitment is to fight tirelessly for your rights and work towards achieving the best possible outcome in your case.