Wiretapping & California Criminal Law
California Penal Code 631 PC

Wiretapping-also known as telephone tapping-is the use of special technology to "tap" directly into someone else's phone line and listen to all conversations that take place on that line. It is done by accessing the telephone signal.1

Most people think of wiretapping, or telephone tapping, as something that law enforcement officers do to solve criminal cases. In fact, though, private citizens engage in wiretapping sometimes too...often in order to gain an advantage over a business competitor or an opponent in a legal dispute by finding out their secrets. And you may not know that California law makes it a crime for people who are not law enforcement officers to tap someone's phone without their permission.2

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In this article, our California criminal defense attorneys3 explain Penal Code 631 PC, California's law against wiretapping, by addressing the following:

1. Wiretapping as a California crime
(Penal Code 631 PC)

1.1. Prohibited activities

1.2. Penalties

1.3. No use as evidence

1.4. Civil lawsuits

1.5. Related offenses

2. Use of wiretaps by law enforcement

2.1. Court order required

2.2. Notice

2.3. Motions to suppress illegal wiretap evidence

3. Wiretaps of prisoners' telephone calls

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on Legal Definition of a "Wobbler" in California Law; Legal Definition of a Misdemeanor in California Law; Legal Definition of a Felony in California Law; California Drug Crimes; California Laws re Manufacturing of Drugs & Narcotics Health & Safety Code Section 11379.6 HS; California "Drug Possession for Sale" Law Health & Safety Code 11351 HS; Selling or Transportation of a Controlled Substance California Health & Safety Code 11352 HS; California's Murder Law Penal Code 187(a) PC; California Kidnapping Laws; California's Criminal Street Gang Sentencing Enhancement Penal Code 186.22 PC; California "Motion to Suppress Evidence" Hearings Penal Code 1538.5 PC; and California Search and Seizure Laws.

1. Wiretapping as a California crime
(Penal Code 631 PC)

If you are accused of the California crime of wiretapping, you may feel more than a little surprised. The fact that telephone tapping can lead to criminal penalties is not widely-known, and many people may think, "If cops do it, why can't I?"

In fact, though, California makes it a crime for private citizens to tap someone's phone.4 (As we'll discuss in Section 2 below, a very different set of rules applies to law enforcement: police may use wiretaps to help with criminal investigations, provided they obtain a court order.5 )

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1.1. Prohibited activities

California's law against wiretapping, Penal Code 631 PC, lists the activities that would constitute illegal wiretapping. These are:

  1. Using any kind of machine or instrument to intentionally tap into, or make an unauthorized connection to, any telegraph or telephone line,
  2. 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 parties to the message,
  3. Using or attempting to use or communicate any information gained in this way, AND
  4. Aiding or conspiring with anyone else to do any of the things on this list.6
Example: Robert is in the middle of a nasty divorce from his wife. With the help of a friend who is a private investigator, Robert taps his own phone. He plans to record phone conversations with his wife and use them against her in the divorce proceeding.

Robert is guilty of the crime of wiretapping even though he put the tap on his own phone...because his plan was to use the tap to record conversations with his wife without her permission. In addition, the private investigator friend who helped Robert set up the tap is also guilty of wiretapping.7
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Intercepting cell phone or cordless phone calls

These days many-even most-phone calls don't take place over traditional landline phones. California also makes it a crime to intercept calls on cellular phones and cordless phones.8

Under Penal Code sections 632.5 and 632.6 PC, if you intercept a call between two cell phones, two cordless phones, a cell or cordless phone and a landline phone, OR a cell phone and a cordless phone, with criminal intent and without the consent of both parties to the call...then you face the same penalties you would face for tapping a regular phone line.9

1.2. Penalties

In most cases, the California crime of telephone tapping (or interception of cell or cordless phone calls) is a wobbler in California law.10 This means that the prosecutor may choose to try it as either a misdemeanor or a felony, depending on the circumstances of the case and the defendant's criminal history.

If wiretapping is charged as a misdemeanor, then the maximum penalties are a fine of up to two thousand five hundred dollars ($2,500), up to one (1) year in county jail, or both.11

But if it is charged as a felony, then the jail sentence is sixteen (16) months, two (2) years, or three (3) years.12

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Also, if you have previously been convicted of wiretapping or of certain other crimes associated with invasion of privacy (including eavesdropping, intercepting a cell phone call, and intercepting a call on a cordless phone), the maximum fine rises to ten thousand dollars ($10,000).13

1.3. No use as evidence

Any evidence obtained through illegal wiretapping may not be used in any court proceeding (except a criminal trial for a violation of Penal Code 631 by the wiretapper).14 So, if you obtained information through an illegal wiretap with the goal of using it against someone else in a court case, you are out of luck.

Example: In the example above, Robert tapped his own phone so he could record conversations with his wife and use those as evidence in their divorce proceedings. But because he did not have her permission to tap the phone, not only may Robert face criminal charges for wiretapping...he also will not be able to use the conversations as evidence in the divorce case.

1.4. Civil lawsuits

If you are accused of criminal wiretapping, you may also find yourself facing a lawsuit by the person or people who are the supposed "victims" of the wiretapping (that is, people whose calls were overheard or recorded without their permission). California criminal law, Penal Code 637.2 PC, provides that such people can bring a civil suit for damages against someone who committed criminal wiretapping.15

If the person suing you claims that they suffered economic damages as a result of the wiretapping, they may sue you for up to three (3) times the amount of damages they suffered OR five thousand dollars ($5,000), whichever is greater.16 And even if they didn't suffer any damages at all, they can still sue you for up to five thousand dollars ($5,000).17

1.5. Related offenses: eavesdropping (Penal Code 632)

The California law of eavesdropping (Penal Code 632) is closely related to and may be charged along with the crime of wiretapping.18

Eavesdropping and wiretapping are similar, but they're not identical. Basically, the difference is that wiretapping is the act of intercepting and listening in on conversations by tapping into the phone line ...while eavesdropping is the act of listening in on conversations using an electronic device but without tapping a phone line.19

Example: Chris is a small business owner who suspects two employees are working together to embezzle money from the business. One of the employees is based in the business's Los Angeles office, and the other is based in the San Diego office. So Chris, who visits both offices frequently, sets up secret microphones in the offices of both. He uses these microphones to record the phone conversations that take place between the two employees.

Chris is listening in on phone conversations without permission...but because he didn't actually tap the phone line, he is potentially guilty of eavesdropping, not wiretapping.
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Like wiretapping, eavesdropping is a wobbler.20 The maximum
misdemeanor penalty is up to one (1) year in county jail, a fine, or both. The maximum felony penalty is sixteen (16) months, two (2) years, or three (3) years in state prison, a fine, or both.21

2. Use of wiretaps by law enforcement

As you might expect, the people with the most motivation to set wiretaps are police and other law enforcement officers. Wiretaps allow them to "spy" on people they suspect of being involved in crimes...and can provide compelling evidence that those people really were involved.

Because wiretapping is such a powerful law enforcement tool, police ARE allowed to do it legally.22 But there are limits on when and how they can use a wiretap.

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In this section, we will explain the requirements police have to fulfill in order to tap a phone legally...and what you can do about it if you are charged with a crime based on wiretap evidence that was not obtained in compliance with those requirements.

2.1. Court order required

Police officers are required to obtain an order from a judge authorizing them to tap a phone line.23 And the judge can only issue this order if s/he determines, based on the officer's application, that the following things are all true:

  1. There is probable cause to believe that someone is committing, has committed, or is about to commit one of a limited list of serious felonies.24

    In other words, cops can't get an order for a wiretap to help them solve just any crime. They have to have probable cause to believe that one of a few particular crimes has occurred, or is occurring, or is about to occur. These crimes are:

    • Serious drug crimes (manufacturing, possession for sale, or selling or transportation) involving more than three (3) pounds or ten (10) gallons of heroin, cocaine, PCP, or meth (but not, for example, marijuana);
    • Murder or solicitation to commit murder,
    • Kidnapping for ransom or extortion, or in order to commit robbery or rape,
    • Certain felonies involving bombs or other destructive devices,
    • A felony violation of California's street gang law,
    • Acts of terrorism involving weapons of mass destruction or biological agents, and
    • Any attempt or conspiracy to commit any of the above crimes.25
    There is probable cause to believe that the wiretap will actually lead law enforcement to overhear particular communications concerning the illegal activity.26

  2. There is probable cause to believe that the place where the wire is located is being used or will be used to commit the crime, or else belongs to or is commonly used by the person whose communications will be intercepted.27 AND
  3. Normal investigative procedures that don't rely 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 tried.28

For example, if the police have reason to believe that a major bank robbery is about to take place, and a wiretap of a certain phone would almost certainly give them the evidence they need to arrest the ringleader and stop the robbery...they still will not be able to get an order authorizing the wiretap, because robbery is not one of the specified crimes.

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Orders allowing wiretaps don't stay valid for very long. The maximum length of time an order may be in effect is ten (10) days from the date of the order, or thirty (30) days from the date communication was first intercepted...whichever comes first.29 (It is not uncommon for cops to set up a wiretap first, and then go to a judge for an order authorizing it, which will make the evidence from it admissible.) Police can then file for an extension of the original order, which can't last longer than another thirty (30) days.30

Just how often do police actually succeed in getting court authorization for a wiretap? The criteria are strict...but it seems as if once the basic criteria (such as type of crime) are met, it's not at all hard for cops to get orders authorizing wiretaps. In 2011, California judges authorized 630 wiretaps.31 (The overwhelming majority of these were for drug crimes .32 ) AND, nationwide, of over 2,700 applications for wiretaps submitted in all state and federal courts, only TWO were not granted!33 So clearly courts are not shy about granting these requests when cops make them.

2.2. Notice

If law enforcement officials apply for an order authorizing a wiretap that will intercept your communications, they are required to notify you in most cases...even if the application was rejected.34 The notice is not required until after the authorized period for the wiretap is over. And the only information it needs to contain is the date of the order authorizing the wiretap, the period during which the wiretapping was authorized, and whether or not communication was actually intercepted.35

According to Lancaster criminal defense attorney John Murray:36

"If you receive a notice telling you that phone calls you've been part of have been wiretapped, that notice won't necessarily tell you anything about what happened on those calls...or even what the supposed crime was that the police were trying to investigate. You CAN file a motion with the judge who granted the wiretapping order, asking to inspect whatever portions of the original application, the order, and the intercepted communications the judge sees fit to allow. But there's no guarantee the judge will honor your request."

However, if you are charged with a crime after being identified by a wiretap, the prosecution is required to give you a copy of all recorded communications from which evidence against you was derived, along with the original application and order.37 In most cases, you have the right to receive these materials not less than ten (10) days before the trial or proceeding in which wiretap evidence will be used.38

2.3. Motions to suppress illegal wiretap evidence

If you are accused of a crime, and evidence obtained from a wiretap is introduced against you...and it is not clear that all of the requirements we just discussed for law enforcement use of wiretap evidence were met...then you can file a Penal Code 1538.5 "Motion to Suppress Evidence." Motions to Suppress Evidence are most commonly used to throw out evidence that police obtain when they violate California search and seizures laws39 ...but motions to suppress can also be used to challenge wiretap evidence.40

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You can challenge wiretap evidence on the grounds that it was obtained without a valid court order...or, more likely, that the court order was improperly granted. For example, the court's finding that normal investigation methods were not likely to succeed or would be too dangerous might have been invalid.41 An experienced California criminal defense lawyer can help you determine what kind of argument might make the most sense in the context of your case.

3. Wiretaps of prisoners' telephone calls

If you have been arrested and are in police custody, or you are serving time for an offense, you should be aware of special rules that apply to wiretapping of prisoners' telephone calls and eavesdropping on their conversations.

First of all, it is a felony for anyone (including jail staff) to use an electronic device to eavesdrop on or record any conversation between someone who is in custody of law enforcement (i.e., a prisoner) and the following individuals:

  1. The prisoner's lawyer,
  2. The prisoner's religious advisor, and
  3. The prisoner's licensed physician.42

It is also a crime, but only a wobbler, for anyone to eavesdrop without an electronic device on conversations between a prisoner and any of those people...provided that those conversations occur in a place where there's a reasonable expectation of privacy, like a custody holding room.43

In other words, you have a very solid right to talk to your lawyer, religious advisor, or doctor while you are in prison, without anyone listening in.

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But the situation is different with regard to phone calls you make to people other than these. If you are in prison, you will likely be warned that all outgoing telephone calls you make will be recorded. This is absolutely true. And as long as the calls don't involve confidential conversations with, say, your lawyer, they can be used as evidence against you in your criminal proceeding.44

Example: David is arrested on charges of domestic violence against his girlfriend, Mary. While he is in jail awaiting his trial, David calls Mary many times, and they talk about the events that led to the charges. The jail has a sign next to the phone warning inmates that their calls may be monitored and recorded, with the name of the phone company-AT&T-by the sign. The conversations between David and Mary are recorded, and the prosecution uses them as evidence against David.

This evidence is admitted at David's trial, because he was warned that his calls could be recorded....even though the name of AT&T on the sign may have led him to believe that it was the phone company, and not jail authorities, that might record his calls.45

Finally, the general rule making wiretapping a crime under Penal Code 631 does not apply to telephone calls over a phone system that is used exclusively within a jail or prison.46 So, in other words, it is not a crime for a person to tap a phone line that can be used only for calls within a jail or prison (and not for outside calls).

Call us for help...
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If you or loved one has been wiretapped and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Legal References:

1 See Privacy Rights Clearinghouse, Fact Sheet 9: Wiretapping and Eavesdropping on Telephone Calls.

2 Penal Code 631 PC - Wiretapping. ("a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment in the county jail or pursuant to subdivision (h) of Section 1170. If the person has previously been convicted of a violation of this section or Section 632, 632.5, 632.6, 632.7, or 636, he or she is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.")

3 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.

4 Penal Code 631 PC - Wiretapping.

5 Penal Code 633 PC - Law enforcement officers; authorized use of electronic, etc., equipment. ("Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits the Attorney General, any district attorney, or any assistant, deputy, or investigator of the Attorney General or any district attorney, any officer of the California Highway Patrol, any chief of police, assistant chief of police, or police officer of a city or city and county, any sheriff, undersheriff, or deputy sheriff regularly employed and paid in that capacity by a county, police officer of the County of Los Angeles, or any person acting pursuant to the direction of one of these law enforcement officers acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record prior to the effective date of this chapter. Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders inadmissible any evidence obtained by the above-named persons by means of overhearing or recording any communication that they could lawfully overhear or record prior to the effective date of this chapter.")

See also Penal Code 629.52 PC - Order authorizing wiretapping; required findings; specified offenses.

6 Penal Code 631 PC - Wiretapping. ("a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment in the county jail or pursuant to subdivision (h) of Section 1170. If the person has previously been convicted of a violation of this section or Section 632, 632.5, 632.6, 632.7, or 636, he or she is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.")

7 Based on People v. Snowdy, (1965) 237 Cal.App.2d 677, 681. ("[California's wiretapping law] applies to all persons, including subscribers. Telephone lines and equipment belong to the telephone company. The customer of the company buys service; he has no right to trespass upon the property of the company. Any connection made with a line of the company, without the consent of the company, is unauthorized. The holding in Trieber is summarized as follows: "Even if the line to which the connection is made should lead only to his station it would not be reasonable to allow the subscriber alone to authorize connections unknown to the company for the additional reason that he does not have exclusive use of this line. Other persons communicating over the line from an outside telephone are also within the protection of [the wiretapping law], but they would not be protected if the subscriber alone could authorize a connection.")

8 Penal Code 632.5 PC - Cellular radio telephone interceptions; application of section. ("(a) Every person who, maliciously and without the consent of all parties to the communication, intercepts, receives, or assists in intercepting or receiving a communication transmitted between cellular radio telephones or between any cellular radio telephone and a landline telephone shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), by imprisonment in the county jail not exceeding one year or in the state prison, or by both that fine and imprisonment. If the person has been previously convicted of a violation of this section or Section 631, 632, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year or in the state prison, or by both that fine and imprisonment.")

Penal Code 632.6 PC - Cordless or cellular telephones; interception or receipt of communications without consent; punishment; exceptions. ("(a) Every person who, maliciously and without the consent of all parties to the communication, intercepts, receives, or assists in intercepting or receiving a communication transmitted between cordless telephones as defined in subdivision (c), between any cordless telephone and a landline telephone, or between a cordless telephone and a cellular telephone shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has been convicted previously of a violation of Section 631, 632, 632.5, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.")

9 Same.

10 Penal Code 631 PC - Wiretapping. ("a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment in the county jail or pursuant to subdivision (h) of Section 1170. If the person has previously been convicted of a violation of this section or Section 632, 632.5, 632.6, 632.7, or 636, he or she is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.")

11 Same.

12 Same. See also Penal Code 1170(h) PC - Determinate sentencing. ("(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.")

13 Penal Code 631 PC - Wiretapping. ("a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment in the county jail or pursuant to subdivision (h) of Section 1170. If the person has previously been convicted of a violation of this section or Section 632, 632.5, 632.6, 632.7, or 636, he or she is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.")

See also Penal Code 632 - Eavesdropping on or recording confidential communications; Penal Code 632.5 - Cellular radio telephone interceptions; application of section; and Penal Code 632.6 - Cordless or cellular telephones; interception or receipt of communications without consent; punishment; exceptions.

14 Penal Code 631 PC - Wiretapping. ("(c) Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.")

15 Penal Code 637.2 PC - Civil action by person injured; injunction. ("(a) Any person who has been injured [a wiretap] may bring an action against any person who committed the violation for the greater of the following amounts: (1) Five thousand dollars ($5,000). (2) Three times the amount of actual damages, if any, sustained by the plaintiff. (b) Any person may, in accordance with Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a). (c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.")

16 Same.

17 Same.

18 Penal Code 632 PC - Eavesdropping on or recording confidential communications. ("a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records 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 device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.")

19 People v. Ratekin, (1989) 212 Cal.App.3d 1165, 1168. ("Section 631 prohibits 'wiretapping,' i.e., intercepting communications by an unauthorized connection to the transmission line. Section 632 prohibits 'eavesdropping,' i.e., the interception of communications by the use of equipment which is not connected to any transmission line. In order to violate section 631 it is necessary that the intercepted communication be carried over '... telegraph or telephone wire, line, cable, or instrument of any internal telephonic communication system....' No such limitation is found in section 632.")

20 Penal Code 632 PC - Eavesdropping on or recording confidential communications. ("a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records 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 device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.")

21 Same.

22 Penal Code 633 PC - Law enforcement officers; authorized use of electronic, etc., equipment. ("Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits the Attorney General, any district attorney, or any assistant, deputy, or investigator of the Attorney General or any district attorney, any officer of the California Highway Patrol, any chief of police, assistant chief of police, or police officer of a city or city and county, any sheriff, undersheriff, or deputy sheriff regularly employed and paid in that capacity by a county, police officer of the County of Los Angeles, or any person acting pursuant to the direction of one of these law enforcement officers acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record prior to the effective date of this chapter. Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders inadmissible any evidence obtained by the above-named persons by means of overhearing or recording any communication that they could lawfully overhear or record prior to the effective date of this chapter.")

See also Penal Code 629.88 PC - Construction and application of this chapter with other laws. ("Nothing in Section 631, 632.5, 632.6, or 632.7 shall be construed as prohibiting any peace officer or federal law enforcement officer from intercepting any wire or electronic communication pursuant to an order issued in accordance with the provisions of this chapter. Nothing in Section 631, 632.5, 632.6, or 632.7 shall be construed as rendering inadmissible in any criminal proceeding in any court or before any grand jury any evidence obtained by means of an order issued in accordance with the provisions of this chapter. Nothing in Section 637 shall be construed as prohibiting the disclosure of the contents of any wire or electronic communication obtained by any means authorized by this chapter, if the disclosure is authorized by this chapter. Nothing in this chapter shall apply to any conduct authorized by Section 633.")

23 Penal Code 629.52 PC - Order authorizing interception [wiretapping]; required findings; specified offenses. ("Upon application made under Section 629.50, the judge may enter an ex parte order, as requested or modified, authorizing interception of wire or electronic communications initially intercepted within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines, on the basis of the facts submitted by the applicant, all of the following: (a) There is probable cause to believe that an individual is committing, has committed, or is about to commit, one of the following offenses: (1) Importation, possession for sale, transportation, manufacture, or sale of controlled substances in violation of Section 11351, 11351.5, 11352, 11370.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code with respect to a substance containing heroin, cocaine, PCP, methamphetamine, or their precursors or analogs where the substance exceeds 10 gallons by liquid volume or three pounds of solid substance by weight. (2) Murder, solicitation to commit murder, a violation of Section 209, or the commission of a felony involving a destructive device in violation of Section 18710, 18715, 18720, 18725, 18730, 18740, 18745, 18750, or 18755. (3) Any felony violation of Section 186.22. (4) Any felony violation of Section 11418, relating to weapons of mass destruction, Section 11418.5, relating to threats to use weapons of mass destruction, or Section 11419, relating to restricted biological agents. (5) An attempt or conspiracy to commit any of the above-mentioned crimes. (b) There is probable cause to believe that particular communications concerning the illegal activities will be obtained through that interception, including, but not limited to, communications that may be utilized for locating or rescuing a kidnap victim. (c) There is probable cause to believe that the facilities from which, or the place where, the wire or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the person whose communications are to be intercepted. (d) Normal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous.")

24 Same. ("Upon application made under Section 629.50, the judge may enter an ex parte order, as requested or modified, authorizing interception of wire or electronic communications [a wiretap] initially intercepted within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines, on the basis of the facts submitted by the applicant, all of the following: (a) There is probable cause to believe that an individual is committing, has committed, or is about to commit, one of the following offenses: (1) Importation, possession for sale, transportation, manufacture, or sale of controlled substances in violation of Section 11351, 11351.5, 11352, 11370.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code with respect to a substance containing heroin, cocaine, PCP, methamphetamine, or their precursors or analogs where the substance exceeds 10 gallons by liquid volume or three pounds of solid substance by weight. (2) Murder, solicitation to commit murder, a violation of Section 209, or the commission of a felony involving a destructive device in violation of Section 18710, 18715, 18720, 18725, 18730, 18740, 18745, 18750, or 18755. (3) Any felony violation of Section 186.22. (4) Any felony violation of Section 11418, relating to weapons of mass destruction, Section 11418.5, relating to threats to use weapons of mass destruction, or Section 11419, relating to restricted biological agents. (5) An attempt or conspiracy to commit any of the above-mentioned crimes.")

25 Same.

26 Same. ("Upon application made under Section 629.50, the judge may enter an ex parte order, as requested or modified, authorizing interception of wire or electronic communications [a wiretap] initially intercepted within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines, on the basis of the facts submitted by the applicant, all of the following: . . . (b) There is probable cause to believe that particular communications concerning the illegal activities will be obtained through that interception, including, but not limited to, communications that may be utilized for locating or rescuing a kidnap victim.")

27 Same. ("Upon application made under Section 629.50, the judge may enter an ex parte order, as requested or modified, authorizing interception of wire or electronic communications [a wiretap] initially intercepted within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines, on the basis of the facts submitted by the applicant, all of the following: . . . (c) There is probable cause to believe that the facilities from which, or the place where, the wire or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the person whose communications are to be intercepted.")

28 Same. ("Upon application made under Section 629.50, the judge may enter an ex parte order, as requested or modified, authorizing interception of wire or electronic communications [a wiretap] initially intercepted within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines, on the basis of the facts submitted by the applicant, all of the following: . . . (d) Normal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous.")

29 Penal Code 629.58 - Period of authorization [for wiretapping]; extensions; termination; interpreters. ("No order entered under this chapter shall authorize the interception of any wire or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days, commencing on the day of the initial interception, or 10 days after the issuance of the order, whichever comes first. Extensions of an order may be granted, but only upon application for an extension made in accordance with Section 629.50 and upon the court making findings required by Section 629.52. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event any longer than 30 days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted so as to minimize the interception of communications not otherwise subject to interception under this chapter, and shall terminate upon attainment of the authorized objective, or in any event at the time expiration of the term designated in the order or any extensions. . . .")

30 Same.

31 Administrative Office of the United States Courts, 2011 Wiretap Report, at Table 1.

32 Same, at Table 3.

33 Same, at Table 7.

34 Penal Code 629.68 - Inventory regarding intercepted communications; service on named parties. ("Within a reasonable time, but no later than 90 days, after the termination of the period of an order or extensions thereof, or after the filing of an application for an order of approval under Section 629.56 which has been denied, the issuing judge shall issue an order that shall require the requesting agency to serve upon persons named in the order or the application, and other known parties to intercepted communications, an inventory which shall include notice of all of the following: (a) The fact of the entry of the order. (b) The date of the entry and the period of authorized interception. (c) The fact that during the period wire or electronic communications were or were not intercepted. The judge, upon filing of a motion, may, in his or her discretion, make available to the person or his or her counsel for inspection the portions of the intercepted communications, applications, and orders that the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge, the serving of the inventory required by this section may be postponed. The period of postponement shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted.")

35 Same.

36 Lancaster criminal defense attorney John Murray defends clients throughout Los Angeles and Ventura counties. He has scored "not guilty" verdicts in serious sex crimes and DUI cases. Murray has been featured as an expert legal commentator on the Fox News Channel.

37 Penal Code 629.70 - Notification to defendant; providing defendant copy of recorded interceptions; evidentiary or other use; transcript furnished to parties; order limiting disclosures. ("(b) Within the time period specified in subdivision (c), the prosecution shall provide to the defendant a copy of all recorded interceptions from which evidence against the defendant was derived, including a copy of the court order, accompanying application, and monitoring logs.")

38 Same. ("(c) Neither the contents of any intercepted [wiretapped] wire or electronic communication nor evidence derived from those contents shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding, except a grand jury proceeding, unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a transcript of the contents of the interception and with the materials specified in subdivision (b). This 10-day period may be waived by the judge with regard to the transcript if he or she finds that it was not possible to furnish the party with the transcript 10 days before the trial, hearing, or proceeding, and that the party will not be prejudiced by the delay in receiving that transcript.")

39 Penal Code 1538.5 - Motion to return property or suppress evidence. ("a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable. (B) The search or seizure with a warrant was unreasonable because any of the following apply: (i) The warrant is insufficient on its face. (ii) The property or evidence obtained is not that described in the warrant. (iii) There was not probable cause for the issuance of the warrant. (iv) The method of execution of the warrant violated federal or state constitutional standards. (v) There was any other violation of federal or state constitutional standards.")

40 See, e.g., People v. Ratekin, (1989) 212 Cal.App.3d 1165.

41 See, e.g., People v. Zepeda, (2001) 87 Cal.App.4th 1183, 1195-1207 (in which the defendant unsuccessfully makes this argument on appeal).

42 Penal Code 636 PC - Eavesdropping or recording conversation between prisoner and attorney, religious adviser, or physician; offenses; exceptions. ("(a) Every person who, without permission from all parties to the conversation, eavesdrops on or records, by means of an electronic device, a conversation, or any portion thereof, between a person who is in the physical custody of a law enforcement officer or other public officer, or who is on the property of a law enforcement agency or other public agency, and that person's attorney, religious adviser, or licensed physician, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170.")

43 Same. ("(b) Every person who, intentionally and without permission from all parties to the conversation, nonelectronically eavesdrops upon a conversation, or any portion thereof, that occurs between a person who is in the physical custody of a law enforcement officer or other public officer and that person's attorney, religious adviser, or licensed physician, is guilty of a public offense. This subdivision applies to conversations that occur in a place, and under circumstances, where there exists a reasonable expectation of privacy, including a custody holding area, holding area, or anteroom. This subdivision does not apply to conversations that are inadvertently overheard or that take place in a courtroom or other room used for adjudicatory proceedings. A person who is convicted of violating this subdivision shall be punished by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail for a term not to exceed one year, or by a fine not to exceed two thousand five hundred dollars ($2,500), or by both that fine and imprisonment.")

44 People v. Windham, (2006) 145 Cal.App.4th 881, 893. ("The recording [through a wiretap] of Windham's calls would have been lawful before the effective date of the Privacy Act because he impliedly consented to the recording and because they were the unprivileged calls of a jail inmate. Under section 633, Windham's motion to suppress the recordings was properly denied.")

45 Based on the facts of the same.

46 Penal Code 631 - Wiretapping. ("(b) This section shall not apply . . . (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.")

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