Eavesdropping

A California Penal Code 632 charge is more serious than most people think. It is not just eavesdropping on a conversation, but a criminal act that can significantly affect your life. A conviction may scar your permanent record, costing you future employment, academic pursuits, and housing.

At the Law Offices of Anna R. Yum, we understand how overwhelming it can feel to face such allegations. Read along to learn how California defines eavesdropping, the potential penalties, and the defense strategies available to protect your rights if arrested in San Diego.

What is Eavesdropping Per PC 632?

Eavesdropping on or recording other people’s private conversations is a crime in California, as the Penal Code 632 stipulates. This law will not allow you to intercept confidential communication by using an electronic amplifying or recording device to record the communication without the consent of all parties. This applies to face-to-face, telephone, or other electronic communication. The initial step in creating a defense is to understand the nuances of this law.

What the Prosecution Must Prove

The prosecutor must prove all elements of the crime to have the state convict you of eavesdropping. They are not allowed just to level an allegation; they must provide evidence to prove every point beyond a reasonable doubt. The whole charge falls when they cannot establish even one element.

You Intentionally Recorded or Eavesdropped

The initial element that a prosecutor has to prove is your mental condition. The recording or listening had to be deliberate. This implies that you made a choice and a conscious effort to record the conversation. The law is not meant to penalize accidental intrusions into privacy but intentional ones.

An example would be that you were recording your child at a birthday party, and your phone accidentally recorded a confidential conversation at the following table in a restaurant; you probably did not do so deliberately. You were not there to spy on people, but to film the party.

But when you intentionally tilted your phone to that table to listen to what was being said, then your action is intentional. The prosecution must present evidence demonstrating that you were aware of your actions and did it willingly to record or listen in on the communication. The charge cannot be maintained without evidence of this particular intent.

You Operated an Electronic Device

The second factor is technical and essential: the eavesdropping should have been done with the help of an electronic amplifying or recording device. Penal Code 632 is not a statute against merely overhearing. It is particularly aimed at the invasion of privacy using technology. This covers a broad spectrum of modern and conventional equipment, including a smartphone, a digital voice recorder, a microphone, a laptop computer with recording software, or even a wiretap.

You do not break this law by merely overhearing a confidential conversation using a thin wall or an open door with your naked ear. Although your behavior may be deemed rude or inappropriate, it does not fall under the legal definition of eavesdropping under PC 632 since you did not use an electronic device. The prosecutor has to show that a device was utilized, either the device itself, a digital recording file, or testimony of witnesses who have seen you use such a device.

The Conversation was Confidential in the Legal Sense

The third factor is the legal nature of the conversation itself. The communication should have been confidential and shielded. This is not based on what the people were discussing but on the situation they were discussing. A conversation is legally confidential when a reasonable person in that context would have expected it to be confidential and not overheard or recorded by another person.

This is the most critical factor of a reasonable expectation of privacy. A conversation in a closed office with a closed door is confidential. A telephone conversation in the privacy of one’s home is also assumed to be confidential. Conversely, a conversation conducted at a normal level in a busy public setting, such as a busy coffee shop, a park, or a sports stadium, would not be deemed confidential.

In such environments, a normal human would anticipate being overheard by others. The prosecution has to demonstrate that the location and conditions of the discussion provided the participants with a reasonable expectation of privacy.

You Lacked the Legal Consent of All Parties

Lastly, the prosecution has to demonstrate that you did not do it with the consent of all the parties to the conversation. California is an all-party consent or two-party consent state. This is a strict rule. This implies that to legally record a confidential conversation, you have to seek the consent of every person talking.

The recording cannot be done with only one person’s consent, including yours. When you have three individuals in a conference call, you must have the agreement of all three to record the call legally. If a single individual refuses, the recording is unlawful. This is usually a bone of contention in the eavesdropping cases.

The prosecution has to show that a negative exists, that one or more participants did not provide this necessary consent. If your defense proves consent was obtained, even verbally, the charge should be dropped.

What Constitutes a Confidential Communication?

The key to any eavesdropping case is a confidential communication. A conversation is confidential when the facts show that one or both parties had a reasonable expectation that the conversation was not being overheard or recorded. This is an objective criterion, implying that it is not only what a man thought subjectively, but what a sensible man could expect in the same circumstances.

An example of this would be a discussion between two executives in a closed-door office, which would be confidential. Similarly, a personal call made in a personal residence has a high expectation of privacy. On the other hand, a heated debate amid a busy restaurant or a conversation on a bench in a park where different people can easily eavesdrop would not be confidential. The particular setting and surroundings of the discussion are essential in making this decision.

What Is California’s “Two-Party Consent” Rule?

An essential feature of the California eavesdropping statute is that it is a two-party or “all-party consent” state. This implies that you must seek the consent of all the individuals involved in the discussion to record it legally. The other myth is that when you participate in the discussion, you have the right to record the conversation.

This is not so in California. Although one of the parties may consent to recording, the recording is unlawful when the other party in the same conversation does not. This high standard is meant to safeguard the privacy of individuals and makes California different from most other states, which only require one-party consent.

Penalties for a PC 632 Conviction

The effects of an eavesdropping conviction are dire and may have long-term consequences on your life. The law takes this crime seriously and offers criminal and civil consequences that may affect your liberty, wealth, and future. Understanding the value of a strategic legal defense is essential to recognizing the full extent of what you are up against.

Misdemeanor and Felony Punishment

Eavesdropping under PC 632 is a wobbler, i.e., the prosecution may charge it as a misdemeanor or a felony. This is usually determined by the details of your case and your criminal record.

In case of a misdemeanor eavesdropping conviction, you may be imprisoned in county jail for up to a year and fined up to $2,500. When the crime is filed as a felony, the consequences are much more serious, and the accused may face up to three years of state prison and a fine of up to $2,500. In the case of individuals who have previously been convicted of eavesdropping or other privacy crimes, the maximum fine may increase to $10,000 per offense.

Civil Penalties Under PC 637.2

Outside the criminal courtroom, a PC 632 charge subjects you to severe civil liability. According to the California Penal Code 637.2, the individual whose conversation you have recorded may sue you in a civil court to recover damages. This is a potent weapon in the hands of the alleged victim because they can sue for triple the amount of any real damages they may have incurred or $5,000 per violation, whichever is higher.

More importantly, the law provides that the plaintiff is not required to have incurred any real economic damages to file this suit. This implies that they may sue you and receive up to 5000 dollars per conversation recorded illegally, even though the recording did not affect their finances. These civil penalties can add up very fast and place a significant financial burden in addition to any criminal penalties.

Is It Possible to Expunge an Eavesdropping Conviction?

To the individuals convicted of eavesdropping, the chance of expungement is a way of having a new beginning. You can set your conviction aside and dismiss the case under California Penal Code 1203.4, provided you have served your probation or jail sentence.

An expungement frees you of most of the penalties and disabilities of a conviction, which can be crucial to getting a job or a professional license. If you were incarcerated in a state prison on a felony conviction, it would be more complicated, but there is a chance that newer laws regarding automatic relief could help.

It is necessary to mention that expungement does not completely remove the record. Still, it does enable you to legally say that you have not been convicted of that crime in most cases, including when filling out a job application.

Building a Strong Defense Against Eavesdropping Charges

When you are accused of eavesdropping, you are not necessarily convicted. Several strong legal defenses are outlined in the law, and a skilled criminal defense lawyer can carefully examine the facts of your case to dispute the prosecution’s allegations. Your defense is founded on reviewing each aspect of the supposed crime and finding the flaws in the case against you.

The Communication Was Not Confidential

Arguing that the conversation was not confidential is one of the most effective defense strategies. As explained, PC 632 only safeguards communications with a reasonable expectation of privacy. If your lawyer can prove that the conversation took place where it could be easily overheard, for example, a busy cafe, a park, or a busy corridor, then a key aspect of the crime is absent.

For example, if you were filming a video in a public square and your device happened to capture a conversation that was happening nearby, the prosecution would have a hard time claiming that those people had a reasonable expectation of privacy.

You Did Not Have The Intent to Eavesdrop

Intent is a key component of an eavesdropping charge. The prosecution has to demonstrate that you deliberately and knowingly went out to make a recording of a private conversation. If the recording was inadvertent, you cannot be convicted.

For example, suppose you are recording a home video to capture a family event in your backyard, and your camera captures your neighbors arguing through their open window. In this case, your lawyer might claim that you did not intend to eavesdrop on their personal conversation and, as such, did not break the law.

All Parties Gave Consent

If you were authorized by all parties to record the conversation, this is a full defense against a charge of eavesdropping. The all-party consent rule in California is strict, yet if you can prove that all the parties were aware of the recording and agreed to it, the case of prosecution cannot be continued. Consent does not need to be in writing; it can be verbal. However, it may be challenging to prove that consent was given; thus, having a clear record or witness to the deal is good.

No Electronic Device was Utilized

Penal Code 632 is very particular in its language: the crime is committed when you use an electronic amplifying or recording device. This implies that eavesdropping on a conversation using your unaided ears is not a crime under this statute, even when you did it deliberately.

For example, you would not violate PC 632 if you stood outside your boss’s office door and listened to a confidential conversation without using any device to record or amplify the conversation. Although other problems may be caused by such action, it fails to qualify as this type of criminal offense.

Exemptions to the California Eavesdropping Law

Although the eavesdropping laws in California are strict, there are specific and limited exceptions under which recording a confidential communication without the parties’ consent may be legally permissible. These exceptions are not loopholes but are statutorily defined circumstances in which the act of recording is acceptable because of overriding public safety or law enforcement interests.

Law Enforcement Activities

The restrictions of PC 632 do not usually apply to law enforcement officers who are in their official capacity. Police are allowed to tap into a conversation that is considered to be in the privacy of the home in a criminal investigation. Still, they must do so with specific legal procedures, including getting a warrant.

Recordings made on these legal tapes can be used in court. This exception is also applicable in cases where the police permit a non-police officer, a witness, or an informant to record a conversation with a suspect to obtain evidence.

Collecting Evidence of a Violent Crime

The California law also makes a critical exception when private citizens are parties to a conversation. You are legally allowed to record a confidential communication under Penal Code 633.5 as long as you are doing so to obtain evidence that you reasonably believe is relevant to the other party committing a serious or violent crime.

The crimes included in this exception are enumerated and include extortion, kidnapping, bribery, human trafficking, and any felony committed against you that involves violence, such as domestic violence or assault. When you record a conversation in such a case, you cannot be charged with eavesdropping, and the recording can also be used in court as evidence against the other party.

Eavesdropping PC 632 and Related Offenses

When you are charged with eavesdropping, it is unlikely that that charge will be in a vacuum. The steps taken to record a person usually entail the illegal violation of other laws. A prosecutor often piles on charges and charges every conceivable criminal count that the evidence could support. This tactic adds to the legal pressure and the possible punishment you may face. Thus, learning more about these related crimes is essential to evaluating your case and developing a full-scale defense.

Wiretapping, Penal Code 631

The offense most closely related to eavesdropping is wiretapping, which is a different crime. According to Penal Code 631, wiretapping is a person deliberately tapping a telephone or telegraph line to intercept a communication as it is being relayed. The most crucial distinction is the approach.

Eavesdropping under PC 632 records a conversation at either the source or destination of the conversation, for example, a recorder in a room. On the other hand, wiretapping is the interception as it passes through the wire. Wiretapping, like eavesdropping, is a wobbler and can be charged as a misdemeanor or a felony, with comparable fines and possible jail terms.

Trespassing, Penal Code 602

This is one of the most frequent accompanying charges. Trespassing is going on or staying on another person’s property without their permission or the legal right to do so. This charge is commonly charged together with eavesdropping in instances where an individual has unlawfully entered a home, office, or vehicle to install a recording device.

As another example, suppose you sneaked into a coworker’s office after hours and placed a microphone under their desk so that you could record the conversation. You would be charged with eavesdropping (on the recording) and trespassing (on the unlawful entry).

Criminal Invasion of Privacy, Penal Code 647(j)

This crime shifts to visual privacy. PC 647(j) makes it a crime to peep into a private room through a hole or opening. It also makes it a crime to use a device, such as a hidden camera or smartphone, to watch or record a person in a location where the person has a reasonable expectation of privacy, usually to see the body or undergarments of the person.

Assuming that an individual installed a concealed camera in a bathroom that also captured sound, they may be prosecuted on a criminal invasion of privacy charge on the video and an eavesdropping charge on the audio.

Peeking While Loitering, Penal Code 647(i)

Like a criminal invasion of privacy, this statute is aimed at peeping. An individual commits PC 647(i) when they loiter on private property and peep into the doors or windows of an occupied building. Whereas eavesdropping is about listening, peeking is about watching. But these are usually the same course of conduct. An individual outside a window to eavesdrop on a conversation may be charged with peeking simultaneously, resulting in the two charges.

Extortion, Penal Code 518

Blackmail, also called extortion, is a serious felony. You commit this crime when you use force or threats to make someone pay you money, give you property, or do an official act. The threat is usually made with the help of an illegal recording.

Suppose you surreptitiously tape a confidential conversation and then blackmail the person by threatening to publish the tape unless they pay you off; you would be charged with both eavesdropping and extortion. Felony extortion may lead to a long prison term.

Stalking, Penal Code 646.9

Stalking is a course of conduct that is intentional and malicious and causes another person to reasonably fear his or her safety or the safety of his or her family. One of the tactics used in stalking is eavesdropping.

For example, when an individual stalks their former partner by following them, sending unwanted messages, and installing a listening device in their vehicle to record their conversations, the eavesdropping is included in the bigger crime of stalking. A stalking charge relies on proving a pattern of behavior, and an illegal recording can be a strong piece of evidence on the prosecution’s side.

Book a Consultation With a Criminal Lawyer Near Me

The stakes are incredibly high when you or a loved one has been accused of eavesdropping under Penal Code 632. A conviction comes with the baggage of jail or prison, hefty fines, civil suits, and a criminal record that may haunt you the rest of your life. You need not, and you must not, fight these charges alone.

If facing charges in San Diego, get immediate legal assistance. A skilled criminal defense lawyer can be the only thing between you and the prosecution, and he or she can defend your rights, reputation, and future. At the Law Offices of Anna R. Yum, we can build a defense strategy specific to your case’s facts. Contact us today at 619-493-3461 to arrange a free, no-obligation consultation to discuss your situation.