Unlawfully listening in on other people’s private conversations is a crime. If you are facing an illegal wiretapping, video surveillance, or any similar offense, it is highly recommended you get a defense attorney as soon as you can.
Having a conviction on your permanent criminal record will hurt your future, regardless of whether you faced a misdemeanor or felony. A criminal record can cause problems with employment prospects, academic pursuits, and can even affect your housing opportunities.
For a more comprehensive view of what this law entails, take a look at how California defines eavesdropping.
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Legal Definition for Eavesdropping
California outlines what it means to eavesdrop under Penal Code 632. This law states it is a crime to listen in on or record other people’s confidential communications. PC 632 outlines that you break this law if you:
- Intentionally eavesdropped, monitored, or recorded another person’s conversation,
- Intent means you knowingly and purposely listened in on their phone call, conversation, or other communication.
- You used an electronic device to record it,
- Devices include a cell phone, microphone, laptop computer, telephone, telegraph, or other digital or electronic recording devices.
- This conversation is considered private and confidential, AND
- Those individuals who were talking had a reasonable expectation that their private conversation was not or could not be overheard or recorded.
- You did not have the legal consent of all parties involved in the conversation.
- Anyone who was speaking or present during the reasonably private conversation is considered the “parties” involved.
- Consent means you need their permission to listen or record them.
What is confidential communication?
There are specific details that have to be present for communication to be considered private and confidential. One aspect is that you and other parties had an apparent and reasonable expectation that you were not being overheard or recorded.
For instance, a phone call at a private residence is confidential. A conversation that takes place between several people while inside the home is a private discussion. One of the most common examples of confidential communication is one that takes place between co-workers in an office with the door shut.
A conversation that would not be considered private or confidential is one that can be easily overheard by others. A discussion that takes place while dining-out at a crowded restaurant, for example, would not be considered confidential. Talking with your supervisor while the office door is wide-open or speaking on the phone while in a busy grocery store are also examples of non-confidential communication.
What is two-party consent?
California is a two-party consent state, which means all parties involved in the eavesdropped communication need to have given their permission to be recorded. Even if one person consents to the eavesdropping, if other involved parties did not give their express permission, then the discussion cannot legally be recorded.
There are moments when consent to getting recorded is not needed. Dialogue that takes place in a public space would not be considered confidential. Such instances include speaking with someone while at a government proceeding or in a public park.
Discussions that would not be considered confidential communication includes:
- A supervisor talks with an employee while in the hallway outside their office.
- City council members have a meeting in a busy restaurant.
- The management team speaks openly while in the employee break room.
- A couple of people are overheard talking in a parking lot with the windows of their car completely rolled down.
- Some friends sit down at a public park bench and have a conversation.
Closely Related Offenses
The following are just some of the commonly associated offenses to PC 632, eavesdropping. If you are facing more than one offense, get a professional defense attorney who can help fight the allegations. Multiple convictions will lead to consecutive sentencing and higher fines.
California Penal Code 518 – Extortion Laws;
Otherwise known as blackmail, you commit this crime if you use force or threats to compel another person to give you money, property, or to make them perform a task they do not want to do.
California Penal Code 591 – Damaging a telephone line;
You violate this crime if you maliciously damage, break, remove, disconnect, or obstruct any wires or equipment related to telephone, cable, or electrical services.
California Penal Code 591.5 – Damaging a communication device, intending to prevent help;
This statute makes it a crime to maliciously injure, obstruct, or damage a communication device intending to prevent someone from using it to get help.
California Penal Code 602 – Trespassing;
This crime is committed when someone enters or remains on another person’s property without their express permission or the right to be there.
California Penal Code 631 – Wiretapping;
This statute prohibits the act of using a recording device to directly tap into another person’s phone line to listen to their private communications.
California Penal Code 647(i) – Spying while loitering;
Peeking into an inhabited dwelling or building while loitering on private property is a crime.
California Penal Code 647(j) – Criminal invasion of privacy;
It is illegal to invade another person’s privacy by secretly watching, recording, or photographing them.
What The Prosecution Must Do
Several factors must be proven beyond a reasonable doubt before the prosecution can get a conviction for eavesdropping under PC 632. These facts are also known as the:
Elements of the Crime
- The defendant intended to eavesdrop on a private conversation,
- They used an electronic device to listen in,
- This conversation is considered confidential, and
- The defendant did not have the consent of the parties involved in the discussion.
The only time PC 632, eavesdropping, is not considered a crime is when state or federal law enforcement officers do it. However, they can only listen in on a conversation when they are acting in an official capacity.
Who Can Face Charges
The examples below illustrate who can face a PC 632 offense for unlawfully eavesdropping. If you or someone you know can relate to any of the following situations, finding a skilled criminal defense lawyer needs to be a priority.
Example 1:
Pete was a voyeur, often watching and listening in on the couple next door when they would forget to shut their curtains or leave the window open. He placed a discreet GoPro camera on his fence, making sure it faced his neighbors’ bedroom window. The camera would pick up audio and video recordings of the couple having intimate relations and conversations.
Although the camera was on his property, it was used to unlawfully record his neighbors’ private interactions in their bedroom. Pete would be guilty of PC 632, eavesdropping.
Example 2:
Ron, a police officer, was jealous that his ex-girlfriend, Nina, was dating someone. He wanted to keep track of her activities, so he planted an audio recording device in her apartment and a GPS tracker in her car. Regardless of whether he was on duty or not, he would find the time to follow her around town. She became increasingly afraid for her safety when she would see him almost everywhere she went.
Ron would be guilty of eavesdropping PC 632, for unlawfully recording his ex-girlfriend. He could also face charges for unlawfully entering her apartment to commit a crime. By planting the illegal recording device, it could result in a charge for PC 459, burglary. Entering another person’s property with the intent to commit a crime is considered burglary.
Ron could also face a PC 646.9, stalking offense for putting a GPS tracker on her car and following her around town. However, this would only apply if the Nina was being harassed or threatened to the extent that she feared for her safety.
Example 3:
Dennis wanted a promotion and would try anything to get it, including showering his boss with gifts and even blackmail. He gave his boss a paperweight and a couple of expensive pens. Dennis made sure the weight and the pens had hidden cameras that could record audio and video.
His boss placed the weight on the desk in his office, left one pen in his home-office, and would carry around the other pen in his suit. Dennis was listening in on all his boss’s confidential conversations and would be guilty of eavesdropping, PC 632.
Legal Defense
Having the right legal representation could make an impact on the outcome of your case. It could mean the difference between facing the worst possible consequences or getting the minimum penalties.
An expert criminal defense attorney will have a thorough understanding of the most common legal defenses used to oppose a PC 632 offense. Here are just some of the common legal arguments used to fight an eavesdropping charge.
Was it a confidential communication?
If the conversation or discussion being overheard had no reasonable expectation of privacy, then you should not be guilty of eavesdropping.
Example:
Sonja was eating brunch at a coffee shop, using her phone to record herself. The coffee shop supervisor was interviewing someone at the table next to her. They accused her of eavesdropping.
Sonja would not be guilty of PC 632, because the coffee shop was open to the public and not considered an area where a private, confidential conversation could be had.
Did you intend to eavesdrop?
If you did not purposely record someone’s private conversations, then you lack the intent to eavesdrop on them. Intent to unlawfully record another person’s confidential discussions is one of the main elements of the crime. Lack of intent means you should not guilty of violating PC 632.
Example:
Sharon was making her first home video of her new residence. While walking around her backyard, she overheard a private conversation from her neighbors. Their kitchen window as open. When the neighbors looked through the window and saw her holding the camera, they accused her of eavesdropping and peeping in them.
Sharon did not intend to illegally record her neighbors’ conversation nor was she spying on them. Luckily, her recording had a time-stamp and captured everything she was doing including narrating the video the whole time.
Were you using an electronic recording device?
While eavesdropping means you are listening in on another person’s private conversation, you must have also used some type of recording device to be charged under PC 632.
Example:
Tyler stood outside his boss’s window, just out of sight, and eavesdropped on the private discussions going on. He got caught and was disciplined. His boss tried to pursue PC 632 charges, however, Tyler did not use any device to record the conversations. His case does not meet all the elements of the crime and Tyler would not face this offense.
Was your eavesdropping an exception?
There are civil exceptions to eavesdropping. Under PC 632, listening in on a private discussion using an electronic device is authorized if it can be used as evidence. If law enforcement is using a private citizen to record a conversation, it typically happens when felonies or violent crimes have been or are about to be committed. These type of crimes include, but are not limited to:
- Bribery – PC 67;
- Criminal conspiracy – PC 182;
- Murder – PC 187 ;
- Kidnapping – PC 207;
- Extortion – PC 518;
Helping to commit felonious or violent crimes by:
- Aiding and abetting – PC 31;
- Accessory after the fact – PC 32;
Example:
Micheal was a key witness in an investigation against his boss, Bob for murder. He had overheard a conversation in which his boss admitted to kidnapping and murdering his ex-wife. Micheal had reported this to law enforcement. As part of a missing person’s investigation and possible homicide, they asked Micheal to develop a friendship with his boss and record any confessions. Eventually, his boss felt comfortable enough to admit his crimes which Micheal recorded on his cell phone.
Bob tried to argue the recording was inadmissible because he did not consent to be recorded. However, Micheal was part of a criminal investigation in which Bob was the prime suspect of kidnapping PC 207 and murder PC 187. Micheal would not face a PC 632 offense as his eavesdropping is the exception when it is authorized by law enforcement.
Penalties for PC 632
Eavesdropping is known as a wobbler in California. This means the prosecution can pursue either a misdemeanor or felony charge.
If convicted of misdemeanor eavesdropping, you could face;
A possible one(1) year in county jail, and/or
Fines as high as two-thousand-five-hundred ($2,500) dollars.
The penalties for a felony eavesdropping conviction are;
A potential state prison sentence of up to three(3) years, and/or
Possible fines of up to two-thousand-five-hundred ($2,500) dollars.
Enhanced Penalties
The punishments can increase, depending on the specifics of your case. For example, you would face additional penalties if you had violated any other laws to eavesdrop. If any of the following offenses were committed on top of PC 632, you would most likely face enhanced felony consequences.
- Trespassing or breaking and entering a residence or business to plant a recording device,
- damaged any telephone or communication device, or
- used the audio recording in a blackmailing scheme such as extortion.
Facing multiple charges will mean longer jail or prison sentences and much higher fines without the possibility of getting an expungement.
What is an expungement?
Under California Penal Code 1203.4, a defendant who completes their jail term or probation can appeal for an expungement. This means the court will approve the defendant’s request to remove their plea of guilty or no contest and switch to a new plea of not guilty, allowing the dismissal of the case altogether. An example would be if:
- a defendant entered no contest for a PC 632 charge,
- They are convicted of misdemeanor eavesdropping, and
- They serve their full one-year county jail sentence, then
- Upon conclusion of their incarceration, they may petition the court for an expungement.
The possibility of a full dismissal of the case from one’s record depends solely on the details of your case. If multiple offenses played a role in your situation, an expungement may not be considered.
Penalties For Closely Related Offenses
California Penal Code 518 – Extortion Laws;
Felony;
A potential state prison sentence of four years, and/or
Up to ten thousand dollars ($10,000) in fines.
California Penal Code 591 – Damaging a telephone line;
Misdemeanor;
Summary(informal) probation,
Up to one year in county jail, and/or
Fines of up to one thousand ($1,000) dollars.
Felony;
Formal(felony) probation,
A 16-month, 2 or 3-year sentence in county jail, and/or
Fines as high as ten thousand ($10,000) dollars.
California Penal Code 591.5 – Damaging a communication device, intending to prevent help;
Misdemeanor;
Informal(misdemeanor) probation,
A potential sentence of one year in county jail, and/or
Up to one(1) thousand dollars in fines.
California Penal Code 602 – Trespassing;
Infraction;
1st offense is a seventy-five dollar fine,
2nd offense is a two-hundred-fifty dollar fine.
Misdemeanor;
Summary(misdemeanor) probation,
As long as six months in the county jail, and/or
Fines as high as one thousand dollars.
Misdemeanor for aggravating factors;
Informal(summary) probation,
As long as one year in the county jail, and/or
Fines of up to two thousand dollars.
Felony;
Formal(felony) probation,
16 months, 2 or 3 years in county jail.
California Penal Code 631 – Wiretapping;
Misdemeanor;
A possible one year in county jail, and/or
Maximum fines of up to two thousand dollars.
Felony;
A 16-month, 2 or 3-year county jail sentence, and/or
Maximum fines of up to ten thousand dollars.
California Penal Code 647(i) – Spying while loitering;
Misdemeanor;
Informal(misdemeanor) probation,
A county jail sentence of up to six months, and/or
Fines as high as one thousand dollars.
California Penal Code 647(j) – Criminal invasion of privacy;
Misdemeanor 1st offense;
Up to six months in the county jail, and/or
A possible one thousand dollars in fines.
Misdemeanor 2nd offense;
County jail sentence increases to one year, and/or
Fines double to two thousand dollars.
Call Us For Help
Are you or someone you care about facing charges for PC 632, eavesdropping? Whether you are in the greater San Diego area, Los Angeles County, or Orange County, contact the Law Offices of Anna R. Yum. Attorney Yum has an impressive record of delivering effective criminal defense. You can expect an aggressive fight for your rights and your future.
You do not have to face these allegations alone. Let us help. To schedule a no-obligation, free consultation, you can call us at 619-233-4433 or use our online contact form.
