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Illegal Audio Recording

PC 632 Law & Defense

In California, it is illegal to wiretap the communications of another person without the other person's consent or without court order. It is also illegal to record another person's audio communication without the other person's consent or court order.

Wiretapping (PC 631)

Wiretapping means to use a device, commonly called a bug or spy ware, to eavesdrop on another person's conversation or electronic communication.

Wiretaps can be secretly placed on just about anything, including phones, walls, vehicles, computers, people, etc. Wiretaps can be stationary, such as a bug placed in a flower at an office, or mobile, such as a bug sewn into a woman's purse or on her cell phone.

Wiretapping is never legal for private citizens. Law enforcement may use wiretaps in limited situation when there is a valid warrant supported by probable cause that authorizes the law enforcement agency to wiretap. Evidence obtained by police as a result of wiretapping without a warrant is illegal evidence and may not be used against the defendant in a criminal case.

Unauthorized Audio Recordings (PC 632)

Recording the audio communications or conversations of another person without a court order or the other person's consent is illegal in California. The law on unauthorized audio recordings is found at penal code 632.

Unauthorized audio communication means recording another person's voice without the other person's consent or knowledge. However, if the recording is not directed at a particular person there is no violation of PC 632. For example, a recording of an open and public event with people talking in the background is not illegal pursuant to PC 632 because the recording is not directed towards any particular person.

Law enforcement may record the communications between two people without a warrant if the police officers reasonably believe that the communication will lead to probable cause to believe that a crime is about to be committed or that a particular crime has already been committed, and only if the law enforcement agency has the consent of one of the parties to the conversation.

The most commonly recorded conversations by law enforcement is between defendants and victims of crime. In the most common scenario, the alleged victim of a crime is contacted by police and asked to perform a pretext phone call (pretext meaning the conversation is somewhat scripted). Law enforcement's goal when using recorded pretext phone calls is obtain an apology confession from the defendant towards the alleged victim or to acknowledge the allegations against the defendant by the alleged victim. Recorded pretext calls are common in domestic violence and child molestation cases. 

Unauthorized audio recordings by private citizens is illegal without a court order and any evidence obtained as a result of the unauthorized audio recording may not be used in any civil or criminal proceedings. Private citizens audio recording other private citizens is most commonly found in divorce and child custody proceedings. A private citizen may record the audio communication of another person without consent so long as a court has previously granted permission.

 

Note: Court orders for permission to audio record another person is common in civil and criminal domestic violence cases (PC 632).

If a person reasonably should know that he or she is being recorded than they do not need to grant express consent to audio record. For example, if a person places a recorder in front of another person and says "I want to record this conversation" then the fact that the other person does not object is equal to the other person's consent. Implied consent is most commonly demonstrated every time a person leaves a recorded message on an answering machine.

Exceptions: PC 633.5 allows for audio recording of another person without consent in limited situations. These situations include phone harassment by the person recording the harassment and any recording of a communication relating to the crime of extortion, bribery, kidnapping, or any felony involving serious violence against the person recording the communication or his or her family (PC 632, 633.5 & 653m).

Punishment

PC 631, illegal wiretapping, may be charged as a misdemeanor or as a felony. When illegal wiretapping is charged as a misdemeanor the defendant may face up to one year in the county jail. When illegal wiretapping is charged as a felony the defendant may face up to three years in jail.

PC 632, eavesdropping, also known as unauthorized audio recording or recording a conversation without consent, may also be charged as a misdemeanor or as a felony. When PC 632 is charged as a misdemeanor the defendant may face up to one year in the county jail. When PC 632 is charged as a felony the defendant may face up to three years in jail.

Note: In some cases of PC 631 or 632 it may be possible to receive a probation only sentence (no jail but supervision). In other cases a suspended sentence or split sentence may also be possible (PC 1170(h)).

In addition to any probation or jail sentence, if convicted of illegal wiretapping or unauthorized audio recording, the defendant will also suffer collateral consequences, including, harsh probation or parole terms, fines, restitution, restraining orders, immigration consequences for non-United States citizens, professional licensing consequences for licensed professionals, enhanced penalties for future crimes, and more.

Defenses to PC 631 or 632

 

Every criminal case is different and therefore every defense is different; however, common defenses to a charge of illegal wiretapping or audio recording without consent include: insufficient evidence to prove all of the elements of the charge, mistake of fact (did not know the recorder was operating), statute of limitations, consent, intoxication, PC 633.5 exceptions (see above), coerced confessions, and more.

If you or a loved one is charged with a violation of California PC 631, illegal wiretapping, or PC 632, unauthorized audio recording without consent, contact our criminal defense attorneys without delay and for a free consultation. Call Today!

909-913-3138​

Quick Reference​ Sheet

Crime: Illegal Audio Record of Confidential Communication

Code: PC 632

Wobbler: PC 632 is a wobbler crime. PC 632 This may be charged as a felony or as a misdemeanor.

Incarceration:Felony PC 632 jail sentence range: 16 months, 2 or 3 years jail (if probation not granted). Misdemeanor jail sentence up to 1 year.

Probation: Probation is allowed in felony and misdemeanor PC 632 cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.​

Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.

PC 1170(h)): Yes. PC 632 is subject to PC 1170(h) sentencing. This means that any jail or prison sentence may be:

  • Split (half in-custody / half out-of-custody)

  • Suspended (possibly never served)

  • Served in county jail (not state prison)

  • Note: Limitations may apply

Strike: PC 632 is not a strike offense listed in California's Three Strikes law.

Credits: 50% good conduct credits available.

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Firearms: Felony PC 632 convictions prohibit a defendant from owning or possessing a firearm. 

Bail: $25,000 (Felony); $5,000 (Misdemeanor) (San Bernardino)

Note: More penalties, direct or indirect, may apply. This info is created for that purpose only; accuracy is not guaranteed. No attorney/client relationship is formed by use of this info. If arrested or charged with a crime contact a lawyer without delay. 

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