Calguns.net  

Home My iTrader Join the NRA Donate to CGSSA Sponsors CGN Google Search
CA Semiauto Ban(AW)ID Flowchart CA Handgun Ban ID Flowchart CA Shotgun Ban ID Flowchart
Go Back   Calguns.net > SPECIALTY FORUMS > Calguns LEOs
Register FAQ Members List Calendar Mark Forums Read

Calguns LEOs LEOs; chat, kibitz and relax. Non-LEOs; have a questions for a cop? Ask it here, in a CIVIL manner.

Reply
 
Thread Tools Display Modes
  #1  
Old 06-24-2013, 11:01 AM
Dantedamean's Avatar
Dantedamean Dantedamean is offline
Senior Member
 
Join Date: Apr 2012
Posts: 2,257
iTrader: 1 / 100%
Default Recording phone calls with LEO/detectives

Long story short my mom has a DV RO against my dad, he's violated it several times but because of his past LEO career nothing ever comes of it.

My mom filed a police report for stalking recently, my question is this: is it legal to record the conversation with the LEOs/Detective/DA she talks to on the phone? Does she need to notify them she is doing so?

Thanks.

Last edited by Dantedamean; 06-24-2013 at 11:56 AM..
Reply With Quote
  #2  
Old 06-24-2013, 11:21 AM
mej16489 mej16489 is offline
Senior Member
 
Join Date: Aug 2008
Location: SoCal
Posts: 1,920
iTrader: 3 / 100%
Default

In CA recording a phone conversation requires consent of all parties on the line.

Penal Code
632.
(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.
Reply With Quote
  #3  
Old 06-24-2013, 11:32 AM
Heiko's Avatar
Heiko Heiko is offline
Senior Member
 
Join Date: Jul 2008
Posts: 1,027
iTrader: 37 / 100%
Default

Aside from the above legal limitations, I would not respond well to someone wanting to record our telephone conversation considering they are the alleged victim. I would be suspicious of them and be wary of their potential for filing a complaint against me for some silly thing, especially if they feel like things aren't going their way and with DV/family issues/ROs, they aren't always what they seem according to the "victim".

That's just me though.
Reply With Quote
  #4  
Old 06-24-2013, 11:54 AM
Dantedamean's Avatar
Dantedamean Dantedamean is offline
Senior Member
 
Join Date: Apr 2012
Posts: 2,257
iTrader: 1 / 100%
Default

Quote:
Originally Posted by mej16489 View Post
In CA recording a phone conversation requires consent of all parties on the line.

Penal Code
632.
(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.
Ok thanks, I didn't know if interactions with law enforcement were different or not.
Reply With Quote
  #5  
Old 06-24-2013, 1:12 PM
Che762x39 Che762x39 is offline
Senior Member
 
Join Date: Aug 2011
Posts: 1,829
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Dantedamean View Post
Long story short my mom has a DV RO against my dad, he's violated it several times but because of his past LEO career nothing ever comes of it.

My mom filed a police report for stalking recently, ...
The way to resolve a DV with a former cop is call repeatly. If she keeps calling Bubba and Bubba was you Dad's best friend, d'oh

Talk to Bubba's supervisor, then Watch Commander, then Chief ... If you do not get satisfraction keep calling and add the Mayor, Congressperson, etc, etc.

The squeeky wheel gets the grease. So squeek! At my department that would not happen because we live to a much higher standard, saavy?
Reply With Quote
  #6  
Old 06-24-2013, 1:33 PM
philobeddoe's Avatar
philobeddoe philobeddoe is offline
Senior Member
 
Join Date: Aug 2007
Location: Venice
Posts: 1,920
iTrader: 17 / 100%
Default

ex parte recording illegal in CA

must inform other party they are being recorded



____________
ΜΟ;ΛΩΝ ΛΑΒΕ;
Reply With Quote
  #7  
Old 06-24-2013, 1:41 PM
RickD427's Avatar
RickD427 RickD427 is offline
Veteran Member
 
Join Date: Jan 2007
Location: King County
Posts: 3,996
iTrader: 5 / 100%
Default

Quote:
Originally Posted by CPRAFAN View Post
Visit www.carlosmiller.com Cops have no reasonable expectation of privacy with performing public duties, so can be photographed etc.
This is true concerning the expectation of privacy in a public place, but also irrelevant to the topic of discussion.

PC 632 still controls where telephone (not in a public place) conversation are involved.
Reply With Quote
  #8  
Old 06-24-2013, 1:42 PM
Heiko's Avatar
Heiko Heiko is offline
Senior Member
 
Join Date: Jul 2008
Posts: 1,027
iTrader: 37 / 100%
Default

Quote:
Originally Posted by CPRAFAN View Post
Visit www.carlosmiller.com Cops have no reasonable expectation of privacy with performing public duties, so can be photographed etc.
We're talking about a person-to-person telephone call, not something happening on the streets in public view.
Reply With Quote
  #9  
Old 06-24-2013, 2:26 PM
oddjob oddjob is offline
Senior Member
 
Join Date: Jan 2003
Location: Lodi, California
Posts: 1,880
iTrader: 20 / 100%
Default

OP,

Have your mom keep calling the local agency and document everything. Save the text messages, voice mails, notes, letters & etc. Have her contact the WEAVE type organization, victim witness group, or equivalent.

Che762x39 is quite correct in this matter. I would call the local councilperson, assembly person, congressperson.......Your mom should get the idea.

OP....How did your father violate the order?? Phone calls, unauthorized visits??
Reply With Quote
  #10  
Old 06-24-2013, 3:07 PM
Dantedamean's Avatar
Dantedamean Dantedamean is offline
Senior Member
 
Join Date: Apr 2012
Posts: 2,257
iTrader: 1 / 100%
Default

Quote:
Originally Posted by oddjob View Post
OP,

Have your mom keep calling the local agency and document everything. Save the text messages, voice mails, notes, letters & etc. Have her contact the WEAVE type organization, victim witness group, or equivalent.

Che762x39 is quite correct in this matter. I would call the local councilperson, assembly person, congressperson.......Your mom should get the idea.

OP....How did your father violate the order?? Phone calls, unauthorized visits??
Ya, our next step is going to start making a lot of noise.

He keeps harassing her outside of divorce court, he's smart enough to not do anything like call her because of the phone records. He finds her in the hall when she's relatively alone and tries to strike up conversations, calls her names, and even threatened to kill her. The sheriff had to detain him one time because he was so angry. It's a long story, but ya this has been going on for two years. The harassment is only the most recent stuff. The fact he's not in jail yet shows no one has really done anything.

As far as the watch commander goes, the ones at west Covina were just as helpful as the officers I was arguing with. I'm not bashing, there was one helpful officer but that's another long story.
Reply With Quote
  #11  
Old 06-25-2013, 10:37 AM
9mmepiphany's Avatar
9mmepiphany 9mmepiphany is offline
Calguns Addict
 
Join Date: Jul 2008
Location: River City
Posts: 7,439
iTrader: 1 / 100%
Default

Quote:
Originally Posted by Dantedamean View Post
He keeps harassing her outside of divorce court, he's smart enough to not do anything like call her because of the phone records. He finds her in the hall when she's relatively alone and tries to strike up conversations, calls her names, and even threatened to kill her. The sheriff had to detain him one time because he was so angry. It's a long story, but ya this has been going on for two years. The harassment is only the most recent stuff. The fact he's not in jail yet shows no one has really done anything.
You may have to check local court rules, but there are some exceptions to R.O.s when attending Family Court hearings
__________________
...because the journey is the worthier part...The Shepherd's Tale
Reply With Quote
  #12  
Old 06-25-2013, 12:50 PM
Caddis Caddis is offline
Member
 
Join Date: Feb 2013
Posts: 121
iTrader: 8 / 100%
Default

When you call a PD, most of the time your conversation is being recorded by them. Yes you can record public servants during the course of their duties and PC 632 is not applicable in the situation you described.
Reply With Quote
  #13  
Old 06-25-2013, 1:00 PM
RickD427's Avatar
RickD427 RickD427 is offline
Veteran Member
 
Join Date: Jan 2007
Location: King County
Posts: 3,996
iTrader: 5 / 100%
Default

Quote:
Originally Posted by Caddis View Post
When you call a PD, most of the time your conversation is being recorded by them. Yes you can record public servants during the course of their duties and PC 632 is not applicable in the situation you described.
Sir,

Can you provide a case citation to back this up? I beleive that you're mistaken here.

There have been court rulings that have clarified the right to record LEOs, however all of those cases have involved officers in public. None of the holdings that I am aware of have extended to private telephone conversations.

Until the scope of PC 632 is restricted by an authoritative ruling, it remains the law.
Reply With Quote
  #14  
Old 06-25-2013, 1:39 PM
DEPUTYBILL DEPUTYBILL is offline
Senior Member
 
Join Date: Mar 2007
Location: LODI,CA.
Posts: 703
iTrader: 1 / 100%
Default

If these events are happening in the court house, you might want to inform the supervising bailiff in the court house so all the court officer staff are made aware of what is going on. It might help stop or help document the problem that can then be addressed by the judge.
Reply With Quote
  #15  
Old 06-25-2013, 2:27 PM
Caddis Caddis is offline
Member
 
Join Date: Feb 2013
Posts: 121
iTrader: 8 / 100%
Default

RickD427

There is no reported California case law on this issue, so there is no definitive judicial interpretation of this specific question.

I make this argument based on the fact LEO's get recorded all the time such as youtube videos during the course of their duties but of course most of these in are out in public but there are with some in very private locations where an assumption can be made, the officer had an expectation of privacy but there are no recorded cases of prosecution.

This issue has come up with traffic stops where the violator records the officer without permission. The defense is he/she was collecting evidence in a criminal matter. The argument is the OP appears unhappy with the service they were receiving from their local PD and it sounds as though they were attempting to gather evidence for a possible complaint.

So to answer your question, no there isn't a specific exception allowing the recording of public servants anywhere and anytime. The langauge of a codified statute and the actual enforcement of it based on the elements of the violation is what it comes down and those in the LE business know what I mean here. No one as far as I know has ever been prosecuted for recording LEOs. Although the statute is not a "specific intent" crime, I made my original statement based on the reality of how that law would be applied and the PC 632 cases I investigated based on real life experience. Never had the DA file one either because they have no jury appeal.

Thanks for calling me on it though and hope this clarifies what I meant and should have original said.
Reply With Quote
  #16  
Old 06-25-2013, 2:51 PM
RickD427's Avatar
RickD427 RickD427 is offline
Veteran Member
 
Join Date: Jan 2007
Location: King County
Posts: 3,996
iTrader: 5 / 100%
Default

Caddis,

That's an excellent clarification. Thank you for providing it.
Reply With Quote
  #17  
Old 06-25-2013, 4:27 PM
tyrist tyrist is offline
Veteran Member
 
Join Date: Jun 2007
Posts: 4,554
iTrader: 0 / 0%
Default

No you cannot record them without notifying them.

There is probably much more to the situation and I doubt his past Law Enforcement Career has anything to do with it except he might be aware of the technicalities of the law.
Reply With Quote
  #18  
Old 06-25-2013, 4:51 PM
Caddis Caddis is offline
Member
 
Join Date: Feb 2013
Posts: 121
iTrader: 8 / 100%
Default

You cannot based on the "Letter of the law" but the "Spirit" of the law is the reality of enforcement and prosecution. There are numerous laws prohibiting committing or omitting some action, however, many are not enforceable based on the legislative intent and spirit in which it was originally enacted and case precedence.
Reply With Quote
  #19  
Old 06-25-2013, 7:42 PM
Ron-Solo's Avatar
Ron-Solo Ron-Solo is offline
Calguns Addict
 
Join Date: Jan 2009
Location: Arizona
Posts: 7,938
iTrader: 10 / 100%
Default

Quote:
Originally Posted by Caddis View Post
When you call a PD, most of the time your conversation is being recorded by them. Yes you can record public servants during the course of their duties and PC 632 is not applicable in the situation you described.
You are wrong. 100%. You can not record a phone conversation without notifying all parties involved. Person to person in a public place, go for it.

Thank you for playing.
__________________
LASD Retired
1978-2011




If You Heard The Shot, You Weren't The Target

Last edited by Ron-Solo; 06-25-2013 at 7:45 PM..
Reply With Quote
  #20  
Old 06-25-2013, 8:11 PM
SVT-40's Avatar
SVT-40 SVT-40 is offline
Calguns Addict
 
Join Date: Jan 2008
Location: Az
Posts: 7,433
iTrader: 18 / 100%
Default

You must remember it's not the police dept who is the decision maker related to the filing of charges. They take the reports and file them with the DA....It's the DA's office who is the ultimate decision maker whether the charges are filed and prosecution proceeds.

I have some experience with the West Covina DA's office in particular... My wife (also retired LEO) worked domestic violence as a detective for many years. Without severe extenuating circumstances WC would not file charges related to "minor" restraining order violations period, no exceptions. Even repeated violations. Unless there was some actual new case of DV, then maybe the DA's would file new charges...

Believe me my wife would get very frustrated because the victims of these violations would vent on her, blaming her for not doing anything...I would recommend if your mom wants to light a fire go with her to the DA's office in WC and make a stink....

Maybe your mom should get a personal recorder and wear it in public so when ever she is around your father she has actual evidence. Instead of the he said she said....

That might prompt the DA to file charges....
__________________
Poke'm with a stick!


Quote:
Originally Posted by fiddletown View Post
What you believe and what is true in real life in the real world aren't necessarily the same thing. And what you believe doesn't change what is true in real life in the real world.


Reply With Quote
  #21  
Old 06-25-2013, 8:11 PM
CalCop CalCop is offline
Senior Member
 
Join Date: Nov 2008
Location: Sacto Area
Posts: 573
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Caddis View Post
...the PC 632 cases I investigated based on real life experience. Never had the DA file one either because they have no jury appeal...
My experience was the same as Caddis. While I've only had one 632 case...the DA was not interested due to no expectation of privacy when the cop was dealing with a member of the public while performing his official duties.
__________________
"Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen."
-- Sir Robert Peel
Reply With Quote
  #22  
Old 06-25-2013, 8:20 PM
ke6guj's Avatar
ke6guj ke6guj is offline
Moderator
CGN Contributor
 
Join Date: Nov 2003
Location: 909
Posts: 23,281
iTrader: 42 / 100%
Default

Quote:
Originally Posted by Ron-Solo View Post
You are wrong. 100%. You can not record a phone conversation without notifying all parties involved. Person to person in a public place, go for it.

Thank you for playing.
AFAIK, if you call a company that states in the phone greeting that that they record all phone calls, you can then record the call yourself without having to inform them (make sure that you also record the message about them recording the call).
__________________
Jack



Do you want an AOW or C&R SBS/SBR in CA?

FrontSight Training Course certificates available $25, PM for details on them and other options.
No posts of mine are to be construed as legal advice, which can only be given by a lawyer.
Reply With Quote
  #23  
Old 06-25-2013, 11:11 PM
POLICESTATE's Avatar
POLICESTATE POLICESTATE is offline
I need a LIFE!!
 
Join Date: Apr 2009
Location: Sunnyvale, PRK
Posts: 17,862
iTrader: 25 / 100%
Default

"this call is being recorded for quality assurance purposes"
Reply With Quote
  #24  
Old 06-26-2013, 6:22 AM
ke6guj's Avatar
ke6guj ke6guj is offline
Moderator
CGN Contributor
 
Join Date: Nov 2003
Location: 909
Posts: 23,281
iTrader: 42 / 100%
Default

and since we know that 911 calls are being recorded, even if they don't tell us, I don't think it would be illegal to record such a call. the issue becomes if all calls to an LEA are recorded or not. I am not aware that that is the case, so you can't rely on that exemption.
__________________
Jack



Do you want an AOW or C&R SBS/SBR in CA?

FrontSight Training Course certificates available $25, PM for details on them and other options.
No posts of mine are to be construed as legal advice, which can only be given by a lawyer.
Reply With Quote
  #25  
Old 06-26-2013, 6:27 AM
CPRAFAN CPRAFAN is offline
Senior Member
 
Join Date: Nov 2012
Posts: 782
iTrader: 2 / 100%
Default Cop taping saved Parolee

Quote:
Originally Posted by Heiko View Post
We're talking about a person-to-person telephone call, not something happening on the streets in public view.
There was an article in California Lawyer a few years back about a parolee who taped all his phone calls to cops and his parole officer. Later the parole officer alleged that he had made threats on the phone and had him arrested - the charges were thrown out because he had taped all the phone calls and could prove the parole officer was lying. Looks to me like the Court implicitly accepted that public officers can be taped while they are on duty - saved that guy from being sent back to prison.
Reply With Quote
  #26  
Old 06-26-2013, 10:57 AM
Caddis Caddis is offline
Member
 
Join Date: Feb 2013
Posts: 121
iTrader: 8 / 100%
Default

It appears many comments on this thread are not from LEO's or those in the LE business.

You can read the langauge of a law all day long but the actual application and prosecution is another story. LEO's for example cannot be victims with many laws because we represent the state. It's not saying this in PC 632 but the reality is, its highly unlikely a DA is going to file if its during the course of your duty. PC 632 is a crime requiring a victim, not a crime against the state. Off duty is a different matter.

LEO's can enforce laws which are a crime against the state which we on-view. Most laws requires a private person to be a victim and most laws require a victim period. For example, a person cursing at a LEO is committing a disturbing the peace violation (PC 415) but we could not be a victim under these circumstances. A private person could be a victim if it was directed at him and could demand a private person arrest be made and the LEO would be just a witness if he on-viewed it. Another common one is annoying and harassing calls to a PD disptacher. This would be an enforceable violation if it was to a private person but because LE is a public servant, it's difficult to prosecute because LE is available and open to the public for telephone calls.

DA's generally do file charges with LEO's being a victim except for battery and serious assaults. Other than this, it comes with the job sort of like a dentist who has to smell bad breath all day.
Reply With Quote
  #27  
Old 06-29-2013, 9:54 PM
Caddis Caddis is offline
Member
 
Join Date: Feb 2013
Posts: 121
iTrader: 8 / 100%
Default

Meant to say DA's "do not" file charges with LEO's being a victim except for battery
Reply With Quote
  #28  
Old 06-29-2013, 11:24 PM
SonofWWIIDI's Avatar
SonofWWIIDI SonofWWIIDI is offline
I need a LIFE!!
 
Join Date: Nov 2011
Location: Santa Clara county
Posts: 18,737
iTrader: 4 / 100%
Default

Quote:
Originally Posted by Dantedamean View Post
Long story short my mom has a DV RO against my dad, he's violated it several times but because of his past LEO career nothing ever comes of it.

My mom filed a police report for stalking recently, my question is this: is it legal to record the conversation with the LEOs/Detective/DA she talks to on the phone? Does she need to notify them she is doing so?

Thanks.
Set up her voice mail recorder on her land line to continuously record (or do it through a computer). Let the machine answer all calls with a greeting to the effect of: "Hello, we're screening all of our calls, and all calls are recorded, please hang on. Thanks!" Make sure they always call you. If you must call them first, make sure that the recorded calls have that beeping sound, and tell them you are recording.

This should satisfy the notification requirement, and will probably keep any telemarketers/survey/solicitation callers at bay.
Reply With Quote
  #29  
Old 06-29-2013, 11:47 PM
Ninety's Avatar
Ninety Ninety is offline
Veteran Member
 
Join Date: Nov 2012
Location: OC , AZ
Posts: 3,971
iTrader: 7 / 100%
Default

I have always thought that if you take a call .. on speaker phone with someone else in the room.. The expectation of privacy is gone therefore you can record it.

Would the obvious sound and announcing that "this call is on speaker " remove the expectation of privacy?

example: Conference calls.. they are sometimes recorded.. but you aren't informed of it.. b/c there is no expectation of privacy.
__________________
NRA Member
The Constitution does not bestow wisdom. It's up to the body politic to be wise. -Patriot
All that is required for evil to prevail is for good men to do nothing.
-Edmund Burke
I'd much rather go to my grave never needing my gun, than go there wishing I had it.
- Phil Dalmolin

The Battle of Athens was illegal too.
Reply With Quote
  #30  
Old 06-30-2013, 7:33 AM
CalCop CalCop is offline
Senior Member
 
Join Date: Nov 2008
Location: Sacto Area
Posts: 573
iTrader: 0 / 0%
Default

PC 632(c) The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
__________________
"Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen."
-- Sir Robert Peel
Reply With Quote
  #31  
Old 06-30-2013, 8:02 AM
Dantedamean's Avatar
Dantedamean Dantedamean is offline
Senior Member
 
Join Date: Apr 2012
Posts: 2,257
iTrader: 1 / 100%
Default

Quote:
Originally Posted by CalCop View Post
PC 632(c) The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
Well in a communication with a officer I reasonably expect to be recorded.
Reply With Quote
  #32  
Old 06-30-2013, 7:23 PM
CalCop CalCop is offline
Senior Member
 
Join Date: Nov 2008
Location: Sacto Area
Posts: 573
iTrader: 0 / 0%
Default

Ninety,
The mere fact that use of a speakerphone is announced would not automatically mean the expectation of privacy is gone. If there is one person on one end, and two people on speaker on the other end, those three would likely expect the conversation to be private between the three individuals.

A conference call is a good example of something that could also go either way. Let's say the conference call is between 10 high level executives from the same company at 10 different locations, who are discussing important trade secrets regarding their company. These individuals have a reasonable expectation of privacy, and would reasonably expect the conversation was not recorded.

On the other hand, if two individuals are sitting in a busy restaurant having a discussion, it would not be reasonable for them to believe their conversation would not be overheard. Therefore, they have no reasonable expectation of privacy.
__________________
"Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen."
-- Sir Robert Peel
Reply With Quote
  #33  
Old 06-30-2013, 7:27 PM
CalCop CalCop is offline
Senior Member
 
Join Date: Nov 2008
Location: Sacto Area
Posts: 573
iTrader: 0 / 0%
Default

Dantedamean,
It is my personal opinion that any officer acting during the course and scope of his duties, whether in uniform or not, whether in public or not, has no reasonable expectation of privacy. I don't think a DA would likely prosecute you for recording a cop who is performing his official duties. But that is just my perception and understanding of the law, according to my personal LE experience.
__________________
"Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen."
-- Sir Robert Peel
Reply With Quote
  #34  
Old 06-30-2013, 8:08 PM
RickD427's Avatar
RickD427 RickD427 is offline
Veteran Member
 
Join Date: Jan 2007
Location: King County
Posts: 3,996
iTrader: 5 / 100%
Default

Quote:
Originally Posted by Caddis View Post
It appears many comments on this thread are not from LEO's or those in the LE business.

You can read the langauge of a law all day long but the actual application and prosecution is another story. LEO's for example cannot be victims with many laws because we represent the state. It's not saying this in PC 632 but the reality is, its highly unlikely a DA is going to file if its during the course of your duty. PC 632 is a crime requiring a victim, not a crime against the state. Off duty is a different matter.

LEO's can enforce laws which are a crime against the state which we on-view. Most laws requires a private person to be a victim and most laws require a victim period. For example, a person cursing at a LEO is committing a disturbing the peace violation (PC 415) but we could not be a victim under these circumstances. A private person could be a victim if it was directed at him and could demand a private person arrest be made and the LEO would be just a witness if he on-viewed it. Another common one is annoying and harassing calls to a PD disptacher. This would be an enforceable violation if it was to a private person but because LE is a public servant, it's difficult to prosecute because LE is available and open to the public for telephone calls.

DA's generally do file charges with LEO's being a victim except for battery and serious assaults. Other than this, it comes with the job sort of like a dentist who has to smell bad breath all day.
Caddis,

I agree with you that a D.A. would be very unlikely to file 632 PC charges against a person who unlawfully recorded an LEO. It just runs contrary to our principles of open government.

I once tried to file a "making a false report" charge against a person who falsely complained that a deputy sheriff beat him with his baton. The complainant had a number of bruises and had obviously been well beaten with an object similar to a baton. The deputy has just been to the person's home in response to a "family disturbance" call. At first, things didn't look too good for the deputy. I interviewed the complaint's brother who proudly claimed to have inflicted each bruise, explaining that his brother fought with him after the deputy left. I located three witness who clearly stated the deputy used no force while at the scene. The DA flatly refused to file stated they did want want to "chill" the making of complaints.

But folks should also be aware of Penal Code 637.2. This section allows victims of illegal recordings to seek $5,000.00 in civil court, without having to prove damages or three three times the amount of actual damages. Another tact would be for the offended officer to sue in small claims court for $5,000.00. That does a complete "end-run" around the D.A..

Here is the text of section 637.2 (emphasis added):
"637.2. (a) Any person who has been injured by a violation of this
chapter may bring an action against the 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."
Reply With Quote
  #35  
Old 06-30-2013, 8:44 PM
retiredAFcop retiredAFcop is offline
Senior Member
 
Join Date: Jan 2013
Location: East Bay
Posts: 2,016
iTrader: 0 / 0%
Default

Like many questions on this forum, LEOs are not the people you should really be asking. Ask a lawyer about the law.

Asking a cop about how they are likely to enforce the law is a good call (because that's their job), but for questions about what is or isn't legal, asking YOUR lawyer is probably a better option.
__________________
“Our lives begin to end the day we become silent about things that matter” ~ Martin Luther King, Jr.

If you are an American who is not subject to the UCMJ, then you are a civilian. It is disrespectful to our military members to claim otherwise.

Demanding that LEOs be held to a high standard of professional conduct is a show of respect for the LE profession. Let's all be respectful.
Reply With Quote
  #36  
Old 06-30-2013, 9:58 PM
cuchillo negro's Avatar
cuchillo negro cuchillo negro is offline
Member
 
Join Date: Jun 2013
Location: Indio, California
Posts: 141
iTrader: 0 / 0%
Default

Federal law permits one party to record a conversation without the consent of the other, while California law requires the consent of all parties.

The key provision is §631(a) which states, in part: “Any person who, by means of any machine, instrument or contrivance… intentionally taps, or makes any unauthorized connection, whether physically, electronically, 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…” is guilty of a crime.

Section 631 is often combined with 632(a) which states: “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 electronic device, except a radio…” shall be guilty of a crime.

In summary, to criminally violate 632 PC - A person must: eavesdrop on or record; a confidential communication; using an amplifying or recording device; and do so with intent to violate 632 PC

The only exemption from violating 632 PC if recording the conversation is to prove a crime. Private Citizens can get around the law against eavesdropping if they are recording conversations in order to gather evidence about certain kinds of crimes. This exception applies if:

1. The person doing the recording is one of the parties to the conversation, and
2. That person is recording the conversation in order to gather evidence that they reasonably believe is related to the commission, by the other party to the conversation, of one of the following crimes kidnapping, bribery, any felony involving violence against another such as murder
3. Annoying phone calls (Penal Code 653 (m) this less serious crime (Penal Code 653m) may not seem to fit in with the rest-but in fact it makes some sense to allow people who think they are receiving annoying telephone calls to record those calls for evidence.
Reply With Quote
  #37  
Old 07-02-2013, 5:46 AM
SonofWWIIDI's Avatar
SonofWWIIDI SonofWWIIDI is offline
I need a LIFE!!
 
Join Date: Nov 2011
Location: Santa Clara county
Posts: 18,737
iTrader: 4 / 100%
Default

I've been giving this some more thought. And I agree with CalCop:

Quote:
Originally Posted by CalCop View Post
Dantedamean,
It is my personal opinion that any officer acting during the course and scope of his duties, whether in uniform or not, whether in public or not, has no reasonable expectation of privacy. I don't think a DA would likely prosecute you for recording a cop who is performing his official duties. But that is just my perception and understanding of the law, according to my personal LE experience.
Here's why, if a LEO calls you, they are performing their duties in an office/cubicle in a publicly funded building, on a phone also publicly funded, on publicly funded time. If they call from a cell phone, unless they are calling on their own personal phone (which I don't think they would do, if you're a LEO and I'm wrong here please chime in), it is undoubtedly publicly funded. If they call you from their vehicle, it is probably a publicly funded car and not their personal car.

So, if a LEO in the performance of their duties in public, has no expectation of privacy, using publicly funded resources to conduct interviews, make appointments etc. should also be considered to be "in public".


Just my .02.
__________________
•=iii=<(
🎺

Dear autocorrect, I'm really getting tired of your shirt!
Quote:
Originally Posted by LugerDevil666 View Post
No more stupid threads. you have my word
Quote:
Originally Posted by LugerDevil666 View Post
Rule 1 I'll admit I'm a jerk when I post stupid thread.....
Quote:
Originally Posted by Helmut Shmacher View Post
I'll do the picking.. Name wise .. if you don't mind...
Formerly lugerdevil666
Reply With Quote
  #38  
Old 07-02-2013, 2:55 PM
RickD427's Avatar
RickD427 RickD427 is offline
Veteran Member
 
Join Date: Jan 2007
Location: King County
Posts: 3,996
iTrader: 5 / 100%
Default

Quote:
Originally Posted by SonofWWIIDI View Post
I've been giving this some more thought. And I agree with CalCop:



Here's why, if a LEO calls you, they are performing their duties in an office/cubicle in a publicly funded building, on a phone also publicly funded, on publicly funded time. If they call from a cell phone, unless they are calling on their own personal phone (which I don't think they would do, if you're a LEO and I'm wrong here please chime in), it is undoubtedly publicly funded. If they call you from their vehicle, it is probably a publicly funded car and not their personal car.

So, if a LEO in the performance of their duties in public, has no expectation of privacy, using publicly funded resources to conduct interviews, make appointments etc. should also be considered to be "in public".


Just my .02.
Sir,

You posting contains some original thought, but please read Katz v United States.

You appear to be arguing that since the LEO is using publicly funded sources to communicate, and is himself performing public duties, that the LEO is therefore in "Public." The U.S Supreme Court considered essentially the same questions in Katz and declined to accept that position.

Katz was a bookmaker who used a public telephone to run his bookie business. Officers made secret recording from a public position outside of the phone booth. During the appeal, the governments position was very similar to yours, the phone booth was in a public place, the recordings were made from outside the booth, no harm, no foul. The U.S. Supreme Court held that the Constitution protected people, not places, and that it was the expectation of privacy that controlled. If an LEO is working in a public building, talking on a publicly funded phone to a single person, with no one else in the conversation, there is a reasonable expectation of privacy. Now Katz, is a little different. The Constitution doesn't restrict the actions of a private person illegally recording an officer, but PC 632 defines the recording against the expectation of privacy as being a crime.

I agree with you, and CalCop, that a DA is probably not going to file charges on a 632 violation. The person making the recording should have little fear of going to jail. Having to write a $5,000 check to the officer is a much more likely outcome under PC 637.2. I do recall that section being successfully used many years ago where an officer illegally recorded a meeting with his captain during a labor issue. He wound up having to write the check.
Reply With Quote
  #39  
Old 07-02-2013, 4:35 PM
M1NM's Avatar
M1NM M1NM is offline
Veteran Member
 
Join Date: Oct 2011
Location: West Covina
Posts: 4,346
iTrader: 41 / 100%
Default

Every person who, intentionally and without the consent of all parties to a confidential communication.....................

I'd think Confidential - would refer to between you and your lawyer, doctor not a public servant who would be free to relate the conversation to anyone. I'd bet all the calls to the PD are taped - listen for the beep every few seconds to let you know it's being recorded.
__________________
Reply With Quote
  #40  
Old 07-02-2013, 5:34 PM
RickD427's Avatar
RickD427 RickD427 is offline
Veteran Member
 
Join Date: Jan 2007
Location: King County
Posts: 3,996
iTrader: 5 / 100%
Default

Quote:
Originally Posted by M1NM View Post
Every person who, intentionally and without the consent of all parties to a confidential communication.....................

I'd think Confidential - would refer to between you and your lawyer, doctor not a public servant who would be free to relate the conversation to anyone. I'd bet all the calls to the PD are taped - listen for the beep every few seconds to let you know it's being recorded.
PC 632(c) defines the term "Confidential Communication" much more broadly. Here is the text:
"(c) The term "confidential communication" includes any
communication carried on in circumstances as may reasonably indicate
that any party to the communication desires it to be confined to the
parties thereto, but excludes a communication made in a public
gathering or in any legislative, judicial, executive or
administrative proceeding open to the public, or in any other
circumstance in which the parties to the communication may reasonably
expect that the communication may be overheard or recorded."
Reply With Quote
Reply

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump



All times are GMT -8. The time now is 5:42 PM.




Powered by vBulletin® Version 3.8.9
Copyright ©2000 - 2016, vBulletin Solutions, Inc.
Proudly hosted by GeoVario the Premier 2A host.
Calguns.net, the 'Calguns' name and all associated variants and logos are ® Trademark and © Copyright 2002-2016, Calguns.net an Incorporated Company All Rights Reserved.