Wednesday, August 6, 2008

Law and Argument: California Electronic Eavesdropping Law

II. Law and Argument: California Electronic Eavesdropping Law

The relevant portion of California Penal Code §632 states:

§ 632. Eavesdropping on confidential communication; Punishment

(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... shall be punished...

(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.

(Emphasis supplied.)

California Penal Code § 633 creates an exception for law enforcement:

§ 633. Lawful Activity of Law Enforcement Officer

Nothing in Section... 632 [forbidding electronic eavesdropping],... 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, 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.

Pursuant to statutory interpretation by subsequent case law, in California warrantless electronic eavesdropping is authorized where an informant has given voluntary consent and is acting at the direction of one of the law enforcement officers enumerated above. See People V. Towery, 174 Cal.App.3rd 1114, 220 Cal.Rptr. 475 (1985).

In California, Courts analyze whether informant consent is voluntary after the electronic eavesdropping has occurred and factors to consider are whether the informant approached the police or the police approached the informant, whether the informant is motivated by his own present or potential legal problems, whether immunity or other promises have been made by authorities and whether promises or pressure were applied by the police. See ld. at 1124.

3 is an appendix containing the applicable California electronic intercept law for the Court’s convenience, California Penal Code § 632 and 633 and case law referred to in this Brief.

4 phrase “prior to the effective date of this chapter” refers to part 1, title 15, chapter 1.5 of the California Penal Code, which sets forth California’s Invasion of Privacy Act. The effective date of chapter 1.5 was November 8, 1967. See People v. Chavez, 44 Cal 4 1144, 52 CaL.Rptr.2d 347 (1996) citing 49 West’s Ann.Pen.Code (1988 ed,) Effective Dates of Laws, p. XXI.