California Penal Code Section 632 PC: Eavesdropping

1. Definition and Elements of the Crime

The California legislature has drafted laws intending to protect the privacy rights of its citizens. Under California Penal Code Section 632 PC, it is a crime to commit certain types of eavesdropping offenses. While overhearing a conversation in a restaurant would not be against the law, there are situations in which eavesdropping can lead to serious criminal penalties.

In order to prove that a defendant has committed eavesdropping pursuant to California Penal Code Section 632 PC, a prosecutor must establish the following elements:

1. The defendant intentionally eavesdropped or recorded a conversation
2. At least one party did not consent to the eavesdropping or recording of the conversation
3. The conversation is one that would be considered confidential
4. AND the eavesdropping was committed using an electronic amplification device or a recording device.

2. Related Offenses

Similar offenses include the following:

1. Wiretapping - California Penal Code Section 631 PC

3. Examples

A man is in his office late one night when two coworkers enter the office building. They do not realize the first man is there and they begin to discuss personal plans regarding an ongoing affair they are having. The first man remains quiet and listens to the entire conversation. This man could not be prosecuted for eavesdropping, because while he did listen to a confidential conversation, he did not do so intentionally or with the assistance of a recording or amplifying device.

In a similar example, the man knows that these coworkers meet in the office late at night to discuss their affair and illegal activities they are involved in, including an embezzlement scheme targeted at the company. Even though the man’s eavesdropping was intentional, he still would not be criminally liable because he did not use a recording or amplifying device to assist him.

In a final example, the same man has heard his coworkers discuss their embezzlement scheme and wants to have evidence to provide to his boss. One night, he sets up a hidden microphone and recording device to catch the coworkers discussing the embezzlement scheme. The man checks the tape the next day and finds that it recorded a complete conversation in which his coworkers openly discuss illegal activities. In this situation, the man could be prosecuted for eavesdropping under California Penal Code Section 632 PC, because he intentionally recorded a private conversation without consent. The fact that the man was trying to help the company would not be a defense to eavesdropping. In fact, the incriminating tape produced could not be used in any court of law, except to assist in the man’s eavesdropping prosecution.

4. Defenses to Eavesdropping

As described above, one cannot be prosecuted for eavesdropping if he or she did not intend to overhear or record a conversation or if he or she listened in on a private conversation but did not use any device to amplify or record it. In addition, there is one limited situation where a person is permitted to record a conversation without consent. If a person has a valid restraining or protective order issued by court, he or she is allowed to record a conversation of someone violating that order. The recording can then be used in any prosecution for violating a restraining order pursuant to California Penal Code Section 273.6 PC.

5. Penalties

Eavesdropping is considered a “wobbler” offense, which means that it can be charged as either a felony or a misdemeanor. When making a filing decision, prosecutors will review factors such as the factual circumstances of the offense and the defendant’s criminal history. If charged as a misdemeanor, a defendant can be sentenced to up to a year in jail and a maximum fine of $2,500. If charged as a felony, the defendant can be sentenced to up to three years in prison and a $2,500 maximum fine. If the defendant has a prior conviction for eavesdropping or for a related crime, such as wiretapping, intercepting a cell phone call or intercepting a cordless phone call, the maximum fine increases to $10,000.

6. Criminal Defense for Eavesdropping

If you have been charged with eavesdropping, it is critical that you speak with a Los Angeles Criminal Defense Lawyer right away. Los Angeles Criminal Defense Attorney Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience who knows how to effectively fight charges of this nature. Mr. Kraut is a dedicated advocate who works hard to ensure the best outcome possible for his clients.

For more information about eavesdropping, and to schedule your free consultation, contact Los Angeles Criminal Defense Attorney Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.