In California, it is usually illegal to secretly record another person's audio, voice, or communication without the consent of the person whose audio, voice, or communication is recorded. The law on illegal audio recording, also known as recording another person's audio without consent, is found at California penal code section 632.

 

Illegal Voice Recording: Unauthorized audio or voice communication means recording another person's voice without the other person's consent or knowledge and without a court order or other legal justification.

 

Note: If the recording is not directed at a particular person there is not usually a 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.

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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.

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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. 

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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).

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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.

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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).

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Recording without Consent Punishment

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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.

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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.

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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)).

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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.

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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.

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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!

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909-913-3138​

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