Electronic Eavesdropping/Air Surveillance
Category > Electronic Eavesdropping/Air Surveillance
Probation condition requiring minor to submit to a search of his electronics including passwords was unreasonable. The minor was found to have committed a petty theft. The court thereafter imposed a condition of probation that required him to permit searches of and disclose all passwords to his electronic devices and social media sites. However, the condition was unreasonable because there was no evidence connecting the juvenile’s electronic device or social media usage to his offense or to a risk of future criminal conduct.id: 24408
Supreme Court says using device to detect heat coming from home was a "search."Officers were suspicious that defendant was growing marijuana in his home in a triplex, so they used a thermal imaging device to scan the triplex to see if the heat emanating from it was consistent with the high intensity lamps typically used to grow marijuana indoors. The scan showed that defendant's garage roof and a side wall were hotter than the rest of his home and warmer than neighboring units. Based in part on this, a magistrate judge issued a search warrant, and the officers found marijuana. In <i>U.S. v. Kyllo</i> 190 F.3d 1041 (9th Cir. 1999), a divided Ninth Circuit panel held that using the device was not a "search." The Supreme Court granted certiorari, and in a 5-4 opinion written by Justice Scalia, the Supreme Court reversed, holding that "where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." Based on this test, the information obtained in this case by the thermal imager was a product of a search, even though it only detected heat radiating from the home's external surface.id: 16355
The trial court erred when it did not require the state to provide timely reports according to the wiretap statute and to file an application to use nontargeted intercepted communications as soon as practicable but the errors did not require reversal.When a defendant moves to suppress evidence on the grounds that the reports required under the wiretap statute, Penal Code section 629.60 were inadequate or untimely, the state has the burden of showing there was no error, the violation did not contravene the purpose of the statute or its purpose was achieved despite the error. The state must strictly comply with the requirements due to the privacy intrusion. During the pendency of the wiretap, the judge must closely monitor the state’s compliance with the authorization order to ensure the intercepted calls are properly minimized and to terminate the wiretap order if warranted. The judge must also maintain meticulous records. Moreover, the law requires court approval to use the intercepted communications related to certain offenses that were not the target of the wiretap order before those communications may be used in criminal proceedings. The present trial court erred when it did not consider the application to use the nontargeted intercepted calls and later when the omission was brought to its attention it did not make the required findings. However, the errors were harmless where the materials were legally intercepted, defendants were not surprised by the proposed use of the 11 calls, and they were given copies before the suppression hearing. id: 21586
Photographing the school principal's office without revealing the content of any conversation was not a recording of a "confidential communication" under the eavesdropping statute.A school superintendent was convicted of violating Penal Code section 632, subd.(a) (intentional eavesdropping upon or recording of a confidential communication), based upon the installation of a hidden video camera, without accompanying sound, of the area of the desk, computer, file cabinet and bookcase in the principal's office. However, the conviction was reversed because the photographing of a principal's office for a purpose and in a manner which did not reveal the content of any conversation, was not an intentional act of recording a "confidential communication" as those terms were used in section 632.id: 14881
A person who uses a false name to procure a cellular telephone has a privacy interest in his communications over that phone.Defendant had a reasonable expectation of privacy that his conversations would be private. The expectation of privacy in the contents of the telephone conversations does not become unreasonable just because the phone was procured using an alias. However, the denial of the suppression motion was proper due to the necessity for a wiretap based upon affidavits which specifically described the conspiracy under investigation.id: 18700
Police monitoring of a conversation after telling defendants they could talk privately required suppression.Police placed both defendants in an interview room and surreptitiously monitored and tape recorded the incriminating conversation. Where, as here, the police make an express representation that a conversation will be private, they create a legitimate and reasonable expectation of privacy and the surreptitious monitoring and recording of that conversation is violative of the Fourth Amendment. The trial court erred in refusing to suppress the evidence of the conversation between the defendants.id: 11209
Correctional officer's wiretap of his captain's clerk's phone while investigating possible crimes by two inmates violated federal wiretap laws.A correctional officer working with the institution's security squad was told by his captain to leave two inmates alone. The officer believed these inmates were smuggling narcotics into the prison and, acting on his own, placed a wiretap on the captain's clerk's hone. Suppression was required under the federal wiretapping statutes contained in 18 U.S.C. sections 2510-2521 and the trial court erred in finding the wiretap fell within the statutory exception for conduct in the ordinary course of law enforcement duties. A law enforcement purpose is not sufficient to satisfy the exemption. At a minimum the use of the wiretap must also be in the ordinary course of the officer's duties. Since the officer's wiretap of the captain's clerk's phone was not in the ordinary course of his duties the exception did not apply.id: 11205
Condo owner's consent to install video equipment did not authorize surveillance when he was not present.The government informant who owned the condominium in which defendant was staying was authorized to consent to a search of the premises. However, the informant also consented to the installation of video cameras. The search pursuant to the monitoring equipment was only valid while the informant was in the condo. Once he left the condo, defendant's Fourth Amendment rights were violated by continued video surveillance.id: 11141
Updated 3/4/2024The wiretap application was valid even though signed by the chief deputy DA. Defendant argued the wiretap application was facially invalid because it was signed by the chief deputy DA rather than the DA. The law allows for such an act, and contrary to defendant’s argument, the prosecution was not required to provide an explanation for the DA’s absence. id: 27729
Electronics-search probation condition was reasonable and not overbroad.Defendant pled guilty to attempted robbery and aggravated assault. The electronics-search probation condition was reasonable because it will allow the probation department to effectively supervise defendant. The condition is constitutional because the state’s need to monitor defendant’s conduct and protect public safety outweighs the infringement on his privacy interests, and there were no facts showing defendant’s electronics contained the type of private information meriting heightened protection.id: 25363
Under section 633.5, a mother who believes her child is the victim of child molest can consent to have a call recorded with the suspect.Under Penal Code section 632, both parties must consent before a conversation is recorded, unless one party believes the recording will produce evidence of an enumerated crimes. Section 633.5 provides an exception to the rule in that circumstance. The child molest victim’s mother reasonably suspected the crime when she recorded the call, and section 633.5 allows a parent to consent on behalf of a child under these circumstances.id: 25326
The trial court properly tested the reliability of the affidavits filed in support of the wiretap order under the totality of the circumstances.Defendant argued the trial court erred by denying his motion to suppress evidence obtained by the wiretap because the court tested the reliability of the affidavits filed in support of the wiretap order under the totality of the circumstances test rather than the standard requiring particularized suspicion of informant tips. However, under the terms of the Wiretap Act, the court correctly applied the totality of the circumstances test.id: 25128
Secretly recorded conversations with defendant did not violate the wiretapping laws even though there was a two year gap between the taping and handing the tape to police. Defendant argued the trial court erred by admitting secretly recorded conversations by a witness and defendant. The ruling did not violate state and federal wiretapping laws because there was sufficient police oversight of the recordings and the witness was acting under the direction of the police even though there was a two year gap between the taping and the handing over the tape to the police. id: 24800
The wiretap was properly supported by a finding of probable cause, necessity and minimization.The wiretap was supported by a finding of probable cause to believe defendant was involved in the murder as the informant was deemed reliable. The police also showed the requisite necessity, as the investigation into the gang’s activities required covert operations. And finally, the wiretap was sufficiently minimized to avoid the interception of nonpertinent calls even though the gang members’ use of code while speaking required the officers to listen longer to determine whether the conversations were relevant.id: 24041
The use of GPS technology in determining the location of the stolen cell phone, and thus assisting in locating defendant did not violate the Fourth Amendment.The police did not violate defendant’s Fourth Amendment rights by using a Global Positioning System (GPS) to locate a stolen cell phone and detain defendant. There is no Fourth Amendment violation when the information generated by the GPS, with the owner’s consent, is only a part of the objective reasons leading up to the decision to detain. id: 23215
The in camera review of sealed materials approved in Hobbs and Evidence Code section 1042 applies to wiretap authorization orders as well as search warrants. Defendants convicted of drug trafficking charges challenged the trial court’s refusal to compel discovery of redacted and sealed portions of the documentation supporting the wiretap authorization orders, and its refusal to suppress the resulting wiretap. Contrary to defendant’s claim, the procedures outlined in People v. Hobbs (1994) 7 Cal.4th 948, apply not only to search warrants but also to wiretap authorization orders.id: 22917
Receipts generated by cash machines at an ARCO station were not hearsay. Defendant, the manager of a gas station, was convicted of embezzlement. He argued the trial court erred in admitting into evidence receipts generated by the “Pay Island Cashiers” where patrons inserted cash directly into the machines when buying gas. Contrary to defendant’s claim, admission of the receipts were generated by a machine rather than a person and were thus not testimonial assertions subject to cross-examination. The machines could not be cross-examined. However, other witnesses testified as to flaws in the machines. id: 21978
Admission of the videotaped confrontation of defendant in his private workplace office did not violate Penal Code section 632.Defendant, who managed a gas station was convicted of embezzlement. He argued the trial court erred by admitting into evidence a video of a confrontation in the manager’s office regarding his embezzlement of cash. However, the videotaped communications were not confidential and protected within the meaning of Penal Code section 632. Defendant knew the cameras had been installed, and while he may have desired that any communications with the owners be kept confidential, he could not reasonably expect the communication would not be recorded. id: 21977
Dismissal of charges was too drastic a remedy following the intentional eavesdropping of attorney-client protected conversations by special agents.Three defendants were reviewing evidence with their attorneys in the Attorney General’s office. Special agents from the Attorney General’s office intentionally eavesdropped on the privileged conversations. Prior to the preliminary hearing, the magistrate dismissed the complaint concluding the interference with the right to counsel was so outrageous that it denied the defendants due process. However, dismissal was too drastic a remedy. Instead, exclusion of the overheard communications and any derivative evidence flowing therefrom is the appropriate remedy.id: 21880
Prosecution’s interception of a three-way conversation did not violate the attorney-client privilege or defendant’s right to counsel where the prosecution made no use of the recording. The prosecution intercepted a telephone conversation involving defendant, his mother and a defense investigator. Assuming the three way call was protected by the attorney-client privilege there was no violation of the privilege absent evidence that a witness disclosed any information from the call. Moreover, because there was no realistic possibility of injury to defendant there was no violation of defendant’s Sixth Amendment right to counsel or the similar right under the state constitution.id: 21693
There was no “minimization” violation for use of wiretapped conversations involving offenses other than those specified in the federal judge’s initial approval.Defendant’s telephone conversations were intercepted pursuant to a federal court ordered wiretap of her boyfriend’s telephone in an unrelated matter. She filed a motion to suppress her conversations but the trial court ruled she did not have standing to object to the wiretap evidence. The ruling that she lacked standing was erroneous but the error did not require a reversal and resumption of the suppression hearing. The sole ground raised in the motion was a “minimization” violation suggesting the intercepted conversations involving the killing were unrelated to the drug trafficking investigation. However, the federal law permits officials to disclose the contents of intercepted communications involving offenses other than those specified in the original authorization. id: 20910
The failure to bring a timely challenge to the wiretap evidence forfeits the claim. Defendant argued the proponent of wiretap evidence must show it is admissible and the trial judge has the duty to review the adequacy of sealing and the propriety of the introduction of recordings about crimes other than those specified in the affidavit, and that he had no obligation to move to object on these grounds. However, the failure to bring a timely challenge to the wiretap evidence forfeits the claim. id: 20677
Wiretaps did not violate California law or the Fourth Amendment where the alternatives proposed by defendant were unlikely to succeed in exposing the conspiracy. Defendants sought to suppress the fruits of five wiretaps claiming they violated Penal Code section 629.52(d) and the Fourth Amendment. Contrary to defendants claim, the affidavits in support of the applications did not fail to establish necessity for the wiretaps. The existence of a conspiracy was important in finding normal investigative techniques were unlikely to succeed as use of the confidential informant to gain certain information would have endangered the informant and the investigation, alternative techniques such as pin registers could not have identified the callers, and warrants, physical surveillance, and trash searches would have been ineffective.id: 19425
Defendant impliedly consented to the recording of his outgoing calls from the jail since the jail had announced a blanket policy of recording all calls. Defendant was arrested for domestic violence against his girlfriend. While in jail he called her several times, but the calls were recorded pursuant to an announced, blanket policy of recording all calls placed by jail inmates. The prosecutor obtained the recordings and used certain statements at trial. The trial court did not err in denying defendant's suppression motion since defendant impliedly consented to the recording of his calls, and the recordings were admissible under state
and federal law.id: 19369
Inmate impliedly consented to the recording of phone calls he made from the jail in light of the announced policy that all calls were recorded.Defendant argued the trial court erred in denying his motion to suppress recordings of telephone conversations he made
from the jail. He claimed the recordings violated state privacy and federal wiretapping statutes. However, the phone calls were recorded pursuant to an announced, blanket policy of recording
all outgoing telephone calls by jail inmates. Defendant impliedly consented to the recording of his calls, and the recordings were admissible under federal and state law.id: 19330
Taping of defendant's jailhouse conversation did not violate the Fourth Amendment and any expectation of privacy defendant had was outweighed by the need to protect a witness.Police tape recorded the jailhouse conversations of defendant and his cellmates. Defendant argued the recording violated the Fourth Amendment. However, pretrial detainees have no legitimate expectation of privacy that their jailhouse conversations will not be recorded. While he may have had some expectation of privacy under former Penal Code section 2600, the tape recording was justified as it was done to protect a witness in addition to gathering incriminating statements.id: 18672
The presiding judge's sequential designation of judges to authorize a wiretap was permissible under the statute.Penal Code section 629.50 permits a law enforcement agency to obtain an order authorizing a wiretap under certain circumstances. The application for the wiretap order must be made in writing to the presiding judge of the superior court. The presiding judge designated a judge to review wiretap applications. In addition, the presiding judge designated a second judge to review the applications if the first judge was unavailable. This sequential designation was permitted under the statute and there was no error in having the wiretap authorized by the second judge where the first designated judge was unavailable.id: 16499
Prosecutor's application met the necessity requirements for the wiretap statute where it was shown normal investigative procedures would have failed.Several factors supported the trial court's finding of necessity for the wiretap. The case against defendant was entirely circumstantial. Witnesses were reluctant to come forward other than in an anonymous manner. The detective believed that questioning defendant was unlikely to produce evidence. Defendant was unaware he was a suspect and police believed he was likely to alert others and ask them to destroy evidence. The trial court reasonably found the prosecution would have had a difficult time proving its case without the wiretap evidence - in other words, that "normal investigative procedures have been tried and failed or reasonably appeared unlikely to succeed if tried or to be too dangerous. Thus, the trial court did not abuse its discretion by finding that the necessity requirement of Penal Code section 629.52 had been met. The court properly denied the motion to suppress the wiretap evidence obtained from defendant's cell.id: 14926
Decision restricting the monitoring of jailhouse conversations is not to be applied retroactively.Police recorded various conversations between the defendant and his visitors while defendant was in jail. The decision prohibiting the monitoring of conversations absent security reasons (<i>Delancy v. Superior Court</i>, (1982) 31 Cal.3d 865) was filed a year after the monitoring in the instant case. The courts held <i>Delancy</i> may not be applied retroactively. Moreover, the recordings did not violate his Fifth Amendment right to remain silent because the conversations with his own visitors are not the constitutional equivalent of police interrogation.id: 11206
Jail taping did not violate federal wiretap laws where the intercom system did not have outside lines that could affect interstate commerce and participants exhibited no REP.Defendant argued that tape recording the conversation between he and his wife at the jail was a violation of the federal wiretap statutes (Title III of the Omnibus Crime Control Act - 18 U.S.C. sections 2510, et seq.). The conversation was not a "wire communication" within the meaning of the act because it took place on the jail's intercommunication system which did not have outside lines. Moreover, the conversation was not an "oral communication" as defined in section 2510(2), because the participants did not exhibit a reasonable expectation of privacy.id: 11207
Police taping of defense counsel's conversation with defense investigator did not require reversal.Defendant argued the charges should be dismissed because the police overheard and recorded a conversation between his attorney and a defense investigator. However, the officer did not testify at trial as to what he might have heard on the tape, none of the prosecution's evidence originated from information on the tape and there was no showing the taped conversations were used to defendant's detriment. Absent a showing of prejudice, the error did not require reversal under the federal or state constitution.id: 11210
Prosecution must rebut a prima facie case of eavesdropping evidence.Appellant argued his Sixth Amendment right to counsel was violated by the electronic monitoring of conversations with defense counsel after it was determined that meetings between appellant and his counsel were scheduled in interview rooms equipped with monitoring devices. The prosecution then produced fourteen witnesses including the warden who testified the equipment was never used to overhear conversations between a prisoner and his attorney. Such testimony constituted clear and convincing evidence to rebut the alleged Sixth Amendment violation.id: 11211
Statute providing privacy within the jails does not mandate exclusion of evidence if police violate that right.Police surreptitiously tape recorded a conversation between a minor and his mother in a police interrogation room. Penal Code section 2600 which establishes the right of pretrial detainees to a reasonable expectation of privacy even within the confines of a jail does not provide for exclusion of evidence in the event law enforcement fails to honor that expectation. Since exclusion is not otherwise federally compelled, it may not be judicially invoked in the wake of Proposition 8.id: 11212
Tape recording defendants' conversations in the van while being transported to court did not violate their right to privacy or Sixth Amendment right to counsel.The court issued an order that the capital codefendants be transported from jail to court together, but separate from other inmates, and that their conversations be tape recorded. Tape recording the conversations did not violate defendants' Sixth Amendment rights where there was no interrogation, just listening. Moreover, the recordings did not violate Penal Code sections 2600 and 2601, which protects the privacy rights of prisoners as defendants had no greater expectation of privacy in the van transporting them to the jail than they did at the jail.id: 11213
Tape recording of a call made from jail did not violate the Fourth Amendment or sections 2600 and 2601 where the person recording the call was a party to the call.Defendant was arrested on charges of child molest against Cecilia. While in jail he twice called Tina's grandmother who then called the police. A recording device was placed on Tina's home phone. Officers in the jail told defendant Tina called and was expecting a collect phone call from him. He called her on consecutive days and the conversations were recorded. On the first day Tina attempted to elicit incriminating statements. An expectation of privacy can arise where a defendant is lulled into believing a conversation is confidential. However, defendant was not lulled into such expectation of privacy where deputies told him to call Tina and that his jail conversations were not recorded. The trial court was free to disbelieve the self-serving statements as to what he was told on a prior occasion. Moreover, Penal Code sections 2600 and 2601 regarding privacy rights in jail were not violated since the prohibitions against surreptitious recording of calls does not apply where the person recording the call is a party to the call.id: 11214
Trial court erred in finding counsel ineffective in failing to find the key to suppress evidence since the restrictions on eavesdropping on cordless phones are subject to the law enforcement exception.The trial court granted defendant's new trial motion after finding trial counsel was ineffective in failing to find the key to suppressing the evidence found in the search. The trial court found that the key was the interplay between Penal Code section 633 and a federal statute, 47 U.S.C.A. section 605, which prohibited law enforcement in 1991 from intercepting without a warrant, the radio portion of cordless phone communications via a radio scanner. However, the Court of Appeal determined the restrictions on eavesdropping contained in the Cordless and Cellular Radio Telephone Privacy Act of 1990 are fully subject to the law enforcement exception codified in section 633. The convictions were therefore reinstated.id: 11215
Monitoring of a beeper placed in the stolen bank deposit bags by a private party did not violate the Fourth Amendment.Defendants burglarized a Payless Drug Store and made off with bank deposit bags containing approximately $14,000. Unbeknown to them, Payless had installed an electronic beeper in the bag which transmitted a signal enabling the officers to track the stolen property. Because the beeper was placed in the bags by a private party, Payless, and not a government agent, there was no search for Fourth Amendment purposes.id: 11103
Defendant had no expectation of privacy in the jailhouse conversation with his wife as the two talked so loudly.Defendant argued that his constitutionally cognizable expectation of privacy was violated by the Los Angeles Police Department taping of his conversation with his wife in spite of the fact that it was made in county jail. However, substantial evidence supported the trial court's finding that defendant did not entertain such an expectation of privacy given that the participants talked so loudly. Defendant's reliance on Penal Code section 2600 (statutory right to privacy for prisoners) was of no help to him because the provision does not provide a suppression remedy for violations thereof.id: 10894
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245