From: Legal Defense Report
By: Robert M. Wexler
Recently, there has been an alarming increase in the number of disciplinary and criminal cases involving police officers who illegally tape record in-person and telephone conversations.
This trend is partly attributable to the fact that more and more officers are carrying mini-recorders a part of their standard equipment and are being urged by departments to record citizen contacts. Consequently, it is more critical than ever that you become aware of when and, when NOT to record a conversation.
Penal Code Section 632 prohibits anyone from “intentionally, and without the consent of all parties to a confidential communication,” eavesdropping on or recording that communication. A “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.”
Not only is conviction under Section 632 a “wobbler” and punishable by a fine of $2,5000, but any person injured by an illegal recording may bring a civil action under Section 637.2 for the greater of three times the amount of actual damages or $5,000, per violation.
In a recent Court of Appeal case, Coulter v. Bank of America, (1994) 28 Cal. App. 4th 923, a bank employee was assessed damages of $132,000 for violating Section 632. The employee had filed a sexual harassment claim against the bank and, as evidence, produced 17 tapes containing 160 secretly recorded private conversations with his co-workers.
The court found that many of these conversations were recorded in violation of Section 632 and imposed the heavy fine.
Officers must, therefore, be cognizant of several facts to avoid liability under Section 632. First, ALL parties to a conversation must consent to it being recorded.
This applies both to in-person and telephone conversations. It is inconsequential which party initiates a telephone call; all parties must know that a call is being recorded.
Second, a conversation can potentially be found to be a “confidential communication” by the subjective and reasonable beliefs of ANY participant to the conversation. Thus, as long as one person to a conversation reasonably believes that it is confidential, it cannot be recorded without that participant’s authorization.
MOST OF THE RECENT disciplinary and criminal cases have involved officers who surreptitiously recorded their supervisors. Generally, an officer DOES NOT have the right to record a conversation with a supervisor, especially when that conversation takes place in the context of an office or other location that indicates some expectation of privacy.
This is because both the supervisor and officer each have a subjective and reasonable belief that no one is listening to or recording their discussion.
It is simple to avoid any liability under Section 632 by openly placing any recording device in plain view of all participants to a conversation, and clearly stating at the outset that the discussion is being recorded. This process will eliminate any reasonable belief that the discussion is a confidential communication.
Likewise, there have been several recent cases involving officers who secretly videotaped their amorous liaisons with their partners. In at least one of these cases, the officer was charged with a felony after his ex-girlfriend became aware that tapes of their lovemaking were being shown throughout the department.
Videotapes, as with audio tapes, fall under the provisions of Section 632. Accordingly, all participants must be aware that their actions are being videotaped and must consent to the videotaping. Mere consent to the sexual act is insufficient to satisfy the parameters of the Privacy Act statutes.
Recording citizen contacts
Officers are permitted, however, to covertly record their on-duty citizen contacts that relate to criminal investigations. There is a specific exception in Section 633, which allows prosecutors and law enforcement officials to eavesdrop and record conversations in the course of criminal investigations.
Section 633 was derived from former Section 653(h), which permitted officers to record conversations “in the performance of their duties in detecting crime and in the apprehension of criminals.” It is pursuant to this language that departments record telephone lines used for police business and officers are allowed to record citizen contacts in the field.
Be advised, however, that Section 633 is limited to criminal investigations and does not extend to secret recordings to gather evidence on co-workers or superiors. In Rattray v. City of National City, 51 Fed. 3rd. 793, a former police officer sued his employer for invasion of privacy under Penal Code Section 632 for secretly recording his statements in the course of an internal affairs sexual harassment investigation.
The NINTH CIRCUIT COURT of Appeals held that “Section 633 protects only electronic recording and eavesdropping in the course of criminal investigations, and not police recordings of their own employees as a matter of internal discipline.” Therefore, Rattrays was permitted to proceed to trial against the department in order to recover damages.
If your department h as a policy that requires officers to record field contacts, or if you decide to adopt the practice yourself, make certain that you remember when to turn the tape off.
As good a tool as recordings may be to preserve evidence and to exonerate an officer when accused of misconduct, make certain that you do not violate law or your department’s policy by using tape recorders inappropriately. Be safe!