In California, law enforcement agents can get a wiretap for your phone if they can obtain a court order. This court order can initially last up to 10 days, although it can be extended. It will only be issued if there is probable cause to believe it would gather evidence of a serious felony.
The subject of the wiretap must be notified of the wiretap after the fact.
When can law enforcement in California wiretap me?
In order to set up a wiretap for your phone, California law enforcement officers must get a court order to do so. This court order requires prosecutors to convince a judge that:
- there is probable cause to believe that a crime has been committed or is about to be committed,
- that crime is a serious felony, and
- there is no other method of gathering incriminating evidence.
However, police can set up a preliminary wiretap before getting court approval.
If the wiretap intercepts communications in a foreign language, police can use an interpreter to understand it.
Probable cause
Judges in California are only allowed to grant a court order for a wiretap if they find that there is probable cause to believe that:
- the suspect is committing, has committed, or is about to commit, an eligible felony offense,
- the wiretap would obtain particular communication about that offense, and
- the place to be wiretapped is related to the offense.[1]
Serious felony
Wiretaps can only be issued to investigate serious felonies in California. By statute, those serious felonies are:
- the following drug offenses, so long as they involve at least 10 gallons or 3 pounds of either heroin, cocaine, PCP, methamphetamine, fentanyl, or their precursors or analogs:
- possession of a controlled substance with an intent to sell it (Health and Safety Code 11351 HS),
- possession of cocaine base for sale or purchase (Health and Safety Code 11351.5 HS),
- sale or transportation of a controlled substance (Health and Safety Code 11352 HS),
- possession of over $100,000 in drug money (Health and Safety Code 11370.6 HS),
- possession of methamphetamine for sale (Health and Safety Code 11378 HS),
- possession of phencyclidine for sale (Health and Safety Code 11378.5 HS),
- sale or transportation of methamphetamine (Health and Safety Code 11379 HS),
- sale or transportation of phencyclidine (Health and Safety Code 11379.5 HS),
- manufacturing drugs, narcotics, or controlled substances (Health and Safety Code 11379.6 HS);
- murder (Penal Code 187 PC),
- solicitation to commit murder,
- kidnapping for ransom (Penal Code 209 PC),
- felony offenses of:
- possession of a destructive device or explosives (Penal Code 18710 PC),
- possession of explosives in public or private or on a common carrier vehicle (Penal Code 18715 PC),
- possession of materials to make a destructive device (Penal Code 18720 PC),
- unlawful placement or carrying a destructive device on a vehicle (Penal Code 18725 PC),
- unlawful sale, offer of sale, or knowing transportation of a destructive device (Penal Code 18730 PC),
- unlawful explosion of a destructive device (Penal Code 18740 PC),
- unlawful explosion or attempted explosion of a destructive device with an intent to commit murder (Penal Code 18745 PC),
- willful or malicious explosion of a destructive device causing great bodily injury (Penal Code 18750 PC), and
- willful or malicious explosion of a destructive device causing death, mayhem, or great bodily injury (Penal Code 18755 PC);
- felony gang offenses (Penal Code 186.22 PC),
- manufacturing, possessing, or transferring a weapon of mass destruction (Penal Code 11418 PC),
- threatening to use a weapon of mass destruction (Penal Code 11418.5 PC),
- possession of a restricted biological agent (Penal Code 11419 PC),
- human trafficking (Penal Code 236.1 PC), and
- an attempt or conspiracy to commit any of the above offenses.[2]
If the suspected offense is not any of those listed above, a court order for a wiretap cannot legally be issued.
No other method of gathering evidence
A court order for a wiretap can only be issued if the judge finds that there is probable cause to believe that normal investigative procedures either:
- have been tried and have failed, or
- reasonably appear to be either unlikely to succeed or would be too dangerous to attempt.[3]
Preliminary wiretap
Police do not have to wait for a court’s authorization to use wiretaps. However, any information that they collect before the court’s approval is not admissible in court.
The criminal defense attorneys from our law firm have found that preliminary wiretapping is a common practice. Police frequently set one up and then, when it appears that they are likely to gather incriminating evidence from it, get court authorization for it.
How do police get a court order for a wiretap?
Law enforcement must apply for a court order to get a wiretap that can gather admissible evidence.
Each application has to include:
- the identity of the police officer making the application and the officer authorizing it, typically the district attorney or the Attorney General,
- the law enforcement agency that would execute the order,
- a statement naming the chief or deputy of the law enforcement agency that reviewed the application,
- a statement of facts that justify the issuance of the court order,
- how long the wiretap would last or what would automatically terminate it, and
- information about prior applications for wiretaps related to the current application.[4]
Modifying an existing wiretap requires another application that includes all of these elements.[5]
If the application is to extend an existing wiretap, it also has to include what information has been received so far from the wiretap, or why there have been no results.[6]
The judge will issue a court order for the wiretap if he or she finds that there is probable cause to believe that:
- a serious felony is, or is about to be, committed, and
- there is no other reasonable alternative to gather the evidence.
How long does that order last?
The court order only lasts for the shortest of the following periods of time:
- as long as necessary to gather the information sought by the order,
- 10 days from the issuance of the court order, or
- 30 days from the initiation of any preliminary wiretap.[7]
Law enforcement can request an extension of the order, but only for up to another 30 days.
What happens to evidence that they gather unlawfully?
If police obtain incriminating evidence during an unlawful wiretap, the wiretap evidence will not be admissible. This includes any information obtained during a preliminary wiretap before a court order was issued.
Do police have to notify me if I have been wiretapped?
Yes. In California, law enforcement agents must notify you that the wiretap was conducted within 90 days of its conclusion. The notice must include:
- the fact that the court order was entered,
- the date of the order’s entry,
- when the wiretap was performed, and
- whether any communications were intercepted.[8]
This includes if the judge denied the wiretap application.
The judge has the discretion to make the following information available to you or your criminal defense lawyer:
- portions of the intercepted communications,
- wiretap applications from law enforcement, and/or
- wiretap orders from the court.[9]
If you have been notified that the police have been listening in on your conversations, you should seek the legal advice of a lawyer.
What are California’s wiretapping laws when police are not involved?
In California, when private parties use recording devices to eavesdrop and intercept private conversations, it is a violation of criminal law unless all parties have consented.[10] This includes all electronic communications over a telephone line, including:
- reading text messages, and
- listening to phone calls.
It includes landlines, cordless phones, and cell phones.
Note that only private conversations are covered. If you did not have a reasonable expectation of privacy for your conversation, like if you had it in a grocery store that was open to the public, a recording of your conversation may not violate the law.
Because all parties have to consent under the California wiretapping law, it is called a “two-party consent state”: On a typical phone call, both sides have to agree to the recording of the phone conversation.
These criminal cases can be charged as either a misdemeanor or a felony. Even if prosecuted as a misdemeanor, a conviction can carry up to 1 year in county jail.
Federal law and most state laws, like New York’s, only require one person to consent to the recording. These are known as “one-party consent states.” This person can be the same person that is making the recording or doing the eavesdropping.[11]
Legal References:
[1] California Penal Code section 629.52 PC.
[2] California Penal Code 629.52(a) PC.
[3] California Penal Code 629.52(d) PC.
[4] California Penal Code 629.50(a) PC.
[5] California Penal Code 629.50(a)(8) PC.
[6] California Penal Code 629.50(a)(7) PC.
[7] California Penal Code 629.58 PC.
[8] California Penal Code 629.68 PC.
[9] Same.
[10] California Penal Code 631 PC.
[11] New York Penal Law 250.00.
