In California, the police are allowed to tap your phone, but they have to follow procedures to do so legally. California is a two-party consent state, which means that both people involved in a conversation must consent to any recording.
Privately, you cannot tape your phone calls with your friends, family, or anyone else without first getting their agreement. However, law enforcement has different rules. If the police do not take the required steps to tap your phone, any evidence they collect can be thrown out at trial.
Police Must Obtain an Order to Tap Your Phone
Before they tap your phone, the police must obtain an order from a judge. There are strict rules for when the judge can grant police authorization to tap your phone. First, the judge must determine that probable cause exists that you are committing, have committed, or are about to commit a serious felony.
The only crimes that justify a police wiretap include:
- Murder
- Drug manufacturing or trafficking
- Kidnapping
- Terrorism
- Gang crimes
If the police believe you are about to steal a car and present a judge with a request to tap your phone, the judge cannot issue the required order. Grand theft auto is not one of the crimes that can be investigated using a wiretap.
The police also must show the judge that there is probable cause tapping your phone will assist in their investigation AND that standard procedures have been attempted or would be unlikely to lead to an arrest.
All Police Wiretaps are Limited
Police may set up a wiretap prior to obtaining authorization. But any communication intercepted before they receive proper permission will not be admissible in court. However, all police wiretap orders are for limited amounts of time.
If the police set up a wiretap before requesting an order, they can only keep the wiretap working 30 days after first intercepting any information. A judge’s order authorizing a wiretap is only valid for 10 days, starting with the authorization date. Without an extension, the police are supposed to end surveillance of your phone after the 30-day or 10-day period, whichever comes first.
If the wiretap seems to be working, but the police believe they need more time, they can request a 30-day extension of any authorization order.
Police Must Notify You of a Wiretap
Once they have an order, police may monitor your calls for evidence. However, once the wiretap period ends, the police must inform you that they intercepted your communications. Even if law enforcement’s application for a wiretap was rejected, police must give you notice of a wiretap.
This notice must include:
- The date of the order granting a wiretap.
- The duration of the wiretap.
- Whether any communications were monitored.
If you are arrested following a wiretap, police must turn over all recordings containing evidence against you, as well as any recordings that might help your case (known as “exculpatory evidence.”)
Police must have followed all of the required criteria to use evidence gathered by a wiretap against you. If there were deficiencies in their wiretap process or the procedures to obtain a judge’s authorization, you could challenge the wiretap in court. Your attorney can file a Motion to Suppress Evidence during a trial because the wiretap was illegal or insufficient. If the judge grants your motion, any evidence from the wiretap will be thrown out and cannot be used against you in court.
If you have received notice that the police tapped your phone in Glendale, California, you need the assistance of an experienced criminal defense team. Chambers Law Firm can defend you against the charges you are facing and suppress any conversations police illegally obtained. Call us today at 714-760-4088 or email dchambers@clfca.com to schedule an initial meeting.
