CCW THREAT QUESTION

[Chewy65]

Whether or not there was a reasonable expectation of privacy is heavily fact dependent. True, it is less likely that a conversation carried on in a public place will be found to be confidential, but it can be. Say two people walking down a public street are discussing robbing a liquor store. If their is no one else on the street and they speak in muffled voices the fact that they are in a public place does not necessarily make the communication less than confidential. If they speak loudly on the same street as they walk within earshot of others it is less likely to be considered confidential. Don't confuse this with the plain sight exception to the rules of search and seizure as they are impacted by the expectation of privacy.

[1911su16b870]

...I believe it was the surreptitious recording in Katz that violates PC632...at least according to Lexipol policy...again not a JD

[Chewy65]

Katz is a 4th Amendment search and seizure case and the 4th protects a person from governmental action, whereas 632 applies to private persons. Governmental entities perhaps, as well, but I believe it carves out an exception for a proper 4th Amendment search. What both cases share is the question of whether a person has an objectively reasonable expectation of privacy. While the Katz phone booth was available for use by the public, the member of the public still had that objectively reasonable expectation that his conversation was private. Now if the phone booth door was open and and a uniformed officer was standing just outside the phone booth user may not have had that privacy expectation, but then you have to consider that all parties to the communication must consent.

[TrailerparkTrash]

Don't confuse this with the plain sight exception to the rules of search and seizure as they are impacted by the expectation of privacy.

Search & Seizure (4th Amendment) pertains to GOVERNMENT searches, NOT civilians openly talking within earshot of public access. I’m not the one confused here.

[RickD427]

You're quite correct about the Fourth Amendment being limited in application to government entities and agents. You're not confused at all.

But 632 applies the principles of "Confidential Communications" to private actors. The definition of "Confidential Communications" incorporates the same expectation of privacy principles that apply to the Fourth Amendment under Katz.

[TrailerparkTrash]

You're quite correct about the Fourth Amendment being limited in application to government entities and agents. You're not confused at all.

But 632 applies the principles of "Confidential Communications" to private actors. The definition of "Confidential Communications" incorporates the same expectation of privacy principles that apply to the Fourth Amendment under Katz.

When you’re talking out in the open with your neighbor across the property lines, there is no “confidential communication.” I hear my rear yard neighbor talking over the fence to his next door neighbor all the time. I’m a witness to their open communication while I’m on my own property and they have no idea I’m even there sitting in a patio chair. But they talk loud enough for me and everyone else to hear their two way conversation. If I’m video recording butterfly’s in my wife’s garden and my neighbors are talking loud enough for my recorder to pick up their voices planning a murder, then again there’s no expectation of privacy for them, nor is there any serupticious nor malicious recording on my part. This is akin to what the OP described happen to him with his neighbor while talking across each other’s property line. It would be no different if the OP had a security surveillance system on his own property and it picked up his neighbor verbally threatening him to commit a crime of some sort. The security recording capturing the verbal threats by said neighbor would all have been legally acquired in that case.

Again, it’s just like someone’s Ring doorbell microphone and camera, recording the neighbors talking on their driveways together across the street. There’s no privacy and no “confidential communication” when expressing one’s voice openly where someone else has a legal right to be.

Going back to what the OP described in the first post, I’d say that there is zero privacy expectations in the manner in which he vocally communicated with his wacko neighbor.

You can place your own dashboard camera and microphone on your car now. If you get into a fender bender on a lone desert road with nobody around for miles and the other driver decides to get out and threaten you, there’s no crime on your part for having captured the entire event on your dash cam. Why? Becasue you were in a public place where there’s no expectation of privacy, even if you “think” there should be because you don’t see anybody nearby. Just because you don’t see anybody in a public place, doesn’t make your communication “confidential.”

Now, if the OP had said that he and the neighbor went into one or the other’s home together to discuss their differences with the front door shut from the outside world, then that would be another story here and we wouldn’t be having this discussion. But he didn’t say nor describe a scenario like that.

[Chewy65]

Which is why I began by pointing out the 4th protects from Governmental action.

[Chewy65]

The issue is if the expectation of privacy is reasonable. You are assuming that the OP and his neighbor reasonably should expect that third persons could overhear their conversation, but you do not consider that they were in the wide open and had no other neighbors for miles. You have to consider all facts bearing on the expectation of privacy. Did they speak in loud voices in a crowded open space or did they step away from that crown and speak in whispers?

The two did not need to step inside and shut the door if they were alone in the open.

Consider this from Katz:

These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.

While it was a 4th Amendment case the argument regarding the reasonableness of an expectation of privacy applies both here and there as Rick says.

You are overly concerned with the place in which a conversation takes place, not that the place fails to impact the reasonableness of a right of privacy. It is also too easy to confused by the ruling in Hester that the 4th does not protect open fields.
All it is saying is that because the 4th does not protect the open field the court need not consider an expectation of privacy. Confidential communications protection goes beyond places protected by the 4th.

[Ishooter]

The recording without consent seems to be a very interesting issue. It raises 3 questions about the camera installed in the front of the vehicle. It's turned on whenever the vehicle is running. I just think of a few incidents, even I don't have a car camera.
1. Is it legal for it to record when the vehicle is driven on the public streets or private properties? Other people for sure don't know about it or consent to it.
2. Can that recording be admitted in court in case of an accident?
3. If I pulled the vehicle in my driveway, and the camera records a stranger standing in my driveway. Can he sue me for that?

[GizmoSD]

[RickD427]

The recording without consent seems to be a very interesting issue. It raises 3 questions about the camera installed in the front of the vehicle. It's turned on whenever the vehicle is running. I just think of a few incidents, even I don't have a car camera.
1. Is it legal for it to record when the vehicle is driven on the public streets or private properties? Other people for sure don't know about it or consent to it.
2. Can that recording be admitted in court in case of an accident?
3. If I pulled the vehicle in my driveway, and the camera records a stranger standing in my driveway. Can he sue me for that?

Go back and check the definition of "Confidential Communications" as contained in PC 632.

I don't see any issue in recording under any of your three examples.

Generally for a recording to be admissible in court, it is necessary to show how it was made, and that it was protected against change after being made.

Yes, you can be sued by any person that you record. There is no "quality control" on the filing of a lawsuit and there is little that you can do to prevent suits from being filed. The best defense is to conduct your affairs such that a plaintiff cannot win a lawsuit.

[Chewy65]

Go back and check the definition of "Confidential Communications" as contained in PC 632.

I don't see any issue in recording under any of your three examples.

Generally for a recording to be admissible in court, it is necessary to show how it was made, and that it was protected against change after being made.

Yes, you can be sued by any person that you record. There is no "quality control" on the filing of a lawsuit and there is little that you can do to prevent suits from being filed. The best defense is to conduct your affairs such that a plaintiff cannot win a lawsuit.

I don't know about criminal, but in Civil Court all you need to admit is to introduce evidence that it depicts something relevant. In short, that what is recorded has not been changed. Of course to give it any weight you want to introduce evidence as to how it was made, kept, and that it has not been changed or edited.

[GizmoSD]

This thread had evolved from law enforcement advice to lawyerly legal advice.

[Ishooter]

Go back and check the definition of "Confidential Communications" as contained in PC 632.

I don't see any issue in recording under any of your three examples.

Generally for a recording to be admissible in court, it is necessary to show how it was made, and that it was protected against change after being made.

Yes, you can be sued by any person that you record. There is no "quality control" on the filing of a lawsuit and there is little that you can do to prevent suits from being filed. The best defense is to conduct your affairs such that a plaintiff cannot win a lawsuit.

Thank you. You're right that anyone can sue for any reason.

[Demo2A]

Next time he is on your property uninvited, can't you just enforce Castle Doctrine, if he seems like a threat? You should already have him on film of snooping, and possible view of firearm?

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