Today, the use of security cameras and “smart doorbells” is common by private homeowners. A smart doorbell is an internet connected doorbell that sends alerts to a homeowner’s cellphone via an app.^[1] A smart doorbell is capable of video and audio recording. Some smart doorbells have the capacity to block out ambient noises such as traffic to focus and amplify the voice of the speaker. ^[2] A majority of smart doorbells can capture audio from up to thirty feet away.

The traditional home security camera has advanced over the years. Before, most home security cameras were not capable of audio function. However, today, almost all home security cameras have audio functionality. Most security cameras can even pick up audio from approximately one hundred feet away. ^[3]

The increasing use of smart doorbells and security cameras by private citizens makes it more likely for someone’s voice to be captured on video. Let’s say, hypothetically, two people are having an argument right outside of a residential home. The argument between these two individuals heats up. One person pulls out a gun and yells “this is for sleeping with my wife!” and proceeds to shoot the other individual in the head. Right next door, a private citizen – an old lady who lives alone – had a “Ring” doorbell installed which captured the whole incident on video.

So, the question remains: can audio surveillance captured by security cameras and “smart doorbells” installed in the homes of private citizens be used as evidence in a criminal proceeding? New York has its own set of statutes that deal with this type of situation.

Unlawful Eavesdropping Generally

Under NY Penal Law §250.05 “a person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.”^[4] In other words, it is unlawful to overhear or record another person’s conversations or discussions. The statute was passed to maintain the State’s interest in privacy. ^[5]

In addition, NY Penal Law §250.00(2)^[6], defines “mechanical overhearing of a conversation” as:

• The intentional overhearing or recording of a conversation or discussion.
• Without the consent of at least one person present during the conversation.
• Through the use of any instrument, device, or equipment

Prohibition of Unlawful Eavesdropping Evidence in Court

Pursuant to CPLR §4506, the “contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury.”^[7] Unlawful eavesdropping evidence is barred from any civil or criminal legal proceeding. Also, any evidence that originates from the contents of the illegally obtained eavesdropping evidence is not allowed to be used in court.

         Generally, a defendant will invoke CPLR 4506 in a motion to suppress unlawful evidence under Article 710 of the Criminal Procedure Law.^[8] Let’s say someone (non-government actor) bugs the office of a defendant in a criminal case in hopes of recording incriminating statements. The use of this recording in a legal proceeding as evidence would be inadmissible in court under the unlawful eavesdropping statute. To preclude such evidence the defendant will make a motion to suppress the unlawful evidence under Article 710.

         There are some instances where defendants will attempt to use unlawful eavesdropping evidence in their case in chief. Therefore, instead of precluding the eavesdropping evidence, it can be used by the defendant in hopes of clearing one’s name. Generally, this occurs in domestic violence or matrimonial cases where one spouse bugs the phone of another spouse to obtain evidence that the spouse is committing infidelity. To make the playing field even, prosecutors also have standing to preclude unlawful eavesdropping evidence to prevent the defense from using unlawful eavesdropping evidence to their advantage. For example, in People v. Qike Huang^[9], the court held that prosecutors have standing to suppress unlawful eavesdropping evidence for a complainant under CPLR 4506, and that the defendant may use the contents of the eavesdropping evidence if the trial court deemed it relevant and admissible for impeachment purposes only.^[10]

What Constitutes Intent Under Penal Law §250?

            A person must intentionally record another’s conversation to be held criminally liable of unlawful eavesdropping. The issue is whether a private citizen who installs a security device capable of audio function is guilty of intentionally recording another’s conversation under P.L. §250.^[11]

            Case law is silent on whether introducing audio surveillance captured by home security system violates CPLR 4506. The confusion lies with the intentional aspect under the unlawful eavesdropping statute. Under P.L. §250, the word “intentionally” is not defined. However, the writing of the statute suggests that one has to actually intend to record or capture a person’s conversation with another for the purposes of learning the content of the conversation. Normally, a person installs a home security system to deter trespassers or burglars, with the intent to ensure the safety of their private residences. Such an intent differs from the intent to record a person’s conversations in order to obtain the content of those conversations.

What Constitutes a Conversation Under Penal Law §250?

         Unlawful eavesdropping only pertains to the recording of another person’s conversations or discussions.^[12] Ambient noises or the sound of gun shots would not constitute a conversation under P.L. §250.^[13]

It could be argued that words or utterances captured by a recording that are undecipherable and cannot be understood by the average listener should not constitute as a conversation. Such words or utterances would not reveal any content or information to a listener and should therefore not constitute as a conversation under P.L. §250.

“Conversation” is not defined under P.L. §250, nor it is defined in Black’s Law Dictionary. The Oxford Dictionary defines a conversation as “a talk between two or more people in which news and ideas are exchanged.” Therefore, if a person is talking to themselves, it would not be considered a conversation since they are not exchanging any verbal communication with another party. It should be made clear that, in order for a recording to be unlawful under P.L. § 250, it must capture a conversation between at least two people.

What Constitutes Consent Under Penal Law 250?

         Under P.L. §250, it is not unlawful to record a person’s conversation if consent is obtained. There are three forms of consent under P.L. §250: 1) consent by a party present during the conversation, 2) vicarious consent, and 3) implied consent.

1. Consent by a Party Present During the Conversation

If a person is a party or a participant to the conversation, he or she can consent to the recording of the conversation.^[14] The person only needs to merely be present during the conversation. It is not required that they are actually speaking.^[15]. If a person’s presence is not known to the speaker, he or she could still consent to the recording if he or she readily overheard the conversation while it was occurring in real time.^[16]

In People v. Kirsh, a witness overheard a conversation between the defendant and her husband. The witness heard the conversation through a hole in the floor of the defendant’s apartment. The witness recorded the conversation with a tape recorder. The court ruled that since the witness freely heard the conversation, he was not guilty of unlawful eavesdropping and was present during the conversation.^[17]

1. Vicarious Consent

A parent/guardian can vicariously consent to the recording of his or her child’s conversation with another party if the parent or guardian can demonstrate a “good faith, objectively reasonable basis to believe that it was necessary to record a conversation for the welfare of his/her child then the parent can consent to the recording on behalf of the child.”^[18] Vicarious consent would also apply to guardians of disabled individuals who do not have the mental capability to consent on their own.^[19]

The parent must show that he or she had an objectively reasonable basis to believe that the safety or well-being of the child was at risk at the time of the recording.^[20] If a parent records his/her child’s conversation in anticipation of a child custody proceeding or simply to monitor the child’s interactions with others, it would not fall within the vicarious consent exception.^[21]

The child must be aware or consent to the recording of the conversation for vicarious consent to apply.^[22] If a parent records his or her child’s conversation and the child is unaware of the recording then it does not fall under vicarious consent.^[23]

In People v. Clark, the defendant was charged with endangering the welfare of a child. The child was an eight- year- old boy with autism. The child required special bus transportation and the defendant served as his personal bus matron. The mother of the child suspected that her son was getting abused by the defendant because she noticed her son coming home with abnormal bruises on his body. The mother of the child placed a recording device into her son’s backpack before placing him on the bus with the defendant.^[24]

The defendant then moved to suppress the audio recording that were taken without her consent. The government argued that the mother consented to the recording on the behalf of her child, who was a party to the conversation, and the court agreed.^[25]

The court held that the mother lawfully consented to the recording on the behalf of her child because she had “a good faith, objectively reasonable basis to believe that it was necessary for the welfare of her son to make said recording.” Therefore, the recording was allowed to be used as evidence against the defendant.

Similarly, in People v. Badalamenti, the court reasoned that the legislature’s intent was not to subject parents to criminal liability when they record the conversations of their child out of the interest of the child’s safety.^[26]

In D.K. v. A.K., a mother recorded her child’s telephone conversations to find out the identity of who the child was speaking to on the phone. The court ruled that the mother could not vicariously consent to the recording because the mother did not have an objectively reasonable basis to record since there were no safety concerns for the child.^[27]

People v. Heffner deals with the sexual abuse of a child. The parents of the victim recorded telephone conversations between the defendant and victim. The victim was unaware that her parents were recording her conversations with the defendant. The defendant moved to suppress the recorded conversations under CPLR 4506. The court ruled that the evidence of the recorded telephone conversations must be suppressed because it did not fall under vicarious consent. The victim was not aware of the recording nor consented to it therefore her parents could not consent on her behalf to the recording.^[28]

1. Implied Consent

Case law is not completely clear on what constitutes an implied consent under unlawful eavesdropping. The only instance where implied consent is used deals with the recording of jail calls by correctional facilities. Jail calls are allowed to be recorded and turned over to prosecutors and law enforcement officials.^[29]

If a private homeowner were to post signs in their window stating that security surveillance captures audio, that would be sufficient to place others on notice that he or she could be recorded if they come within the vicinity of the home. So, the person who states something to another near a home with a security system would be talking at their own risk of being recorded and, therefore, implicitly consenting to the recording.

Conclusion

Audio surveillance captured by security cameras installed in the homes of private citizens will most likely be admissible if the court decides that a private homeowner who installs audio surveillance for security does not meet the intentional aspect under P.L. §250.

Since case law has not caught up with the advancements in technology, we will have to wait for the courts to make an official decision on the matter. If N.Y. courts eventually decide that the installation of a Ring Doorbell does not constitute and intentional recording of another’s conversation, then it will open up a new door of evidence that will be available to parties in all legal proceedings.

---

[1] See -How Do Smart Doorbells Work? Everything You Need to Know – My Automated Palace

[2] See -Best Smart Doorbells of 2022: Home Security for Any Budget -Gear Hungry

[3] See -Do Security Cameras Record Audio and Is it Legal? (diysecuritytech.com)

[4] N.Y. Penal Law §250.05 (McKinney 2014).

[5] People v. Capolongo, 85 N.Y.2d 151 (1995).

[6] Penal Law §250.00(2) (McKinney 2003).

[7] N.Y. CPLR §4506 (McKinney 1968).

[8] N.Y. CPLR §4506 (McKinney 1968); N.Y. Crim. Pr. Law §710 (McKinney 2017).

[9] People v. Qike Huang, 700 N.Y.S.2d 640 (N.Y. Sup. Ct. 1999).

[10] Under a motion to suppress evidence in violation of CPLR 4506, the prosecution must prove by a preponderance of the evidence that the defendant’s actions constituted unlawful eavesdropping. (Qike, 700 N.Y.S.2d at 640).

[11] N.Y. Penal Law §250.05 (McKinney 2014)

[12] N.Y. Penal Law §250.05; McKinney 2014.

[13] See People v. Cherry, 81 N.Y.S. 3d 123 (N.Y. App. Ct. 2018) (holding that audio footage of the defendant shooting the victim was admitted into evidence).

[14] Police use of body cams and dash cams do not constitute as unlawful eavesdropping because the officer is a participant to the conversation and is consenting to the recording.

[15] People v. Kirsh 575 N.Y.S. 2d 306 (N.Y. App. Div. 1991).

[16] Id.

[17] Id.

[18] People v. Clark, 855 N.Y.S. 2d 809 (N.Y. Supp. Ct. 2008).

[19] Id.

[20] Clark, 855 N.Y.S. 2d at 809.

[21] D.K. v. A.K., 60 Misc. 3d 1219(A) (N.Y. Fam. Ct. 2016).

[22] People v. Heffner, 726 N.Y.S. 2d 211(N.Y. Co. Ct. 2001).

[23] Id.

[24] Clark, 855 N.Y.S. 2d at 811.

[25] Id.

[26] People v. Badalamenti, 124 A.D.3d 672,674 (2nd Dept. 2015).

[27] D.K.., 60 Misc. 3d 1219(A) at 2.

[28] People v. Heffner, 726 N.Y.S. 2d 211(N.Y. Co. Ct. 2001).

[29] See People v Diaz,122 N.E.3d 92 (N.Y. Ct. App. 2019 (holding that inmates implicitly consented to the recording of their unprivileged telephone conversations because they were given legally sufficient notice that their calls were being recorded).