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Monitoring and the Law

Jorge Rodriguez


New York Monitoring Laws


             In these times of heightened awareness about terrorism it seems appropriate to begin our specific coverage of monitoring laws in America with New York. Certainly the events of September 11th have increased the amount of public safety radio traffic there and, with that, an accompanying interest to monitor those transmissions.

            New York’s regulation of police scanners is found primarily in section 397 of the New York State Vehicle and Traffic Laws. In two hundred and four words it prohibits the equipping of a motor vehicle with a radio that can receive radio signals used by the police. It also prohibits you from using a motor vehicle that is so equipped. Interfering with police radio transmissions is also prohibited.

            Since it was enacted, several cases have interpreted what the New York lawmakers intended. In 1978, in a case titled People v. McGee, the law was found to be constitutional and not preempting federal law by Congress. The preemption issue does not seem to have been revisited by other cases since then nor since the passage of PR 91-36 (FCC 93-410) as it relates to licensed amateur radio operators, a group often excluded from such radio laws.

            For the past ten years, PR 91-36 has held that “… state and local laws that preclude the possession in vehicles or elsewhere of amateur radio service transceivers by amateur operators merely on the basis that the transceivers are capable of the reception of public safety, special emergency, or other radio service frequencies, the reception of which is not prohibited by federal law, are inconsistent with the federal objectives of facilitating and promoting the amateur radio service and, more fundamentally, with the federal interest in amateur operator's being able to transmit and receive on authorized amateur service frequencies. We therefore hold that such state and local laws are preempted by federal law.”

            The McGee case also explains that the government interest in such a law is in preventing criminals from monitoring police broadcasts in their automobiles, before, during and after the commission of a crime. Such a law is therefore a reasonable restriction on liberty. However, the restriction applies even if the radio is not turned on, which could mean that merely having such a radio anywhere in a vehicle violates the law.

            Four years before McGee, in the case of People v. Verdino, section 397 was applied to prohibit a radio that was unplugged and thus not working. The court decided it was still "capable" of receiving signals and was illegal.


Secondary, Criminal and Regional Law

             Besides primary sources of law, such as statutory law made by lawmakers and case law made by judges, there are many secondary sources of law. One such secondary source is the published opinion of a state’s attorney general. Attorney General Opinions are issued in response to requests by state agency officials and local government attorneys to help answer unsettled questions of law. In 1975 and 1976, New York’s then Attorney General Dennis C. Vacco issued two important opinions related to police scanners.

            The first of these, Op.Atty.Gen 311 (1975), concluded that permits for police scanners could be issued by a designated person in counties with a county police department which are established by a county charter. The other Opinion of Attorney General Vacco’s office, Op.Atty.Gen 255 (1976) addressed confiscated police scanners from those who violated the New York law. The Opinion stated that since the radio was not contraband (something inherently illegal) it must be returned to the individual even if that person is convicted of breaking the law.

            In addition to section 397’s prohibitions, New York’s criminal law has a statute that also covers the illegal use of police scanners. Section 40 of Article 140 of the consolidated laws of New York prohibits possession of a police scanner while committing a criminal offense.

            The City of Rochester, New York, has its own city ordinance banning the use of police and fire scanners, too. Rochester defines such radios broadly as  "a radio receiver set of such size as to be easily and conveniently carried by hand or in a vehicle from one (1) location to another, regardless of the type of power supply, and which can be quickly used while being carried by a person either on foot or in a vehicle." Rochester makes no exception for licensed amateur radio operators. After broadly defining what they consider to be portable scanners, they do exclude peace officers, authorized technicians of the Police and Fire Departments, or persons holding a permit from the Rochester Chief of Police.

            In summary, in New York you can’t have a police scanner in a vehicle even if the radio is not connected or turned on. Possession of police scanner while committing a crime is also illegal. And within the city limits of Rochester, using a portable, hand held or easily hand carried radio to receive police and fire frequencies is prohibited.

            Do you have personal knowledge of these laws in New York or in other states? Have questions of interpretation? Other monitors would like to know: write me c/o Monitoring Times or via email at the above address.

 Disclaimer: Material in this column is for news and informational value and nothing here should be construed as legal advice. Persons wishing specific legal advice should consult a licensed attorney in their jurisdiction.




A person, not a police officer or peace officer, acting pursuant to his special duties, who equips a motor vehicle with a radio receiving set capable of receiving signals on the frequencies allocated for police use or knowingly uses a motor vehicle so equipped or who in any way knowingly interferes with the transmission of radio messages by the police without having first secured a permit to do so from the person authorized to issue such a permit by the local governing body or board of the city, town or village in which such person resides, or where such person resides outside of a city, or village in a county having a county police department by the board of supervisors of such county, is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars, or imprisonment not exceeding six months, or both. Nothing [contained] in this section … shall be construed to apply to any person who holds a valid amateur radio operator's license issued by the federal communications commission and who operates a duly licensed portable mobile transmitter and in connection therewith a receiver or receiving set on frequencies exclusively allocated by the federal communications commission to duly licensed radio amateurs.




Article 140. Burglary and related offenses

§140.40. Unlawful possession of radio devices.

                As used in this section, the term "radio device" means any device capable of receiving a wireless voice transmission on any frequency allocated for police use, or any device capable of transmitting and receiving a wireless voice transmission.

                A person is guilty of unlawful possession of a radio device when he possesses a radio device with the intent to use that device in the commission of robbery, burglary, larceny, gambling or a violation of any provision of article two hundred twenty of the penal law.

                Unlawful possession of a radio device is a class B misdemeanor.





§ 44-2. Radio receiving sets.

A. No person shall use a portable receiver for the purpose of receiving signals on police or fire frequencies.

B. No person shall equip any motor vehicle with a radio receiving set capable of receiving signals on the frequencies allocated for police or fire use or knowingly use a motor vehicle so equipped or knowingly in any way interfere with the reception or transmission of radio messages by the Police or Fire Department. [Amended 1-27-1970, Ord. 70-36]

C. The Chief of Police is hereby authorized to issue, regulate or revoke permits for the use of such receiving sets to persons or corporations engaged in official business. [Amended 1-27-1970, Ord. 70-36; 5-28-1974, Ord. 74-180]

D. The provisions of this section shall not apply to peace officers, authorized technicians of the Police and Fire Departments or persons holding a permit from the Chief of Police. [Amended 1-27-1970, Ord. 70-36; 5-2