California Penal Code 633 lets a defined set of law enforcement officials, and people acting at their direction, record conversations they are a party to without telling the other person, as long as the recording is one they could have lawfully made under the rules that existed before January 1, 1968. It carves out an exception to California’s two-party consent rule and also makes clear that recordings gathered under this authority are not automatically excluded from evidence.
Who the Exemption Covers
Section 633 names the officials who can record on one-party consent while acting within their official authority:1California Legislative Information. California Penal Code 633
- The Attorney General and any assistant, deputy, or investigator of the Attorney General.
- District attorneys and their assistants, deputies, and investigators.
- Officers of the California Highway Patrol.
- Peace officers of the Office of Internal Affairs of the Department of Corrections and Rehabilitation.
- Chiefs of police, assistant chiefs, and police officers of any city or city and county.
- Sheriffs, undersheriffs, and deputy sheriffs regularly employed and paid by a county.
- Police officers of the County of Los Angeles.
- Any person acting under the direction of one of the officials above, as long as that official is acting within the scope of their authority.
That last category is the one that matters most in day-to-day investigations. It covers confidential informants, cooperating witnesses, and undercover operatives who record at an officer’s direction. The person doing the recording does not have to be a sworn officer. But the officer directing them has to be on the list, and has to be acting in an official law enforcement capacity.
What “Pre-1968” One-Party Consent Actually Means
California’s two-party consent requirement took effect on January 1, 1968. Before that date, a participant in a conversation could record it without telling anyone else in the conversation. Section 633 freezes that older, more permissive rule in place for the officials it lists.1California Legislative Information. California Penal Code 633
The rest of the state operates under Penal Code 632, which makes it a crime to intentionally use an electronic device to eavesdrop on or record a confidential communication without every party’s permission.2California Legislative Information. California Penal Code 632 A confidential communication is a conversation where the participants reasonably expect no one else is listening or recording. Penal Code 631 handles the related offense of wiretapping — intercepting communications traveling over a wire, cable, or telephone line without authorization.3California Legislative Information. California Penal Code 631 Together the two sections form California’s Invasion of Privacy Act.
When an officer or an informant acting at an officer’s direction is a party to the conversation, one-party consent is enough. The officer or informant provides that consent, and no court order is needed.
What Section 633 Does Not Authorize
The exemption has real edges. It does not give law enforcement blanket power to listen in on conversations they have no part in. Third-party wiretapping — where no officer or informant is on the call — was regulated even before 1968, and it remains regulated now.
For that kind of surveillance, officers need a wiretap order under Penal Code 629.50 through 629.52. Only the Attorney General, Chief Deputy Attorney General, Chief Assistant Attorney General of the Criminal Law Division, or a district attorney can even apply for one.4California Legislative Information. California Penal Code 629-50 Wiretap orders are limited to a narrow set of serious crimes, including large-scale drug trafficking, murder, solicitation of murder, kidnapping, gang felonies, human trafficking, weapons of mass destruction offenses, and certain child exploitation offenses.5California Legislative Information. California Penal Code 629-52 A wiretap order is not available for a routine fraud case or a misdemeanor.
Section 633 also does not override Penal Code 636, which makes it a felony to electronically record a conversation between someone in law enforcement custody and their attorney, religious adviser, or licensed physician without every party’s permission.6California Legislative Information. California Penal Code 636 The prohibition extends to non-electronic eavesdropping on those privileged conversations in places with a reasonable expectation of privacy, such as a holding area or anteroom. Inadvertent overhearing and conversations in open courtrooms are excluded. Deliberately listening in on a suspect meeting with their lawyer in a holding cell is a criminal offense, even for the officers who made the arrest.
Admissibility of Recordings Made Under Section 633
Section 633 has two subsections, and the second one is doing serious work. Subsection (b) provides that evidence obtained by the listed officials under the pre-1968 standard is not rendered inadmissible by Sections 631 through 632.7.1California Legislative Information. California Penal Code 633 A recording that is lawful under Section 633 is not knocked out by the exclusion rules that would otherwise apply.
The reverse is where the risk lives. If a recording falls outside Section 633 — because the recorder was not one of the listed officials, was not acting within official authority, or captured a communication that could not have been lawfully recorded before 1968 — then the exclusion provisions built into Sections 631 and 632 apply. Both sections say that evidence obtained in violation of their terms is inadmissible in any judicial, administrative, legislative, or other proceeding.3California Legislative Information. California Penal Code 6312California Legislative Information. California Penal Code 632
An officer who records a suspect’s call as a participant, within the scope of a criminal investigation and under proper authority, produces evidence that will come in at trial. A recording made by someone not covered by Section 633, or a wiretap set up without the required court order, can be suppressed along with anything derived from it. Defense attorneys challenge recordings on these grounds routinely.
Officers who conduct unauthorized surveillance also expose themselves personally. Beyond losing the evidence, an officer can face criminal charges under Sections 631 or 632 for the recording itself, and administrative consequences through internal discipline or the Peace Officer Standards and Training decertification process.
The Separate Exception for Civilians Under 633.5
Section 633 is about law enforcement. A separate provision, Penal Code 633.5, gives ordinary people a narrower exception. Any party to a confidential communication can record it without the other person’s consent if the recording is made to gather evidence of extortion, kidnapping, bribery, any felony involving violence, human trafficking, harassing phone calls, or domestic violence.7California Legislative Information. California Penal Code 633-5 The person recording must reasonably believe the other party is committing one of those crimes. Evidence gathered this way is admissible in prosecutions for those offenses and connected crimes.
Someone being extorted or threatened with violence does not have to bring police in before hitting record. They can preserve the evidence themselves and hand it to prosecutors afterward. Outside those specific circumstances, though, the two-party consent rule still applies to everyone who is not on the Section 633 list.