Colorado § 18-9-304 - Eavesdropping prohibited - penalty.

§ 18-9-304. Eavesdropping prohibited - penalty.

(1) Any person not visibly present during a conversation or discussion commits eavesdropping if he:

(a) Knowingly overhears or records such conversation or discussion without the consent of at least one of the principal parties thereto, or attempts to do so; or

(b) Intentionally overhears or records such conversation or discussion for the purpose of committing, aiding, or abetting the commission of an unlawful act; or

(c) Knowingly uses for any purpose, discloses, or attempts to use or disclose to any other person the contents of any such conversation or discussion while knowing or having reason to know the information was obtained in violation of this section; or

(d) Knowingly aids, authorizes, agrees with, employs, permits, or intentionally conspires with any person to violate the provisions of this section.

(2) Eavesdropping is a class 2 misdemeanor.

Source: L. 71: R&RE, p. 474, § 1. C.R.S. 1963: § 40-9-304. L. 77: (1)(a), (1)(c), and (1)(d) amended, p. 970, § 60, effective July 1. L. 89: (2) amended, p. 841, § 91, effective July 1. L. 2010: (2) amended, (SB 10-128), ch. 415, p. 2046, § 4, effective July 1. L. 2021: (2) amended, (SB 21-271), ch. 462, p. 3207, § 331, effective March 1, 2022.

ANNOTATION

Law reviews. For note, "Legislation: The Statutory Right of Privacy in Colorado — Section 33 of the Eavesdropping Act: Should It be Narrowly Construed?", see 41 U. Colo. L. Rev. 174 (1969). For article, "Discovery and Admissibility of Sound Recordings and Their Transcripts", see 14 Colo. Law. 999 (1985).

Section recognizes right of privacy. The supreme court specifically recognizes the theory of tortious conduct designated as the invasion of the right of privacy, noting that the general assembly gave legislative recognition of the right of privacy by the enactment of this section. Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970) (decided under former § 40-4-33, C.R.S.).

Eavesdropping statutes require use of subjective and objective tests to determine whether a person's conversation qualifies as protected oral communications. People v. Hart, 787 P.2d 186 (Colo. App. 1989).

Section 16-15-102 (10) inapplicable. Since § 18-9-303 and this section do not prohibit or make unlawful consensual recorded eavesdropping, where one party to the conversation agrees to the recording, there is no "unlawful interception" within the meaning of § 16-15-102 (10). That section is, therefore, not applicable, and the evidence should not be suppressed. People v. Morton, 189 Colo. 198, 539 P.2d 1255 (1975).

Terms "conversation or discussion" in this section are synonymous with term "oral communication" as defined in § 18-9-301 (8). People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).

And monitoring conversations between husband and wife in jail not eavesdropping. Monitoring the conversations between a husband and wife in the visiting room of a jail is not eavesdropping because such conversations are not within the statutory definition of "oral communication". People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).

Consensually overheard conversation not eavesdropping. By the terms of subsection (1)(a), a consensually overheard conversation is not eavesdropping. People v. Palmer, 652 P.2d 1092 (Colo. App. 1982).

Consent of one party to recording supports summary judgment. Where plaintiff claimed that certain telephone conversations were illegally recorded, but admitted that the other party to the conversations had consented, there was no genuine issue of fact and summary judgment was proper. Abrahamsen v. Mtn. States Tel. & Tel. Co., 177 Colo. 422, 494 P.2d 1287 (1972) (decided under former § 40-4-28, C.R.S.).

For "consent" to be valid, it must be voluntary and uncoerced. Generally, it is sufficient for the prosecution, who has the burden of proving consent, to show that an informant had knowledge of the monitoring setup; however, when coercion is alleged, the prosecution must show that there was no undue pressure, threats or improper inducements. People v. Rivera, 765 P.2d 624 (Colo. App. 1988).

Whether the circumstances of a communication justify a belief that it is not subject to interception is analyzed in the same manner as the question of whether an investigative activity amounts to a search: whether there is a justifiable expectation of privacy at the time and place of the communication. People v. Lesslie, 939 P.2d 443 (Colo. App. 1996).

Occupants of bar restroom had an objectively reasonable expectation of privacy from surveillance with a police transmitter despite the fact that police or others might hear a conversation unaided. People v. Lesslie, 939 P.2d 443 (Colo. App. 1996).