Hey, you, put down that smartphone and quit eavesdropping on the police:
There is a popular smartphone application that even the dumbest criminals are catching onto, and it could put law-abiding people in jeopardy. It turns your phone into a mobile police scanner, and it's illegal for most people to have.
Downloaded millions of times, it's one of the most popular smartphone applications. It allows users to listen in real-time to police scanners. Byron Fenoglio of Carmel uses it.
[. . .]
But the app, for Android and the iPhone, is running up against the law, at least in Indiana. Police don't want you to have it and state law say that the average person can't.
"The statute is that if it's being used as a police radio, that's illegal to have," said Det. Jim Johnson, Muncie Police.
By law, you can listen to a police scanner at home or in a business, but nowhere else. And there's a reason.
Maybe an attorney out there can straighten me out, but I'm not sure this is entirely accurate. Indiana Code 35-44-3-12 (here, just keep scrolling down), which seems to be the controlling statute, says it's a misdemeanor to possess or use something "capable of sending or receivng" those police broadcasts while committing a crime, to further the commission of a crime or to avoid detection of a law enforcment agency. I don't understand the language to mean you aren't allowed to just sit in your car and listen to the police scanner if you don't have anything nefarious in mind. As in so many areas, the debate here is whether we should ban everyone from having something that can be used for evil or only punish the people who do misuse it.
Comments
35-44-3-12 (a)(3) says it's a misdemeanor to possess or use a police radio under those conditions.
They're enforcing 35-44-3-12 (a)(1), however. It says that it's a misdemeanor simply to possess a police radio, with certain exceptions, 35-44-3-12 (b)(7) being the one about use only in the home or business.
I note that 35-44-3-12 (b)(8)(A) exempts anyone who is regularly engaged in news gathering. What they mean, of course, would be those who disseminate news. Anyone who reads the news and tunes in news broadcasts would be *gathering* news, right?
And they think immigrants ought to learn English? Perhaps we could start by requiring it of *legislators*.
The list containing in 1) possessing a police radio and, in 3) possessing a police radio while committing a crime is disjunctive and, therefore, theoretically either one is sufficient to constitute the crime.
Normally, I'd be certain that the disjunctive "or" settles the matter, that the "committing a crime" in "3" isn't an element required for "1." But, I have to hedge on this one because, read literally, #1 appears to make #3 nothing more than surplus. Because, #1 encompasses the whole universe of "possessing a police radio" and makes it a misdemeanor; whereas #3 applies to the more limited universe of "possessing a police radio while committing a crime" and, as such, is completely encompassed by #1.
Short answer, that statute has problems.
Doug, thanks for the walk-through; I understand it better now.
We're not talking about a two-way radio here. Just a passive receiver. No law banning them can possibly be constitutional.
Leo, you know as well as I that no newsroom could function without a police/fire/ambulance scanner.
I don't like criminals either, but you can't legislate what people listen to.
Along those same lines, I believe the law against police traffic radar detectors in Virginia is almost certainly unconstitutional. They don't jam the radar; they just listen for it.
I think your first hints here should be that:
1. The police don't like it.
2. Specifically, a *Muncie* cop is trying to tell us it's illegal.
The answers to which are 1 - Too Bad and 2 - Muncie? That's almost a guarantee the guy is full of it.
1) isn't really surplus. It's a way to introduce a list of circumstances where possession NOT in furtherance of a crime is legal.
I'm not so sure about your constitutional argument, littlejohn.
Congress has explicit authority in the Constitution to grant the inventors of a technology the exclusive right to determine who may use it. There's a "limited time" provision on that authority, but "two centuries" is a limited time, I suppose.