New York's Highest Court Says Possession of Handheld Scanner in Vehicle Violates VTL

This is NOT meant to start another round of arguments and "opinions" about the scanner laws in New York State; the moderators made it clear that they don't want that. I only offer it for the general information of the scanning community.

On October 14th New York's highest court ruled that a tow truck operator who had a scanner in his pocket violated section 397 of the Vehicle and Traffic Law (originally enacted in 1933), which prohibits "equipping" a motor vehicle with a radio capable of receiving police frequencies, without a permit. The case turned on the meaning of "equip". The police officer said that the scanner was "on", and the circumstances set out in the decision give rise to the suspicion that the tow truck driver may have responded to what he heard and was somewhere that he shouldn't have been. But the bottom line was the Court's holding that because the scanner could be accessed and operated in seconds it didn't actually have to be attached to the vehicle for its possession to violate 397.

Courts only address the positions actually argued by counsel. Not discussed is federal preemption; how an item that is lawful to own can be transported without violating the law (in the trunk, maybe?); whether possessing a cell phone with a Broadcastify app constitutes a "radio" and thus also violates the law; and a host of other questions. So there's no sense getting into those issues.

People v. Andujar www.nycourts.gov/ctapps/Decisions/2017/Oct17/91opn17-Decision.pdf

Oral arguments of this case:

https://www.youtube.com/watch?v=ugTKTrK3eS8

Interestingly, the oral arguments address cell phone "apps" for listening, and seems to be a big part of the argument.

"tow trucks equipped with police radios for the purpose of securing towing business at [the] scene of automobile accidents."

Jumping calls. Correct me if I'm wrong, but isn't that illegal? I've heard about taxi companies doing the same. They will listen in on other cab companies; get the location of the pickup and take their customer from them. I would think that's illegal. Same as the tow truck responding to an accident. He wasn't called there. He was jumping the call to make $ $ $ $ $ $

Does anyone know where the case originated...I assume NYC, but what borough?

(after listening to the oral arguments on YouTube, it's the Bronx DA's Office handling it).

The bulk of the argument "before Bar," was the difference between the term, "equipped," as used in the VTL law, and the "use" of such a device. One justice brought out what he felt was the "original intent" of the Legislation: to prevent active criminals from monitoring police frequencies.

Had the defense counsel based their argument on the "intent" of Defendant Andujar (i.e. not to avoid police interaction, but to provide a service...such as it is), perhaps the court would have went the other way. Unfortunately, they chose to focus on whether the radio the driver had in his possession was physically "equipped" to the vehicle and, not being so, whether his mere possession of the radio in a vehicle was in violation of the law, based on the fact that it was "readily accessible" by the driver, having nothing to do with wires, power sources, or other installed equipment.

DA BRONX what pct ?

This all seems very interesting to me.....

Seems to me that if you have a scanner in your car, on or off, you have committed a felony.

I got very very confused when listening to the oral argument. Seems like there is a very thin and blurry line on this law.

Some Internet radios can receive streams of scanner frequencies, wonder how that would be handled?

The Appellate Division of the NYS Supreme Court is not "New York's highest court."

The decision in this case is only binding within the judicial district covered by the First Department (Bronx and Manhattan).

In any respect, the upstate NY crowd had better contact their state legislators to get the VTL changed to, at least, allow members of vollunteer units to have in their posession a radio (which is what it has come down to, "posession," not use), before Cuomo's Storm Troopers start locking you up at an incident.

After all, they're locking up volly chiefs and firemen because they don't like the way the rigs are "parked" at an operation.

There's no doubt that the VTL is very outdated for our times as the defense pointed out. However the argument she tried to pursue was that it was a handheld device and not equipped or attached to the vehicle therefore didn't violate the VTL. they weren't having that.

Also I know it's terrible to say but the tow truck driver was idiotic for responding to an accident scene, he should very well know that the NYPD uses their own departmental tow contracts to tow vehicles. Also the entire borough of the Bronx is covered in the brodcastfy streams, he could've just used his cellphone. But still sounds like an amateur to me, he should've known better.

ten13 said:

In any respect, the upstate NY crowd had better contact their state legislators to get the VTL changed to, at least, allow members of vollunteer units to have in their posession a radio (which is what it has come down to, "posession," not use), before Cuomo's Storm Troopers start locking you up at an incident.

After all, they're locking up volly chiefs and firemen because they don't like the way the rigs are "parked" at an operation.

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I don't know what the deal is upstate, but in the city when I volunteer I have never come across a police officer who was displeased with us listening to their frequencies. In fact they used to let us sign out a radio to use when they're was 10-13s/10-85s as relays of information could be time consuming.

However the state troopers I've never come across but I would imagine they are very by the book so to say.

If you have a phone in your car and you are listing to a scanning app such as broadcastify, Are you technically "equipping" the car with a actual scanner? I still am very confused on this.

DaveNF2G said:

The Appellate Division of the NYS Supreme Court is not "New York's highest court."

The decision in this case is only binding within the judicial district covered by the First Department (Bronx and Manhattan).

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David, it's NOT the Appellate Division; it's the Court of Appeals. Suggest that you read the decision. NYC Criminal Court appeals go to the Appellate TERM (an intermediate appellate court), which reversed the Criminal Court's decision. A judge of the Court of Appeals then granted leave for the People to appeal. The decision's holding is binding on all New York State courts everywhere.

"NYPD uses their own departmental tow contracts to tow vehicles."

Only for highways, not for regular streets.

nickthequick0 said:

If you have a phone in your car and you are listing to a scanning app such as broadcastify, Are you technically "equipping" the car with a actual scanner? I still am very confused on this.

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That was part of the oral arguments, at which time the conversation got a little muddy about the technology of everything involved: radios, cell phones, "frequencies," etc., then the conversation was changed so as to not make the ultimate decision far too broad.

The bottom line...for the meantime...is to be discrete with your radio.

But don't be surprised if some yahoo cowboy of a cop (or trooper) decides that, rather than dealing with drug dealers, car thieves, and bank robbers, it's easier to lock up middle-class volunteer ambulance corps members for their radios.

"I don't know what the deal is upstate, but in the city when I volunteer I have never come across a police officer who was displeased with us listening to their frequencies. In fact they used to let us sign out a radio to use when they're was 10-13s/10-85s as relays of information could be time consuming."

Obviously, you're dealing with NYC. They have bigger fish to fry.

But I would still be discrete with the radio, no matter where you are, after this ruling. Just because you ran across a few cops who don't care, there may come a time when some cop with a chip on his or her shoulder...or worse, a boss... will use that radio possession as a reason to make your life a living hell for whatever reason they have to do it.

This guy, Andujar, the tow truck driver, probably went to a thousand accidents with that radio in his possession, and no one said boo about it, until he ran across that ONE cop who decided to make a big deal out of it.

And your cries and pleas in the station house of "everyone has one..." will fall on deaf ears.

I'm just talking about personally-owned scanners. Now, if you have a department-issued radio, that's another story.

nickthequick0 said:

This all seems very interesting to me.....

Seems to me that if you have a scanner in your car, on or off, you have committed a felony.

I got very very confused when listening to the oral argument. Seems like there is a very thin and blurry line on this law.

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Um, I hate to be the one to call you out on this, but it's a misdemeanor, not a felony. As a New York resident and a scanner enthusiast, I would hope you'd be more informed than this.

SteveC0625 said:

Um, I hate to be the one to call you out on this, but it's a misdemeanor, not a felony. As a New York resident and a scanner enthusiast, I would hope you'd be more informed than this.

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My apologies i got some terminology mixed up. You are correct it is a Misdemeanor NOT a felony.

My Icom 706 transceiver is in my car. Does that make me a criminal because it can receive police/fire frequencies?

R0am3r said:

My Icom 706 transceiver is in my car. Does that make me a criminal because it can receive police/fire frequencies?

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Kinda going off this, if i have my phone in my car listening to a scanner feed am i a criminal?