Originally Posted by Priority-One View Post
I carry an XTS2500 with me. I live in Harlem, so i got the bluetooth ear piece and the Motorola bluetooth dongle. I just put my radio in my backpack and go out usually to get pictures in midtown.
I have been ticketed in brooklyn and had my old scanner confiscated. (90th precinct) and they would not give it back to me. i got a $115 summons. I didn't argue to get my scanner back because i knew it would have been a lost cause.
I had to go to Hoyt-schermerhorn court house, it was a waste of time because you go in front of a judge and he says,
"Do you understand that it is against code blah blah blah in the NYS penal code to posses a device capable of monitoring/receiving/transmitting on nypd, fdny or ems channels"
I said "Yes your honor:
"$115 fine imposed, see the clerk in room 205"
Long story short, i was living on Lorimer st in Brooklyn and came up from the train and they saw the antenna in my back pocket and pulled me aside and issued me the summons.
I was also told that even with the way the law is written, they are not gonna care and they will take your equipment every time.
The lawyer i spoke to is an ex DA now in the private sector and he told me
"Monitoring a scanner is not a right, it's a privilege"
And your lawyer is WRONG!!!!! You can NOT have a radio that transmits on FDNY/NYPD/EMS, but you CAN have a scanner as long as it is NOT mounted in a vehicle if you do NOT have a permit from the police to have it mounted in the car. As for them taking your scanner from you that is a violation of your 4th amendment rights as scanners are legal as long as you do not use them in the commission of a crime!!!!!!!! I don't know how long ago this happened to you but I would look into getting it back if it was not long ago. I would also tell your lawyer to learn the laws in NYS when it comes to scanners and 2 way radios!!!!!!!!! In other words scanners are legal in NYS as long as it is not in a car or used in a crime!!!!!!
New York State Vehicle and Traffic Law
Section 397
The following is the complete text of section 397 of the New York State vehicle and traffic law. This section governs the use of mobile scanners in motor vehicles. Following the statute is a brief summary of the case law relevant to this section.
397. EQUIPPING MOTOR VEHICLES WITH RADIO RECEIVING SETS CAPABLE OF RECEIVING SIGNALS ON THE FREQUENCIES ALLOCATED FOR POLICE USE.
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 in this section contained 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.
Annotated Case Law 1. Constitutionality.
People v. McGee, 1978, 97 Misc.2d 360, 411 N.Y.S.2d 514.
Ruled that section 397 is constitutional and not a preemption of an act of Congress.
2. Legal Purpose.
People v. McGee, op. cit.
Stated that the rationale for the statute was to prevent criminals from monitoring police broadcasts in their automobiles, prior to or after the commission of a crime. It further stated that the statue protects police radios from jamming and other interference.
3. Definition of Radio Receivers.
People v. Moore, 1978, 92 Misc.2d 807, 401 N.Y.S.2d 440.
People v. Faude, 1976, 88 Misc.2d 434, 388 N.Y.S.2d 562.
These two cases established that radar detectors used to avoid police speed traps were not radio receivers because they could not translate the radar signals into a comprehensible form.
People v. Verdino, 1974 78 Misc.2d 719, 357 N.Y.S.2d 769.
This critical case established that the statue applies to any radio that is capable of receiving police signals whether or not the radio was actually being operated. In this case Verdino was caught with a scanner that operated from the cigarette lighter but was not plugged in at the time he was stopped. The court ruled that the radio was still "capable" of receiving signals thus making it illegal.
4. Issuance of Permits.
1975, Op.Atty.Gen (Inf.) 311.
The Attorney General issued an opinion that county boards can designate a person to issue permits only in counties that have a county police department established by a county charter.
5. Confiscated Equipment.
1976, Op.Atty.Gen. (Inf.) 255.
The Attorney General issued the opinion that a confiscated radio is not contraband and must be returned to the individual in original condition even if that person has been convicted under section 397.
Mike
Retired LT. FDNY/EMS
Haz-Tac