s 397. Equipping motor vehicles with radio receiving sets capable of receiving signals on the frequencies allocated for police use

NY VEH & TRAF. s 397  

 s 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 so to do 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.

Comment:

            This statute prohibits the equipping of a motor vehicle with a radio capable of receiving police communications.  There is some debate whether carrying a hand-held scanner in a car is "equipping" within the meaning of this statute. 

            In People v. Verdino, 78 Misc.2d 719, 357 N.Y.S.2d 769 (1974), the Court found that a driver whose receiver was not plugged into the cigarette lighter, and thus was inoperable, nevertheless violated this statute.  The Court interpreted "equipped" to mean "fitted out" or "furnished."  Since the receiver was "capable" of receiving signals at any time the driver wished to plug it in, the vehicle violated this statute.

            This section survived a constitutional challenge on vagueness and federal pre-emption grounds in People v. McGee, 97 Misc.2d 360, 411 N.Y.S.2d 514 (1978).   The Court said that the rationale behind this section was to prevent criminals from listening to police broadcasts in their automobiles, either prior to or after commission of a crime, and to prevent jamming of air waves  during police broadcasts.

            In People v. Faude, 88 Misc.2d 434, 388 N.Y.S.2d 562 (1976), the Court ruled that this statute did not outlaw radar detectors.

            The Attorney General of New York has had occasion to issue opinions regarding this statute.  From these we learn that the only counties where the board of supervisors may designate a person to issue permits for equipping and operating a motor vehicle with a radio capable of receiving signals on police frequencies are counties which have established a police department by county charter.  1975, Op.Atty.Gen. (Inf.) 311.  A local governing body or board of a city, town or village in Monroe county may not, pursuant to this section, authorize the Law Enforcement Council of Monroe County to issue permits for the equipping of motor vehicles with radio receiving sets.  1975, Op.Atty.Gen. (Inf.) 104. In the absence of specific statutory authority, a radio seized by the police in connection with an arrest and conviction for a violation of this statute is not contraband and may not be retained, destroyed or rendered incapable of receiving police frequencies but must be returned to its rightful owner.  1976, Op.Atty.Gen. (Inf.) 255.

NY PENAL § 140.40 

 s 140.40 Unlawful possession of radio devices

  As used in this section, the term "radio device" means any device capable of receiving a wireless voice transmission on any frequency allocated for police use, or any device capable of transmitting and receiving a wireless voice transmission.  A person is guilty of unlawful possession of a radio device when he possesses a radio device with the intent to use that device in the commission of robbery, burglary, larceny, gambling or a violation of any provision of article two hundred twenty of the penal law.

  Unlawful possession of a radio device is a class B misdemeanor.

Comment:

            This statute outlaws possession of a radio with the intent to use it in the commission of a crime.