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§397 WITH ANNOTATIONS

Section 397 New York State Vehicle and Traffic Law 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.

Federal Statutes

From the U.S. Code Online via GPO Access [wais.access.gpo.gov] [Laws in effect as of January 16, 1996] [Document affected by Public Law 104 -132 Section 731] Title 18 USC 2510-2511
TITLE 18 CRIMES AND CRIMINAL PROCEDURE PART I -- CRIMES
CHAPTER 119 -- WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS
Sec. 2511. Interception and disclosure of wire, oral, or electronic communications prohibited (g) It shall not be unlawful under this chapter or chapter 121 of this title for any person (i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public; (ii) to intercept any radio communication which is transmitted (I) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress; (II) by any governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public; (III) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or (IV) by any marine or aeronautical communications system;
Sec. 2510. Definitions
(16) ``readily accessible to the general public´´ means, with respect to a radio communication, that such communication is not
(A) scrambled or encrypted; (B) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication; (C) carried on a subcarrier or other signal subsidiary to a radio transmission; (D) transmitted over a communication system provided by a common carrier, unless the communication is a tone only paging system communication; (E) transmitted on frequencies allocated under part 25, subpart D, E, or F of part 74, or part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two way voice communication by radio; or

[CITE: 47CFR97] TITLE 47--TELECOMMUNICATION
CHAPTER I--FEDERAL COMMUNICATIONS COMMISSION
(CONTINUED)

PART 97--AMATEUR RADIO SERVICE
Sec. 97.111 Authorized transmissions. (a) An amateur station may transmit the following types of two-way communications: (1) Transmissions necessary to exchange messages with other stations in the amateur service, except those in any country whose administration has given notice that it objects to such communications. The FCC will issue public notices of current arrangements for international communications; (2) Transmissions necessary to exchange messages with a station in another FCC-regulated service while providing emergency communications; (3) Transmissions necessary to exchange messages with a United States government station, necessary to providing communications in RACES; and Sec. 97.403 Safety of life and protection of property. No provision of these rules prevents the use by an amateur station of any means of radiocommunication at its disposal to provide essential communication needs in connection with the immediate safety of human life and immediate protection of property when normal communication systems are not available.
Sec. 97.405 Station in distress. (a) No provision of these rules prevents the use by an amateur station in distress of any means at its disposal to attract attention, make known its condition and location, and obtain assistance. (b) No provision of these rules prevents the use by a station, in the exceptional circumstances described in paragraph (a) of this section, of any means of radiocommunications at its disposal to assist a station in distress.

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.

People v. Mcgee reads:
"Motor Vehicles - Radio Capable of Receiving Police Signals Section 397 of the Vehicle and Traffic Law, which proscribes equipping a motor vehicle with a radio receiving set capable of receiving signals on the frequencies allocated for police use without a permit, for the purpose of preventing criminals from listening to police broadcasts in their automobiles, does not represent and unconstitutional infringement in the area of regulation of the airways pre-empted by congress since the statute only proscribes equipping motor vehicle with a certain type of radio device and does not apply to duly licensed radio amateurs, prohibit broadcasting or deal with the regulation of the airways in any manner. The term "radio receiving set capable of receiving signals" is not so vague as to be unconstitutional since the term "signals" must mean voice messages."

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.

The Federal Communications Commission
FCC PR DOCKET 91-36
Federal Register Vol 56, Nr 46, pages 9951-9953

In the matter of Inquiry into the Need to Preempt State and Local Laws Concerning Amateur Radio Operator Use of Transceivers Capable of Reception Beyond the Amateur Service Frequency Allocations

NOTICE OF INQUIRY 1. On November 14, 1989, the American Radio Relay League, Incorporated (ARRL) filed a Request for Issuance of Declaratory Ruling
(1) requesting that the Commission preempt certain state statutes and local ordinances affecting transceivers
(2) used by Amateur Radio Service licensees. Some of these laws are so broad as to prohibit mere ownership of such transceivers if they are capable of reception of communications on certain frequencies other than amateur service frequencies.
3. Most of these laws are directed primarily toward frequency reception capability by equipment located in vehicles, but at least one law reaches possession of this equipment merely outside the home
(6). Some laws, however, specifically exempt amateur operators who possess equipment in motor vehicles
(7). These state and local laws appear to be aimed at promoting the health, safety, and general welfare of the citizenry (8).

4. ARRL makes two arguments in support of preemption.
First, it states that the receiver sections of the majority of commercially available amateur station transceivers can be tuned slightly past the edges of the amateur service bands to facilitate adequate reception up to the end of the amateur service bands. ARRL seeks a preemption ruling that would permit amateur operators to install in vehicles transceivers that are capable of this "incidental" reception (9).
Although ARRL's formal request is couched in terms of this first, technical point, the request focuses almost entirely on a second, broader issue of whether state and local authorities should be permitted, via the scanner laws, to prohibit the capability of radio reception by amateur operators on public safety and special emergency frequencies that are well outside the amateur service bands.

5. In regard to the broader issue, ARRL argues that amateur operators have special needs for broadscale "out-of-band" reception, and that the marketplace has long recognized these needs by offering accommodating transceivers. According to ARRL
(1), many commercially manufactured amateur service HF transceivers and the majority of such VHF and UHF transceivers have non-amateur service frequency reception capability well beyond the "incidental" -- they can receive across a broad spectrum of frequencies, including the police and other public safety and special emergency frequencies here at issue. This additional capability, argues ARRL, permits amateur operators to take part in a variety of safety activities, some in conjunction with the National Weather Service, that are legitimately available to amateur operators. Such activities benefit the public, especially in times of crisis, and some require the mobile use of the amateur stations
(11). ARRL states that the "vast majority" of amateur operators take part in these mobile activities, and that the widespread enforcement of laws such as New Jersey's would make illegal the possession of "essentially all" modern amateur mobile equipment
(12). (As of January 31, 1991, the Commission's licensing database indicates that there are 502,133 amateur station licensees in the United States and its territories and possessions.)
ARRL states that, as a result of scanner laws, "several dozen instances of radio seizure and criminal arrest [have been] suffered by licensed amateurs in recent months."
(13) (2) Radio equipment capable of both transmission and reception. We are concerned herein, however, only with reception capability. Transmission by amateur operators on unauthorized frequencies is prohibited.
(7) See e.g., Minn. Stat. Ann. 299C.37 (West Supp. 1990): N.Y. Veh. & Traf. Law 397 (McKinney 1986).

MEMORANDUM OPINION AND ORDER
PR Docket 91-36 Aug, 20, 1993

. "..As a consequence of these changes, the rules now expressly authorize amateur service operation "at points where the amateur service is regulated by the FCC,"...
Furthermore, the Commission's Rules do not in any way prohibit an amateur service transceiver from having out-of-band reception capability.

11. Against this background... [S]canner laws that prohibit the use of the transceivers because they also receive public safety, ... or other radio service frequencies frustrate most legitimate amateur service operations...
Virtually all... equipment in use today can receive transmissions on the...frequencies at issue...
This very significant limitation on amateurs operating rights runs counter to the express policies of both Congress and the Commission...
and impermissibly encroaches on federal authority over amateur operators. It conflicts directly with the federal interest in amateur operators being able to transmit and receive on authorized amateur service frequencies.


12. For these reasons, we find it necessary to preempt state and local laws that effectively preclude the possession in vehicles or elsewhere of amateur service transceivers by amateur operators merely on the basis that the transceivers are capable of reception on public safety, special emergency, or other radio service frequencies, the reception of which is not prohibited by federal law. (e.g. Cellular...)

WE find that, under current conditions and given the types of equipment available in the market today, such laws prevent amateur radio operators from using their mobile station to the full extent permitted under the Commission's Rules and thus are in clear conflict with federal objectives of facilitating and promoting the Amateur Radio Service.
We recognize the state law enforcement interest present here, and we do not suggest that state regulation in this area that reasonably attempt to accommodate amateur communications is preempted. (See Amateur Preemption order 101 FCC 2d at 960)
This decision does not pertain to scanner laws narrowly tailored to the use of such radios, for example, for criminal ends such as to assist flight from law enforcement personnel.
We will not, however, suggest the precise language that must be contained in state and local laws.
We do find that state and local laws must not restrict the possession of amateur transceivers simply because they are capable of reception of public safety, special emergency or other radio service frequencies, the reception of which is not prohibited by federal law, and that a state or local permit scheme will not save from preemption an otherwise objectionable law. (Local government may not deny radio licensed radio use).

Finally, we note, as stated by APCO in comments filed previously in this proceeding, that any public safety agency that desires to protect the confidentiality of its communications can do so though the use of technology such as scrambling or encryption.

13. We hold that state and local laws that preclude the possession in vehicles or elsewhere of amateur radio service transceivers by amateur operators merely on the basis that the transceivers are capable of reception of public safety, special emergency, or any other radio service frequencies not otherwise prohibited by federal law, are inconsistent with the federal objectives of facilitating and promoting the amateur radio service, and more fundamentally with the federal interest in amateur operator's being able to transmit and receive on authorized frequencies.
We therefore hold that such state and local laws are preempted by federal law.


14. Accordingly, IT IS ORDERED that the request for a declaratory ruling files by the ARRL IS GRANTED to the extend indicated herein and in all other respects is DENIED.

MORE RECENT CASE LAW FOR §397

NOTES OF DECISION
People v. Garcia, 1996, 170 Misc.2d 543, 647 N.Y.S.2d 355
3. Radio receivers within section

Mere possession by defendant of scanner that could be reprogrammed to receive police communication frequencies was insufficient to warrant indictment on charge of possession in motor vehicle of radio capable of intercepting police communication frequencies, in absence of evidence that defendant's scanner could easily be tuned to police frequencies.

NOTES OF DECISION
People v. Beatson 1997 Suffolk County First District Docket #44993-97S

"As a holder of a valid amateur radio license, defendant is exempt from the provisions of section 397 of the vehicle and traffic law."

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