The McConnell campaign may have made a serious mistake by complaining about Lunsford handling of a recording device. McConnell campaign worker could end up facing a felony charge for eavesdropping in violation of KRS 526.020

Oct. 29, 2008


  A Marshall County Grand Jury will hear evidence on Nov. 7th. about a controversy over a digital recording device that erupted after last week’s debate between candidates in the Kentucky U.S. Senate race.  This investigation launched at the request of the McConnell campaign may boomerang and could result in prosecution of a McConnell campaign worker.

 The investigation concerns various claims reported in the press.  Lunsford is quoted as saying he was at his podium in the public debate with Mitch McConnell, and found a digital recording device hidden under a notebook on his podium. Lunsford turned the recording device over to a campaign aide and it was later delivered to the Marshall County Sheriff  Kevin Byars.
 

A McConnell campaign worker Richard St. Onge  filed a complaint with the Marshall County attorney’s office asking that charges be filed against Lunsford and Achim Bergmann a Lunsford campaign consultant.  St. Onge claims that the Lunsford campaign deleted the recordings on the recording device before delivering it to Sheriff Byars.

A press report yesterday stated that the McConnell campaign had taken the recording device to an expert and they had restored the audio recording.

The complaint by St. Onge seems to make the claim that he is the owner of the digital recorder.  Therefore, the Grand Jury can be expected to inquire about how the device got to the Lunsford podium.   It is suggested that the device had recorded private comments of Lunsford with his campaign workers.
 

Throughout this election the McConnell campaign has assigned a worker identified as “Richard” to follow Lunsford throughout the state and videotape every Lunsford appearance.  “Richard” repeatedly followed Lunsford and videotaped him as he walked through crowds and shook hands with voters and spoke to them.  Is this “Richard” the same person as the Richard St. Onge who filed the complaint with the Marshall County prosecutor?
 

So far the media has run this story as a charge against the Lunsford campaign.  However Kentucky law appears to cover the activities as a potential felony offense committed by the person who placed the recording device on Lunsford’s podium and hid it.
 

Kentucky law (KRS 526.010) defines “eavesdrop”  as meaning “to …record…any part of (a) oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device.”
 

Lunsford said that he believed the device was placed on his podium and hidden in an attempt to record pre-debate comments he made to his campaign workers and to record any public comments he made under his breath during the debate. 
It is one thing to record a public statement of a candidate.  It may well be a felony however if any part of a private conversation is recorded without permission of at least one of the participants to the conversation.   It would not be a violation of law to record or videotape a public statement of a candidate, but conversations  made in private appear to be protected by Kentucky law.
 If a person is guilty of eavesdropping under Kentucky law they have committed a Class D Felony punishable by a sentence of up to five years in prison.  (KRS 526.020).
 

Even the act of installing a recording device with the intent to eavesdrop is defined as a Felony under KRS 526.030.
 

Mere possession of an eavesdropping device is itself a misdemeanor.  (KRS 526.040).
 

If a device is determined to be an eavesdropping device, it must be forfeited. (KRS 526.080).    
 

The procedure where the Lunsford campaign turned the device over to the local Sheriff seems to be the correct thing to do. If you find evidence of a crime you should turn it over to the law enforcement officials. 
 

The act of the Sheriff in not holding on to the device, and instead delivering it back to the McConnell campaign seems to be a strange thing for a law enforcement official to do with material evidence of a crime. 
 

The Marshall County Grand Jury will not meet to consider the McConnell campaign complaint against Lunsford until Nov. 7th., but due to the eavesdropping laws, the Grand Jury may well be more interested in examining the conduct of Richard St. Onge, than of the Lunsford campaign.
 

The claim that the Lunsford campaign deleted the recorded information on the recording device, if true, could complicate the issue.  However KRS 526. 030 makes it a Felony offense just to install such a device, and does not require proof that a private conversation was actually recorded.
  

Read the applicable Kentucky Law for yourself


 
KRS 526.010 Definition.
The following definition applies in this chapter, unless the context otherwise requires:
“Eavesdrop” means to overhear, record, amplify or transmit any part of a wire or
oral communication of others without the consent of at least one (1) party thereto by
means of any electronic, mechanical or other device.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 226, effective January 1, 1975.
 

KRS 526.020 Eavesdropping.
(1) A person is guilty of eavesdropping when he intentionally uses any device to
eavesdrop, whether or not he is present at the time.
(2) Eavesdropping is a Class D felony.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 227, effective January 1, 1975.
 

KRS 526.030 Installing eavesdropping device.
(1) A person is guilty of installing an eavesdropping device when he intentionally
installs or places such a device in any place with the knowledge that it is to be used
for eavesdropping.
(2) Installing an eavesdropping device is a Class D felony.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 228, effective January 1, 1975.
 

KRS 526.040 Possession of eavesdropping device.
(1) A person is guilty of possession of an eavesdropping device when he possesses any
electronic, mechanical or other device designed or commonly used for
eavesdropping with intent to use that device to eavesdrop or knowing that another
intends to use that device to eavesdrop.
(2) Possession of an eavesdropping device is a Class A misdemeanor.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 229, effective January 1, 1975.
 

KRS 526.080 Forfeiture.
Any electronic, mechanical or other device designed or commonly used for
eavesdropping which is possessed or used in violation of this chapter, is forfeited to the
state and shall be disposed of in accordance with KRS 500.090.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 233, effective January 1, 1975.
 

KRS 500.090 Forfeiture.
(1) All property which is subject to forfeiture under any section of the Kentucky Penal Code shall be disposed of in accordance with this section.
(a) Property other than firearms which is forfeited under any section of this code may, upon order of the trial court, be destroyed by the sheriff of the county in which the conviction was obtained.
(b) Property other than firearms which is forfeited under any section of this code may, upon order of the trial court, be sold at public auction. The expenses of keeping and selling such property and the amount of all valid recorded liens that are established by intervention as being bona fide shall be paid out of the proceeds of the sale. The balance shall be paid to:
1. The state, if the property was seized by an agency of the state or peace officer thereof;
2. The county, if the property was seized by the sheriff or an agency or peace officer of the county;
3. The Department of Fish and Wildlife Resources, if the property was seized by a peace officer of the Department of Fish and Wildlife or was seized by any other officer for violation of KRS Chapter 150;
4. The city, if the property was seized by the city or by an agency or peace officer thereof and the property was delivered to the city property clerk;
5. The city (ninety percent (90%) of the proceeds) and the sheriff (ten percent (10%) of the proceeds), if the property was seized by the city or by an agency or peace officer thereof and the property was delivered to the sheriff or the county police; or
6. The state, if the property was seized by any combination of agencies listed above.
(c) Subject to the duty to return confiscated firearms and ammunition to innocent owners pursuant to this section, all firearms and ammunition confiscated by a state or local law enforcement agency, all firearms ordered forfeited by a court, and all abandoned firearms and ammunition coming into the custody of a state or local law enforcement agency and not retained for official use shall be transferred to the Department of Kentucky State Police for disposition as provided by KRS 16.220. The transfer shall occur not more than ninety (90) days after the abandonment of the firearm or ammunition to the law enforcement agency or not more than ninety (90) days after its confiscation, unless a court requires the firearm or ammunition for use as evidence, in which case it shall be transferred to the Department of Kentucky State Police not more than ninety (90) days following the order of forfeiture by the court or after the court returns the firearm or ammunition from use as evidence. Prior to the sale of any firearm or ammunition, the law enforcement agency shall make a bona fide attempt to determine if the firearm or ammunition to be sold has been stolen or otherwise unlawfully obtained from an innocent owner and return the firearm and ammunition to its lawful innocent owner, unless that person is ineligible to purchase a firearm under federal law. This subsection relating to auction of firearms and ammunition shall not apply to firearms and ammunition auctioned by the Department of Fish and Wildlife that may be sold to individual purchasers residing in Kentucky who are eligible under federal law to purchase firearms and ammunition of the type auctioned.
(d) If property which is forfeited under any section of this code is determined by the trial court to be worthless, encumbered with liens in excess of its value, or otherwise a burdensome asset, the court may abandon any interest in such property. Property which is abandoned pursuant to this section shall be returned to the lawful claimant upon payment of expenses for keeping the property.
(e) Property which is forfeited under any section of this code may, upon order of the trial court, be retained for official use in the following manner. Property which has been seized by an agency of the state may be retained for official state use. Property which has been seized by an agency of county, city, or urban-county government may be retained for official use by the government whose agency seized the property or for official state use. Property seized by any other unit of government may be retained only for official state use. The expenses for keeping and transferring such property shall be paid by the unit of government by which the property is retained.
(2) Money which has been obtained or conferred in violation of any section of this code shall, upon conviction, be forfeited for the use of the state. This subsection shall not apply when, during the course of the proceeding in which the conviction is obtained, the person from whom said money was unlawfully acquired is identified.
(3) Property forfeited under any section of this code shall be disposed of in accordance with this section only after being advertised pursuant to KRS Chapter 424. This subsection shall not apply to property which is designed and suitable only for criminal use or to money forfeited under subsection (2) of this section.
(4) The trial court shall remit the forfeiture of property when the lawful claimant:
(a) Asserts his or her claim before disposition of the property pursuant to this section;
(b) Establishes his or her legal interest in the property; and
(c) Establishes that the unlawful use of the property was without his or her knowledge and consent. This subsection shall not apply to a lien holder of record when the trial court elects to dispose of the property pursuant to subsection (1)(b) of this section.
(5) For purposes of this section, “lawful claimant” means owner or lien holder of record.
(6) Before property which has had its identity obscured in violation of KRS 514.120 may be sold or retained for official use as provided in this section, the court shall cause a serial or other identifying number to be placed thereon, and a record of the number assigned shall be placed in the court order authorizing the sale or retention of the property. This number shall be assigned, whenever applicable, in consultation with the Department of Kentucky State Police and any other state or federal regulatory agency. The purchaser of the property shall be given a document stating that the property had been forfeited pursuant to law and that a number, shown on the document, has been assigned which shall be deemed as compliance of the owner with KRS 514.120. When property is returned to an owner pursuant to this section and its identity has been obscured by another person in violation of KRS 514.120, the court shall provide a document to the owner relieving him or her of liability for its continued possession. This document shall serve as evidence of compliance with KRS 514.120 by the owner or any person to whom he or she lawfully disposes of the property. This section shall not apply to any person after property has been sold or returned in compliance with this section who violates the provisions of KRS 514.120 with respect to that property.
(7) Before forfeiture of any property under this section, it shall be the duty of the trial court to determine if a lawful owner or claimant to the property has been identified or is identifiable. If a lawful owner or claimant has been identified or is identifiable, the court shall notify the owner or claimant that the property is being held and specify a reasonable period of time during which the claim may be made or may, in lieu thereof, order the return of the property to the lawful owner or claimant. If the lawful owner or claimant does not assert his or her claim to the property after notification or if he or she renounces his or her claim to the property, the property shall be disposed of as provided in this section. It shall be the duty of all peace officers and other public officers or officials having knowledge of the lawful owner or claimant of property subject to forfeiture to report the same to the trial court before the act of forfeiture occurs.
Effective: June 26, 2007
History: Amended 2007 Ky. Acts ch. 85, sec. 325, effective June 26, 2007. – Amended 2000 Ky. Acts ch. 405, sec. 2, effective July 14, 2000. — Amended 1998 Ky. Acts ch. 606, sec. 127, effective July 15, 1998. — Amended 1980 Ky. Acts ch. 193, sec. 5; and ch. 267, sec. 1, effective July 15, 1980. — Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 473, effective January 2, 1978. — Created 1974 Ky. Acts ch. 406, sec. 9, effective January 1, 1975.
Legislative Research Commission Note (6/26/2007). A technical correction has been made in subsection (4) of this section by the Reviser of Statutes pursuant to KRS 7.136.
 
 
ANNOTATION FOR THIS STATUTE:
 
Com. v. Fint, 940 S.W.2d 896 (Ky., 1997)
Upon the conviction of any person for the violation of any offense in this chapter … any personal property, including but not limited to vehicles or aircraft, used in the commission or furtherance of an offense under this chapter or in the transportation of stolen property shall be forfeited as provided in KRS 500.090 by court order and sold, destroyed or otherwise disposed of in accordance with KRS 500.090 by court order and sold, destroyed or otherwise disposed of in accordance with KRS 500.090.

 

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