BILL ANALYSIS AB 2210 Page 1 Date of Hearing: April 28, 2010 ASSEMBLY COMMITTEE ON APPROPRIATIONS Felipe Fuentes, Chair AB 2210 (Fuentes) - As Amended: April 7, 2010 Policy Committee: Public SafetyVote: 7-0 Urgency: No State Mandated Local Program: No Reimbursable: SUMMARY This bill authorizes a designated peace officer to use warrantless eavesdropping and record any oral communication in a particular location in response to an emergency situation involving a hostage and/or a barricade if the officer determines all of the following: a) An emergency situation exists involving the immediate danger of death or serious injury to any person pursuant to federal law. b) The emergency situation requires the eavesdropping occur immediately. c) There are grounds upon which an eavesdropping court order could be obtained. If the determination is made by the designated peace officer that an emergency situation exists and communications are overheard, application for an order approving the eavesdropping must be made within 48 hours. FISCAL EFFECT Minor absorbable court costs to the extent a court is required to make a determination regarding a retroactive eavesdropping order that may have otherwise not been requested. Potential, likely minor, annual state incarceration costs to the extent this bill results in more effective prosecution that results in additional state prison commitments. New AB 2210 Page 2 incarceration costs, however, are likely to be minor, as in most hostage and barricade situations offenders are eventually convicted, if, as noted by the L.A. D.A.'s Office, they survive. COMMENT 1)Rationale . The author's intent is to stay within the confines of federal law, while creating a process for an emergency oral eavesdropping approval to protect the lives of hostages. According to the author, "AB 2210 closes a loophole in existing law relative to law enforcement conduct in barricade and hostage situations to clarify that law enforcement who deploy eavesdropping techniques in limited circumstances are not subject to civil or criminal liability." "Suspects who barricade themselves or who take hostages pose a high level of risk to responding officers, hostages (when present), and the general public. Common sense dictates that peace officers should have the maximum possible amount of information about the premises and parties, to enable them to best resolve the situation and minimize the risk of injury of death. "AB 2210 would authorize California law enforcement officers to use eavesdropping devices under two very limited but extremely dangerous situations involving suspects who barricade themselves inside a location or who have taken innocent persons hostage." 2)Federal Law v. State Law . AB 2210 reflects the requirements of federal warrantless eavesdropping law. It requires the determining officer to be previously so designated by District Attorney. The officer must determine an emergency exists that involves immediate danger of death or serious injury. The need for the eavesdropping must exist before a court order allowing such an interception could be obtained with due diligence. An application for a court order must be made within 48 hours of the interception. The contents of the communication must be recorded. Finally, if the order is denied, the contents of the communication must be suppressed and may not be disclosed or used, as specified. AB 2210 Page 3 As noted by the Assembly Public Safety analysis, this bill is more restrictive than the federal statute in two ways. First, this bill authorizes only emergency warrantless eavesdropping. Second, this bill allows warrantless eavesdropping only in one of the three outlined situations designated under federal law: the immediate danger to any person. AB 2210 expands California law, which allows application for oral approval of an interception during an emergency to be made only by the AG or district attorney, or their designees. AB 2210 authorizes an emergency eavesdropping determination to be made by a designated peace officer. Second, California law requires that approval for an emergency interception must be filed with a judge within 48 hours of the oral approval. This bill authorizes the application to be made within 48 hours of the eavesdropping. 3)Support . The L.A. District Attorney's Office notes the emergency nature of this proposal and cites the parallels to federal law and the need to protect hostages. Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081