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
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          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
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            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