BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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2
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AB 2210 (Fuentes) 0
As Amended June 22, 2010
Hearing date: June 29, 2010
Penal Code
MK:mc
INTERCEPTED COMMUNICATIONS:
HOSTAGE TAKING AND BARRICADING
HISTORY
Source: Los Angeles District Attorney's Office
Prior Legislation: None
Support: California District Attorneys Association; Riverside
Sheriffs' Association; Association for Los Angeles
Deputy Sheriffs; California State Sheriffs Association
Opposition: Taxpayers for Improving Public Safety
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD LAW ENFORCEMENT BE PERMITTED TO EAVESDROP IN A HOSTAGE OR
BARRICADE SITUATION WHEN CERTAIN FACTORS ARE MET AND A COURT LATER
ISSUES AN ORDER AUTHORIZING THE USE OF AN ELECTRONIC AMPLIFYING OR
RECORDING DEVICE?
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PURPOSE
The purpose of this bill is to allow law enforcement to
eavesdrop in a barricade or hostage situation.
Existing law authorizes the Attorney General, chief deputy
attorney general, chief assistant attorney general, district
attorney or the district attorney's designee to apply to the
presiding judge of the superior court for an order authorizing
the interception of wire, electronic digital pager, or
electronic cellular telephone communications under specified
circumstances. (Penal Code 629.50.)
Existing law specifies the crimes for which an interception
order may be sought: murder, kidnapping, bombing, criminal
gangs, and possession for sale, sale, transportation, or
manufacturing of more than three pounds of cocaine, heroin, PCP,
methamphetamine or its precursors, possession of a destructive
device, weapons of mass destruction or restricted biological
agents. (Penal Code 629.52.)
Existing law provides that the court may grant oral approval for
an emergency interception of wire, electronic pager or
electronic cellular telephone communications without an order as
specified. Approval for an oral interception shall be
conditioned upon filing with the court, within 48 hours of the
oral approval, a written application for an order. Approval of
the ex parte order shall be conditioned upon filing with the
judge within 48 hours of the oral approval. (Penal Code
629.56.)
Existing law provides that any person who, by means of any
machine, instrument, or contrivance, or in any other manner,
intentionally taps, or makes any unauthorized connection,
whether physically, electrically, acoustically, inductively or
otherwise, with any telegraph or telephone wire, line, cable or
instruments including the wire, line, cable or instrument of any
internal telephonic communication system, or who willfully and
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without the consent of all parties to the communication, or in
any unauthorized manner, reads, or attempts to read, or to learn
the contents or meaning of any message, report, or communication
while the same is in transit or passing over any wire, line or
cable, or is being sent from, or received at any place within
this state, or who uses, or attempts to use, in any manner, or
for any purpose, or to communicate in any way, any information
so obtained, or who aids, agrees with, employs, or conspires
with any person or persons to unlawfully do, or permit, or cause
to be done any of the acts is guilty of a wobbler. No evidence
obtained in violation of this section shall be admissible in any
judicial, administrative, legislative, or other proceeding.
(Penal Code 631.)
Existing law provides that every person who, intentionally and
without the consent of all parties to a confidential
communication, by means of any electronic amplifying or
recording device, eavesdrops upon or records the confidential
communication whether the communication is carried on among the
parties in the presence of one another or by means of a
telegraph, telephone, or other device except a radio is guilty
of a wobbler. (Penal Code 632.)
Existing law provides that any person who has been injured as a
violation of prohibitions on the taping or listening in on
confidential communications shall be entitled to specified civil
damages. (Penal Code 637.2.)
Existing federal law provides the principal prosecuting attorney
of any state, or the principal prosecuting attorney of any
political subdivision thereof, if such attorney is authorized by
a statute of that state to make application to a state court
judge of competent jurisdiction for an order authorizing or
approving the interception of wire, oral, or electronic
communications, may apply to such judge for, and such judge may
grant in conformity with section 2518 of this chapter (18 USCS
2518) and with the applicable state statute an order
authorizing, or approving the interception of wire, oral or
electronic communications by investigative or law enforcement
officers having responsibility for the investigation of the
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offense as to which the application is made, when such
interception may provide or has provided evidence of the
commission of the offense of murder, kidnapping, gambling,
robbery, bribery, extortion, or dealing in narcotic drugs,
marijuana or other dangerous drugs, or other crime dangerous to
life, limb, or property, and punishable by imprisonment for more
than one year, designated in any applicable state statute
authorizing such interception, or any conspiracy to commit any
of the foregoing offenses. (18 USCS 2516 (2).)
Existing federal law provides that notwithstanding any other
provision of this chapter (18 USCS 2510 et seq.), any
investigative or law enforcement officer, specially designated
by the Attorney General, the deputy attorney general, the
associate attorney general, or by the principal prosecuting
attorney of any state or subdivision thereof acting pursuant to
a statute of that state, who reasonably determines:
(a) an emergency situation exists that involves:
(i) immediate danger of death or serious physical injury
to any person;
(ii) conspiratorial activities threatening the national
security interest; or
(iii) conspiratorial activities characteristic of organized
crime, that requires a wire, oral, or electronic
communication to be intercepted before an order
authorizing such interception can, with due diligence, be
obtained; and
(b) there are grounds upon which an order could be entered
under this chapter [18 USCS 2510 et seq.] to authorize
such interception, may intercept such wire, oral, or
electronic communication if an application for an order
approving the interception is made in accordance with this
section within forty-eight hours after the interception has
occurred, or begins to occur. In the absence of an order,
such interception shall immediately terminate when the
communication sought is obtained or when the application for
the order is denied, whichever is earlier. In the event
such application for approval is denied, or in any other
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case where the interception is terminated without an order
having been issued, the contents of any wire, oral, or
electronic communication intercepted shall be treated as
having been obtained in violation of this chapter [18 USCS
2510 et seq.], and an inventory shall be served as
provided for in subsection (d) of this section on the person
named in the application. (18 USCS 2518 (7).)
Existing case law provides states are authorized to enact their
own eavesdropping laws so long as they are at least as
restrictive as federal law. (People v. Avelino Leon (2007) 40
Cal.4th 376, 384-385.) State law which is as restrictive as -
and written in compliance with - the federal statute is
permissible and will withstand scrutiny. (Leon, supra, 40
Cal.4th at pp. 384-385.)
This bill provides that notwithstanding other prohibitions, and
in accordance with federal law, a designated peace officer may
use or authorize the use of, an electronic amplifying or
recording device to eavesdrop on or record, or both, any oral
communication within a particular location in response to an
emergency situation involving the taking of a hostage or
hostages or barricading of a location if all of the following
are satisfied:
The officer reasonably determines that an emergency
situation exists involving the immediate danger of death or
serious physical injury to any person within the meaning of
Section 2518(7)(a)(i) of Title 18 of the United States
Code.
The officer reasonably determines that the emergency
situation requires that eavesdropping on oral communication
occur immediately.
There are grounds upon which an order could be obtained
pursuant to Section 2516(2) of Title 18 of the Untied
States Code in regard to the offenses enumerated therein.
This bill provides that only a peace officer who has been
designated by either a district attorney in the county where the
emergency exists, or by the attorney general to make the
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necessary determinations may make those determinations for
purposes of this section.
This bill provides that if the determination is made by a
designated peace officer that an emergency situation exists, a
peace officer shall not be required to knock and announce his or
her presence before entering, installing, and using any
electronic amplifying or recording devices.
This bill provides that if the determination is made by a
designated peace officer that an emergency situation exists and
an eavesdropping device has been deployed, an application for an
order approving the eavesdropping shall be made within 48 hours
of the beginning of the eavesdropping and shall comply with the
requirements of Penal Code Section 629.50.
This bill provides that a court may grant an application
authorizing the use of electronic amplifying or recording
devices to eavesdrop on and record otherwise confidential oral
communications in barricade or hostage situations where there is
probable cause to believe that an individual is committing, has
committed, or is about to commit and offense listed in Section
25216(2) of Title 18 of the United States Code.
This bill provides that the contents of any oral communication
overheard pursuant to this section shall be recorded on tape or
other comparable device. The recording of the contents shall be
done so as to protect the recording from editing or other
alterations.
This bill provides that a "barricading" occurs when a person
refuses to come out from a covered or enclosed position.
Barricading also occurs when a person is held against his or her
will and the captor has not made a demand.
This bill provides that a "hostage situation" occurs when a
person is held against his or her will and the captor has made a
demand.
This bill provides that a judge shall not grant an application
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made pursuant to this section in anticipation that such an
emergency will arise.
This bill provides that a judge shall grant an application
authorizing the use of electronic amplifying or recording
devices to eavesdrop on and record otherwise confidential oral
communications in barricade or hostage situations where there is
probable cause to believe that an individual is committing, has
committed, or is about to commit an offense listed in Section
2516(2) of Title 18 of the United States Code, and only if the
peace officer has fully complied with requirements of this
section.
This bill provides that if an application is granted pursuant to
this section, an inventory shall be served pursuant to Section
629.68.
This bill provides that it does not require that a peace officer
designated undergo POST training on wiretaps.
This bill provides that a peace officer who has been designated
to use an eavesdropping device shall cease use of the device
upon the termination of the barricade or hostage situation, or
upon the denial by a judge of an application for an order to
approve the eavesdropping, whichever is earlier.
This bill , as proposed to be amended, provides that nothing in
this section shall be deemed to affect the admissibility or
inadmissibility of evidence.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
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reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
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have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Currently, when law enforcement officers respond to a
barricaded suspect situation or a hostage situation,
they are unable to lawfully deploy eavesdropping devices
to listen in on the location. California Penal Code
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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Section 632 makes it a crime to eavesdrop upon
confidential communications by means of any electronic
amplifying or recording device, in the absences of
consent from all parties. There is no search warrant
exception to this prohibition.
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.
The use of eavesdropping devices is currently prohibited
under state law but is allowed under federal law.
Federal law allows states to implement their own laws so
long as the state laws are at least as protective as
federal law.
Eavesdropping is the interception of oral communications
(not wiretapping which is the interception of electronic
communications), also referred to as "bugging".
California law makes it a crime to eavesdrop on an oral
communication without the consent of all parties. (See
Penal Code Section 632) There is no exception to this
prohibition for law enforcement, even in an emergency
situation. Similarly, there is no provision for
eavesdropping under California's wiretap statute.
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.
AB 2210 tracks the requirements of federal law. It
requires the officer making the determination to be an
officer previously designated by District Attorney. The
officer must reasonably determine that an emergency
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exists that involves immediate danger of death or
serious physical 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 approving the interception
is made 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. Except to prevent the commission of
a public offense.
2. Use of Listening Device in Barricade or Hostage Situation
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Generally, under existing law, wiretapping, eavesdropping and
recording of confidential communications is prohibited except
under specified circumstances where law enforcement has a court
order authorizing such wiretap, eavesdropping or recording or
there is specific statutory authorization allowing such
activity.
While under federal law, law enforcement has the authority under
specified circumstances, to use a listening device in a federal
barricade or hostage situation and later go to the court to get
an order to affirm the earlier decision to use the device. No
such law exists currently in California.
This bill would allow specified peace officers in California to
use an electronic recording or amplifying device to eavesdrop on
and record the otherwise confidential communications of
individuals within a location when responding to an emergency
situation that involves the taking of a hostage or the
barricading of a location. All of the following conditions must
be met in order for an eavesdropping or amplifying device to be
used:
The officer reasonably determines that an emergency
situation exists involving the immediate danger of death or
serious physical injury to any person within the meaning of
federal law.
The officer reasonably determines that the emergency
situation requires that eavesdropping or oral communication
occur immediately.
There are grounds upon which an order could be obtained
pursuant to federal law in regard to the offenses
enumerated therein.
Federal law defines an emergency situation as involving:
immediate danger of death or serious physical injury to
any person;
conspiratorial activities threatening the national
security interest; or
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conspiratorial activities characteristic of organized
crime, that requires a wire, oral, or electronic
communication to be intercepted before an order authorizing
such interception can, with due diligence, be obtained.
(18 USCS 2518 (7) (a).)
As with federal law, this bill would require the peace officer
to file with the court an application within 48 hours of the
beginning of the eavesdropping seeking an order authorizing the
use of the eavesdrop on otherwise confidential communications in
the barricade or hostage situation. If the order is denied the
eavesdropping must cease (if it is still going on.)
This bill specifically states that it does not affect the
admissibility of evidence, thus just because an order is granted
does not mean that any recorded conversation will be admissible
if it would otherwise be deemed inadmissible.
Existing provisions providing for civil damages in Penal Code
Section 637.2 would also apply to inappropriate uses of the
process created by this bill.
Supporters argue that this is a "lifesaving measure" allowing
law enforcement to take control of an emergency situation and to
use these devices to determine what is going on behind the
barricade or in a hostage situation in order to resolve the
situation safely.
3. Technical Amendment
The author intends to take an amendment in Committee to delete
"at trial" from page 4, line 17.
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