BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1428 (Pavley) 8
As Introduced February 19, 2010
Hearing date: April 13, 2010
Penal Code
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CRIMINAL INVESTIGATION:
INTERCEPTION OF COMMUNICATIONS
HISTORY
Source: Los Angeles District Attorney's Office
Prior Legislation: AB 569 (Portantino) - Ch. 307, Stats. 2007
AB 74 (Washington) - Ch. 605, Stats. 2002
Proposition 21 - approved March 7, 2000
SB 1016 (Boatwright) - Ch. 971, Stats.
1995
SB 800 (Presley) - Ch. 548, Stats. 1993
SB 1120 (Presley) - 1991
SB 83 - amended out in part and
chaptered in part as SB 1499 (1988)
SB 1499 - Ch. 111, Stats. 1988
Support: California Peace Officers' Association; California
Police Chiefs Association; California District
Attorneys Association; California State Sheriffs'
Association
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice
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KEY ISSUES
SHOULD THE TYPE OF COMMUNICATIONS THAT MAY BE INTERCEPTED BY A
"WIRETAP" ORDER BE CHANGED TO INCLUDE THE INTERCEPTION OF MODERN
TYPES OF TWO-WAY CONTEMPORANEOUS ELECTRONIC COMMUNICATIONS?
SHOULD CHANGES BE MADE TO SOME OF THE TIME FRAMES IN THE
COMMUNICATION INTERCEPT PROVISIONS?
PURPOSE
The purpose of this bill is to amend the existing wiretap
provisions to include the interception of modern types of
contemporaneous two-way electronic communications and to make
other changes to the intercept law.
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.)
This bill provides instead that the superior court can make an
order authorizing the interception of wire or electronic
communications and makes conforming changes in other sections to
reference "electronic communications" instead of "electronic
digital pager or electronic cellular communications."
Existing law defines "wire communication, electronic pager
communication," "electronic cellular communication," and "aural
transfer" for the purposes of wiretaps. (Penal Code 629.51.)
Existing law defines aural transfer as a transfer containing the
human voice at any point between and including the point of
origin and the point of reception.
This bill defines "electronic communication" as any transfer of
signs, signals, writing, images, sounds, data, or intelligence
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of any nature in whole or in part by a wire, radio,
electromagnetic, photoelectric, or photo-optical system, but
does not include any of the following:
Any wire communication as defined in the section.
Any communication made through a tone-only paging
device.
Any communications from a tracking device.
Electronic funds transfer information stored by a
financial institution in a communications system used for
the electronic storage and transfer of funds.
This bill defines "tracking device" as an electronic or
mechanical device that permits the tracking of the movement of a
person or object.
This bill defines aural transfer as an electronic or mechanical
device that permits the tracking of the movement of a person or
object.
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 with in 48 hours of the oral approval. (Penal Code
629.56.)
This bill provides instead that the above apples to the
interception of wire or electronic communications and provides
that the filing with the judge must be by midnight of the second
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full court day after the oral approval.
Existing law provides that no order entered under this chapter
shall authorize the interception of any wire, electronic pager
or electronic cellular telephone or electronic communication for
a any period loner than is necessary to achieve the objective of
the authorization, nor in any event longer than 30 days. (Penal
Code 629.58.)
This bill clarifies that no order shall authorize interception
of any wire or electronic communication for any period longer
than is necessary to achieve the objective of the authorization,
nor in any event longer than 30 days, commencing on the day of
the initial interception, or 10 days after the issuance of the
order, whichever comes first.
Existing law requires that written reports showing what progress
has been made toward the achievement of the authorized
objective, including the number of intercepted communications,
be submitted at least every 6 days to the judge who issued the
order allowing the interception. (Penal Code 629.60.)
This bill provides instead that the reports shall be submitted
at least once every 10 days commencing with the date of the
signing of the order.
Existing law provides that whenever an order authorizing an
interception is entered the order shall require a report be made
to the Attorney General showing what persons, facilities, or
places are to be intercepted pursuant to the application, and
the action taken by the judge on each of these applications.
(Penal Code 629.61.)
Existing law requires the Attorney General to prepare and submit
an annual report to the Legislature, the Judicial Council and
the Director of the Administrative Office of the United States
Court on interceptions conducted under the authority of the
wiretap provisions and specifies what the report shall include.
(Penal Code 629.62.)
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Existing law provides that applications made and orders granted
shall be sealed by the judge. Custody of the applications and
orders shall be where the judge orders. The applications and
orders shall be disclosed only upon a showing of good cause
before a judge and shall not be destroyed except on order of the
issuing or denying judge, and in any event shall be kept for 10
years. (Penal Code 629.66.)
This bill provides that the orders shall also be disclosed for
compliance with the provisions of section 629.70.
Existing law provides that a defendant shall be notified that he
or she was identified as the result of an interception prior to
the entry of a plea of guilty or nolo contendere, or at least 10
days, prior to any trial, hearing or proceedings in the case
other than an arraignment or grand jury proceeding. Within 10
days prior to trial, hearing or proceeding the prosecution shall
provide to the defendant a copy of all recorded interceptions
from which evidence against the defendant was derived, including
a copy of the court order, accompanying application and monitory
logs. (Penal Code 629.70.)
Existing law provides that any person may move to suppress
intercepted communications on the basis that the contents or
evidence were obtained in violation of the Fourth Amendment to
the United States Constitution or of California electronic
surveillance provisions. (Penal Code 629.72.)
Existing law provides that the Attorney General, any deputy
attorney general, district attorney or deputy district attorney
or any peace officer who, by any means authorized by this
chapter has obtained knowledge of the contents of any wire,
electronic pager, or electronic cellular telephone communication
or evidence derived therefrom, may disclose the contents to one
of the individuals referred to in this section and to any
investigative or law enforcement officer as defined in
subdivision (7) of Section 2510 of Title 18 of the United State
Code to the extent that the disclosure is permitted pursuant to
Section 629.82 and is appropriate to the proper performance of
the official duties of the individual making or receiving the
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disclosure. No other disclosure, except to a grand jury, of
intercepted information is permitted prior to a public court
hearing by any person regardless of how the person may have come
into possession thereof.. (Penal Code 629.74.)
This bill provides that the contents of any wire or electronic
communication may also be disclosed to any judge or magistrate
in the state.
Existing law provides that if a law enforcement officer
overhears a communication relating to a crime that is not
specified in the wiretap order, but is a crime for which a
wiretap order could have been issued, the officer may only
disclose the information and thereafter use the evidence, if, as
soon as practical, he or she applies to the court for permission
to use the information. If an officer overhears a communication
relating to a crime that is not specified in the order, and not
one for which a wiretap order could have been issued or any
violent felony, the information may not be disclosed or used
except to prevent the commission of a crime. No evidence
derived from the wiretap can be used unless the officers can
establish that the evidence was obtained through an independent
source or inevitably would have been discovered. In all
instances, the court may only authorize use of the information
if it reviews the procedures used and determines that the
interception was in accordance with state wiretap laws. (Penal
Code 629.82 (b).)
Existing law provides that the provisions governing wiretap
sunsets on January 1, 2012. (Penal Code 629.98.)
This bill also makes conforming changes.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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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
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
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and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
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. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
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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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California's current wiretap law, (Penal Code 629.50),
sunsets on January 1, 2012, and allows wiretapping
(interception) of telephone communications and
electronic digital pages by law enforcement under
specific circumstances. This bill re-enacts the basic
provisions of the current wiretap statute, but also
updates California's wiretapping law to include
interception of communications by e-mail, blackberry,
instant messaging by phone and other forms of
contemporaneous two way electronic communication.
According to the author, the "Digital Age" in which we
now live has offered tremendous opportunities in
telecommunications for both consumers and businesses
alike, but unfortunately, has provided new options for
today's criminals to coordinate illicit activities. The
ability to intercept new forms of electronic
communication recognizes law enforcement's periodic need
to obtain critical evidence in some of the state's most
serious criminal investigations, especially when
pursuing organized crime and drug trafficking
operations. Criminals should not simply and trivially
be able to move to electronic communications and so
easily escape law enforcement's reach. California's
current wiretap law is used only through due process of
law, only for specific serious crimes and only as a last
resort when other investigative techniques have been
exhausted. California law enforcement and multi-agency
task forces have used the law with great success since
its enactment to solve some of the most difficult
crimes, while maintaining a strict emphasis on the
protection of individual privacy.
SB 1428 recognizes the expanding use of electronic
communications in the planning of criminal activity and
modernizes our state wiretap law so that court-approved
interceptions of communication from the latest
technologies are a relevant option for law enforcement
investigations.
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In Los Angeles County, it is estimated that 50-75 major
narcotic division cases (usually involving large
seizures and multiple defendants) and approximately
25-40 homicide cases are affected annually by
California's wiretap statute.
2. Federal Wiretapping Law
a. The Fourth Amendment Protects Telephone Communications
The United States Supreme Court ruled in Katz v. United States
(1967) 389 U.S. 347, 88 S.CT. 507, 19 L.ED.2D 576, that
telephone conversations were protected by the Fourth Amendment
to the United States Constitution. Intercepting a
conversation is a search and seizure similar to the search of
a citizen's home. Thus, law enforcement is constitutionally
required to obtain a warrant based on probable cause and to
give notice and inventory of the search.
b. Title III Allows Wiretapping under Strict Conditions
In 1968, Congress authorized wiretapping by enacting Title
III of the Omnibus Crime Control and Safe Streets Act. (See
18 USC Section 2510 et seq.) Out of concern that telephonic
interceptions do not limit the search and seizure to only the
party named in the warrant, federal law prohibits electronic
surveillance except under carefully defined circumstances.
The procedural steps provided in the Act require "strict
adherence," (United States v. Kalustian, 529 F.2d 585, 588
(9th Cir. 1976)) and "utmost scrutiny must be exercised to
determine whether wiretap orders conform to Title III."
Several of the relevant statutory requirements may be
summarized as follows:
i. Unlawfully intercepted communications or
non-conformity with the order of authorization may result
in the suppression of evidence.
ii. There are civil and criminal penalties for
statutory violations.
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iii. Wiretapping is limited to enumerated serious
felonies.
iv. Only the highest ranking prosecutor may apply for a
wiretap order.
v. Notice and inventory of a wiretap shall be served
on specified persons within a reasonable time but not later
than 90 days after the expiration of the order or denial of
the application.
vi. Judges are required to report each individual
interception. Prosecutors are required to report
interceptions and statistics to allow public monitoring of
government wiretapping.
c. The Necessity Requirement - Have Other Investigative
Techniques Been Tried Before Applying to the Court for a
Wiretap Order
Both federal and California law require that each wiretap
application include "a full and complete statement as to
whether or not other investigative procedures have been tried
and failed or why they reasonably appear to be unlikely to
succeed if tried or to be too dangerous." (18 USC Section
2518 (1)(c); Penal Code Section 629.50 (d).) Often referred
to as the "necessity requirement," it exists in order to limit
the use of wiretaps, which are highly intrusive. (United
States v. Bennett, 219 F.3d 1117, 1121 (9th Cir. 2000).) The
original intent of Congress in enacting such a provision was
to ensure that wiretapping was not resorted to in situations
where traditional investigative techniques would suffice to
expose the crime.
The United States Court of Appeals for the Ninth Circuit
recently suppressed wiretap evidence against a defendant and
reversed his conviction for failure of the government to make
a showing of necessity for the electronic monitoring. Purged
of material omissions and misstatements, the Court held that
the application failed to contain sufficiently specific facts
to satisfy the requirements of 18 USC Section 2518(1)(c).
(United States v. Blackmon, 2001 U.S. App. LEXIS 26428, 2001
Cal. Daily Op. Service 10328; 2001 Daily Journal DAR 12897.)
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3. DOJ's 2006 Legislative Report
On August 2, 2006, DOJ released the AG's "Annual Report on
Electronic Interceptions" for 2005. Specifically, the report
articulated the following:
Thirteen counties (Alameda, Fresno, Imperial, Los
Angeles, Monterey, Orange, Riverside, Sacramento, San
Bernardino, San Diego, San Luis Obispo, Stanislaus, and
Ventura) submitted reports to the AG's Office detailing
their use of electronic intercepts. The remaining 45
counties reported no electronic intercept activity
during 2005. The total number of intercept orders
granted by superior court judges increased from 190 in
2004 to 282 in 2005. Of the 282 wiretap orders granted
by California superior courts in 2005, 245 were used to
investigate narcotics offenses, while 36 were used to
investigate violent crimes.
Nine hundred and eighty individuals were arrested as a
result of the 282 wiretaps authorized in 2005. The cost
of electronic intercepts is as follows: Total Cost:
$25,514,664; Average Cost Per Arrest: $16,703; Average
Cost Per Conviction: $33,407; Average Cost Per Order:
$6,813. Of the total 283 wiretap orders sought, 282 were
granted by superior court judges. Ninety-five thousand,
one hundred and sixty nine incriminating conversations
were intercepted while 566,060 non-incriminating
conversations were intercepted.
4. Wire or Electronic Communication
Under existing law, the Attorney General or a district attorney
may make an application to a judge of the superior court for an
application authorizing the interception of a wire, electronic
pager or electronic cellular telephone. The law regulates the
issuance, duration and monitoring of these orders and imposes
safeguards to protect the public from unreasonable
interceptions. The law also defines wire communication,
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electronic pager communication and electronic cellular telephone
communication for the purposes of the intercept orders.
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This bill changes the types of equipment that may have an
intercept order placed on it to include wire or electronic
communication. It defines "electronic communication" as any
transfer of signals, writings, images, sounds, data, or
intelligence of any nature in whole or in part by a wire, radio,
electromagnetic photoelectric, or photo-optical system but does
not include any of the following: any communication defined as a
"wire communication" in the code; any communication made through
a tone-only paging device; any communication from a tracking
device or electronic funds transfer information stored by a
financial institution in a communications system used for the
electronic storage and transfer of funds.
The change to the types of communications is intended to reflect
current and future electronic communications. The intent is to
access simultaneous conversations going on with today's
technology. Regular email messages and accounts would still be
more appropriately accessed by a search warrant.
5. Emergency Interceptions .
The law provides that under specified circumstance and after
specific findings the judge may issue an oral approval for an
interception without an order provided that the approval for the
interception be conditioned upon the filing within 48 hours of a
written application for the order. This bill changes that time
frame to midnight of the second full court day after the oral
approval. Therefore, under this bill if the emergency order is
granted on a Friday the application would not need to be filed
until midnight on the following Tuesday where under existing law
it would have had to been filed at some point on Sunday.
IS THE EXTENSION OF TIME FOR THE FILING OF THE APPLICATION AFTER
AN EMERGENCY INTERCEPT ORDER APPROPRIATE?
6. Limit on Length of Intercept
Under existing law no order shall authorize the interception for
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any period longer than is necessary to achieve the objective of
the authorization, nor in any event longer than 30 days. This
bill provides that 30 days commences on the day of the initial
order or 10 days after the issuance, whichever comes first.
When the time frame starts under current law is vague as to
whether the 30 days begins to run at the initial order or when
the actual intercept begins. The language in this bill clarifies
this and conforms the language to federal law.
SHOULD THE 30 DAY TIME FRAME FOR AN ORDER COMMENCE AT THE TIME
OF THE INITIAL INTERCEPT OR 10 DAYS AFTER THE ORDER, WHICHEVER
COMES FIRST?
7. Time Frame for Reports
Reports must be made to the judge who issues any order for
interception of communications. Under existing law the reports
shall be filed with the court at the intervals the judge may
require but not less than one for each period of six days and
shall be made by any reliable means as determined by the court.
This bill extends the period in which reports must be made to
not less than 10 days. AB 74 (Washington) Chapter 605, Stats.
2002 changed the period in which reports must be filed was 72
hours instead of 6 days to give more flexibility. The sponsor
argues that judges still have the authority to order reports on
a more frequent basis.
SHOULD THE TIME FRAME FOR ISSUING REPORTS BE NOT MORE THAN EVERY
10 DAYS INSTEAD OF NOT MORE THAN EVERY 6 DAYS?
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