BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

                                                                     1
                                                                     4
                                                                     2
          SB 1428 (Pavley)                                           8
          As Introduced February 19, 2010 
          Hearing date:  April 13, 2010
          Penal Code
          MK:dl

                               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

                                           




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageB

                                      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  




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageC

          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  




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageD

          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.)





                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageE

           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  




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageF

          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  




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageG

          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  




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageH

               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:
          ---------------------------
          <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).




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageI


              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. 




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageJ


              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.




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageK

               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.)




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageL

             
          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,  




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageM

          electronic pager communication and electronic cellular telephone  
          communication for the purposes of the intercept orders.










































                                                                     (More)











          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  




                                                                     (More)







                                                           SB 1428 (Pavley)
                                                                      PageO

          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?  


                                   ***************