BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SB 35 (Pavley) - Electronic interceptions: authorization.
          
          Amended: January 6, 2014        Policy Vote: Public Safety 6-0
          Urgency: No                     Mandate: Yes
          Hearing Date: January 23, 2014                          
          Consultant: Jolie Onodera       
          
          SUSPENSE FILE.
          
          
          Bill Summary:  SB 35 would extend the sunset on provisions  
          governing the interception of electronic communications from  
          January 1, 2015, to January 1, 2020.

          Fiscal Impact: 
           Ongoing significant state costs (General Fund) potentially in  
            the millions of dollars, to the extent continuing the current  
            authorization for electronic interceptions leads to additional  
            state prison commitments. 
           Major ongoing non-reimbursable local law enforcement costs as  
            a result of continuing electronic interception authorization,  
            in the range of $31 million, according to the self-reported  
            personnel and resources costs from the counties reported to  
            the Department of Justice (DOJ) for 2012. (Costs related to  
            extending electronic interception authorization are likely  
            offset to a degree by related savings as a result of more  
            efficient law enforcement practices.)  
           Non-reimbursable local law enforcement costs, offset to a  
            degree by fine revenue, for violations of the electronic  
            interception statutes, which are punishable by a fine not  
            exceeding $2,500, imprisonment in the county jail for up to  
            one year, or by imprisonment pursuant to subdivision (h) of  
            Section 1170 of the Penal Code, or by both the fine and  
            imprisonment.
           Potential ongoing state law enforcement costs to DOJ for its  
            electronic interception efforts.
           Minor annual costs to DOJ, likely less than $50,000 (General  
            Fund) for the detailed annual report. 

          Background:  State wiretap law was originally enacted in 1989  
          and granted law enforcement officers the right to use  
          wiretapping while investigating specific types of crimes. SB  
          1428 (Pavley) Chapter 707/2010 expanded the use of wiretapping  
          to include the interception of modern types of electronic  






          SB 35 (Pavley)
          Page 1


          communications. 

          The number of electronic interception orders in California  
          averaged approximately 700 in both 2011 and 2012. According to  
          the DOJ 2011 California Electronic Interceptions Report, 697  
          interception orders were authorized in 21 counties, leading to  
          697 arrests and 193 convictions. The DOJ 2012 California  
          Electronic Interceptions Report indicates 707 interception  
          orders were authorized in 16 counties, leading to 961 arrests.  
          The majority of these arrests are currently pending prosecution,  
          with 58 convictions reported to date. The crimes for which  
          arrests were made vary, but charges were largely narcotics- (51  
          percent) or gang- (20 percent) related.

          Electronic interceptions are used as an investigative tool, one  
          of many at law enforcement's disposal. As one example of the  
          significant impact of electronic intercepts and their importance  
          as a tool for law enforcement agencies to use in investigating  
          crimes involving narcotics transactions, criminal street gangs,  
          and violence, the DOJ 2012 report cites the seizure of over $1.3  
          million, 799 pounds of methamphetamine, and 65 kilograms of  
          cocaine in Imperial County due to the assistance of 15  
          electronic intercept orders.

          Current law authorizes the Attorney General or the district  
          attorney to apply to the Superior Court for an order authorizing  
          interception of a wire or electronic communication under  
          specified circumstances. The crimes for which an electronic  
          interception order may be sought include murder, solicitation to  
          commit murder, bombing, use or threat to use weapons of mass  
          destruction, criminal gang activity, and importation, possession  
          for sale, transportation, manufacture or sale of heroin,  
          cocaine, PCP, or methamphetamine. Written reports must be  
          submitted at the discretion of the court, but at least every 10  
          days, to the judge who issues the order. 

          Current law requires the Attorney General to prepare and submit  
          a detailed annual report to the Legislature, the Judicial  
          Council, and the Director of the Administrative Office of the  
          Courts on electronic interceptions conducted during the  
          preceding year. Information for this report is to be provided to  
          the Attorney General by any prosecutorial agency seeking an  
          electronic interception order.
          
          Proposed Law: This bill would extend the sunset on provisions  







          SB 35 (Pavley)
          Page 2


          governing electronic interceptions from January 1, 2015, to  
          January 1, 2020. 

          Prior Legislation: AB 569 (Portantino) Chapter 391/2007,  
          extended the provisions authorizing the use of wiretaps by law  
          enforcement to January 1, 2012.
          
          SB 1428 (Pavley) Chapter 707/2010, expanded the scope of  
          wiretapping provisions to include the interception of modern  
          types of electronic communications. This bill also proposed to  
          extend the sunset on wiretap provisions to January 1, 2014,  
          however, the provision was amended out of the chaptered version  
          of the bill.
          
          SB 61 (Pavley) Chapter 663/2011, extended the sunset to January  
          1, 2015.

          Staff Comments: It is unknown how many electronic interception  
          orders would be authorized under SB 35 between January 1, 2015,  
          and January 1, 2020, or how many arrests, convictions, and  
          prison commitments would result directly from their use. In  
          order to obtain intercept authority, law enforcement must  
          already be investigating specific criminal activity, with  
          electronic interceptions to be used after all other normal  
          investigative procedures have been exhausted. It is unclear how  
          many investigations could have led to successful convictions  
          even in the absence of electronic interceptions. Moreover,  
          electronic interception evidence makes it more difficult to  
          prove a defendant's innocence and could ultimately result in an  
          indeterminable level of reduced trial and incarceration costs to  
          the extent that a defendant is more likely to plea bargain due  
          to the existence of electronic interception evidence of his or  
          her guilt. Nonetheless, if even two additional defendants are  
          sentenced to state prison directly attributable to an electronic  
          interception, the annual costs would exceed the threshold for  
          referral to the Suspense File.