BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 35
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          Date of Hearing:  June 10, 2014
          Chief Counsel:     Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    SB 35 (Pavley) - As Amended:  January 6, 2014



           SUMMARY  :   Extends the sunset date until January 1, 2020 on  
          provisions of California law which authorize the Attorney  
          General (AG), 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 or electronic  
          communications under specified circumstances.


           EXISTING LAW  

          1)Authorizes the AG, 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.  (Pen.  
            Code, § 629.50.)

          2)Defines "wire communication, electronic pager communication,"  
            "electronic cellular communication," and "aural transfer" for  
            the purposes of wiretaps.  (Pen. Code, § 629.51.)

          3)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.  (Pen. Code, § 629.51.)

          4)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.  (Pen. Code, § 629.52.)








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          5)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.  (Pen. Code, §  
            629.56.)

          6)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  
            any period loner than is necessary to achieve the objective of  
            the authorization, nor in any event longer than 30 days.   
            (Pen. Code, § 629.58.)

          7)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 six days to the judge who issued the  
            order allowing the interception.  (Pen. Code, § 629.60.)

          8)Provides that whenever an order authorizing an interception is  
            entered the order shall require a report be made to the AG  
            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.  (Pen. Code, §  
            629.61.)

          9)Requires the AG 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.  (Pen.  
            Code, § 629.62.)

          10)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.  (Pen. Code, § 629.66.)








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          11)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.  (Pen. Code, § 629.70.)

          12)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.  (Pen. Code, § 629.72.)

          13)Provides that the AG, any deputy AG, 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 there from, 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 Penal Code section 629.82 and is  
            appropriate to the proper performance of the official duties  
            of the individual making or receiving the 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.  (Pen. Code, § 629.74.)

          14)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  








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            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.  (Pen. Code, § 629.82, subd. (b).)

          15)Provides that the provisions governing wiretaps sunsets on  
            January 1, 2012.  (Pen. Code, § 629.98.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author. "Our state's  
            wiretap law, which includes both telephone and electronic  
            technologies, has been a successfull tool in solving the most  
            serious and difficult crimes in California.  It is used as an  
            investigatory tool of last resort for only the most serious  
            crimes. 

          "In the last three years (2011- 2013), wiretap investigations  
            involving drug trafficking have led to the seizure of over $90  
            million in narcotics and narcotic proceeds in Los Angeles  
            County alone. 

          "Our state's program is one of the most stringent in the country  
            and contains strong constitutional safeguards.  Moreover, any  
            wiretapping that violates the privacy protections of  
            California' law is punishable as a felony.  Given the  
            sophistication of many criminal operations today, our wiretap  
            program merits continuation."

           2)Overview of Wiretap Law  :  In general, California law prohibits  
            wiretapping.  (Pen. Code, § 631.)  However, a judge may grant  
            a wiretap if, after reviewing a law enforcement agency's  
            application, he or she makes specified findings.  (Pen. Code,  
            § 629.52.)  These findings include that law enforcement  
            exhaust all normal investigative procedures and fail prior to  
            applying for a wire intercept.  (Pen. Code, § 629.50.)  

          Prior to the enactment of Pen. Code, § 629.50 et seq.,  
            wiretapping statutes did not permit the interception of oral  








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            or electronic communications and permitted wiretapping only  
            during the investigation of specified offenses involving  
            controlled substances.  

          The Legislature enacted Section 629.50 et seq. in 1995 "in order  
            to expand California wiretap law to conform with federal law"  
            as it existed at the time.  (People v. Zepeda (2001) 87  
            Cal.App.4th 1183, 1196.) 

          Federal law regulates the interception of wire, oral, and  
            electronic communications under 18 United States Code Sections  
            2510 to 2520.  


           3)Prior Legislation:  
           
             a)   AB 74 (Washington), Chapter 605, Statutes of 2002,  
               extended the sunset date on California wiretap law from  
               January 1, 2003 to January 1, 2008.

             b)   AB 569 (Portantino), Chapter 391, Statutes of 2007,  
               extended the sunset date on California wiretap law from  
               January 1, 2008 to January 1, 2012.

             c)   SB 61 (Pavley), Chapter 663, Statutes of 2011, extended  
               the sunset date on California wiretap law from January 1,  
               2012 to January 1, 2015.

           4)Pending Legislation  : 

             a)   AB 1526 (Holden) is identical to this bill, and would  
               extend the sunset on California's wiretap law until January  
               1, 2020.  AB 1526 is pending referral in the Senate Rules  
               Committee.

             b)   SB 955 (Mitchell) extends the sunset on California's  
               wiretap law until January 1, 2020, and adds human  
               trafficking to the list of offenses for which law  
               enforcement may apply for a court ordered intercept of a  
               communication.  SB 955 is scheduled for hearing in this  
               Committee on June 17, 2014.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 








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          Los Angeles County District Attorney's Office (Sponsor
          San Diego County District Attorney's Office
          California State Sheriff's Association
          California District Attorneys Association
          California Police Chiefs Association
          California Narcotics Officers Association
          Peace Officers Research Association of California 
          Los Angeles County Probation Officers Union
          Association for Los Angeles Deputy Sheriffs
          Riverside Sheriffs' Association
          Los Angeles Police Protective League
           
            Opposition 
           
          None

           Analysis Prepared by  :    Gregory Pagan / PUB. S. / (916)  
          319-3744