BILL ANALYSIS Ó SB 35 Page 1 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.) SB 35 Page 2 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.) SB 35 Page 3 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 SB 35 Page 4 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 SB 35 Page 5 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 SB 35 Page 6 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