BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 35
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          SENATE THIRD READING
          SB 35 (Pavley)
          As Amended  August 21, 2014
          Majority vote 

           SENATE VOTE  :32-0  
           
           PUBLIC SAFETY       7-0         APPROPRIATIONS      17-0        
           
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          |Ayes:|Ammiano, Melendez,        |Ayes:|Gatto, Bigelow,           |
          |     |Jones-Sawyer, Quirk,      |     |Bocanegra, Bradford, Ian  |
          |     |Skinner, Stone, Waldron   |     |Calderon, Campos,         |
          |     |                          |     |Donnelly, Eggman, Gomez,  |
          |     |                          |     |Holden, Jones, Linder,    |
          |     |                          |     |Pan, Quirk,               |
          |     |                          |     |Ridley-Thomas, Wagner,    |
          |     |                          |     |Weber                     |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           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.

          2)Defines "wire communication, electronic pager communication,"  
            "electronic cellular communication," and "aural transfer" for  
            the purposes of wiretaps.

          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.








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          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, phencyclidine  
            (PCP), methamphetamine or its precursors; possession of a  
            destructive device, weapons of mass destruction or restricted  
            biological  agents.

          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.

          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 longer than is necessary to achieve the objective  
            of the authorization, nor in any event longer than 30 days.

          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.

          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.

          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.

          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  








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            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.

          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.

          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. 

           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee:

          1)Ongoing significant state costs, potentially in the millions  
            of dollars, to the extent continuing current authorization for  
            wiretaps leads to an increase in state prison commitments.  
            (For example, according to the state Department of Justice  
            (DOJ), in California in 2012, 707 wiretaps were authorized in  
            16 counties, leading to 961 arrests and 58 convictions.)

          2)Major ongoing non-reimbursable local and federal law  
            enforcement costs, more than $30 million, as a result of  
            continuing wiretapping authorization, according to counties  
            reporting to DOJ in 2012.  

          3)Potential ongoing state law enforcement costs to DOJ for its  
            wiretapping efforts, though DOJ did not note any state  
            wiretaps in its statutory electronic interceptions report. 

          4)Minor costs to DOJ, less than $50,000, for its detailed annual  
            report.

           COMMENTS  :  According to the author, "Our state's wiretap law,  








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          which includes both telephone and electronic technologies, has  
          been a successful 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."

          Please see the policy committee analysis for a full discussion  
          of this bill.


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


                                                                FN: 0005177