BILL ANALYSIS Ó SB 35 Page 1 SENATE THIRD READING SB 35 (Pavley) As Amended August 21, 2014 Majority vote SENATE VOTE :32-0 PUBLIC SAFETY 7-0 APPROPRIATIONS 17-0 ----------------------------------------------------------------- |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. SB 35 Page 2 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 SB 35 Page 3 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, SB 35 Page 4 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