BILL ANALYSIS                                                                                                                                                                                                    

                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

          SB 955 (Mitchell)                                           
          As Introduced: February 6, 2014 
          Hearing date:  April 8, 2014
          Penal Code

                            INTERCEPTION OF COMMUNICATIONS  


          Source:  County of Los Angeles

          Prior Legislation:SB 61 (Pavley) - Ch. 663, Stats. 2011
                         SB 1428 (Pavley) - Ch. 707 Stats. 2010
                         AB 569 (Portantino) - Ch. 307, Stats. 2007
                         AB 74 (Washington) - Ch. 605, Stats. 2002
                         Proposition 21 - approved March 7, 2000
                                   SB 1016 (Boatwright) - Ch. 971, Stats.  
                                   SB 800 (Presley) - Ch. 548, Stats. 1993
                                   SB 1120 (Presley) - 1991
                                   SB 83 - amended out in part and  
          chaptered in part as SB 1499 (1988)
                                    SB 1499 - Ch. 111, Stats. 1988

          Support: California Alliance of Child and Family Services;  
                   California Police Chiefs Association; California State  
                   Sheriffs' Association; City and County of San  
                   Francisco; Los Angeles District Attorney; Urban  
                   Counties Caucus;  

          Opposition:American Civil Liberties Union; California Attorneys  
          for Criminal Justice



                                                          SB 955 (Mitchell)

                                         KEY ISSUE



          The purpose of this bill is to add "human trafficking" to the  
          crimes for which an interception order may be sought.
           Existing law  authorizes the Attorney General, 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.  (Penal Code  629.50 et. seq.)

           Existing law  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. (Penal Code   

           Existing law  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.  (Penal  
          Code 629.58.)

           Existing law  requires that written reports showing what progress  
          has been made toward the achievement of the authorized  
          objective, including the number of intercepted communications,  



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          be submitted at least every 10 days to the judge who issued the  
          order allowing the interception.  (Penal Code  629.60.)

           Existing law  requires the Attorney General 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.   
          (Penal Code  629.62.)

           Existing law  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. (Penal Code  629.66.)

           Existing law  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.  (Penal Code  629.70.)

           Existing law  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.  (Penal Code  629.72.)

           Existing law  provides that the Attorney General, any deputy  
          attorney general, 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 communication or evidence  
          derived therefrom, may disclose the contents to one of the  



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          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  
          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.. (Penal Code  629.74.)

           Existing law  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 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.  (Penal  
          Code  629.82 (b).)

           Existing law  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.  (Penal Code  629.52.)
           This bill  adds "human trafficking" to the crimes for which an  
          interception order may be sought.



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           Existing law  provides that the provisions governing wiretap  
          sunsets on January 1, 2015.  (Penal Code  629.98.)

           This bill  extends that sunset to January 1, 2020.


          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy, known as "ROCA"  
          (which stands for "Receivership/

          Overcrowding Crisis Aggravation"), the Committee held measures  
          that created a new felony, expanded the scope or penalty of an  
          existing felony, or otherwise increased the application of a  
          felony in a manner which could exacerbate the prison  
          overcrowding crisis.  Under these principles, ROCA was applied  
          as a content-neutral, provisional measure necessary to ensure  
          that the Legislature did not erode progress towards reducing  
          prison overcrowding by passing legislation, which would increase  
          the prison population.   

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order requiring the state to reduce its prison  
          population to 137.5 percent of design capacity.  The State  
          submitted that the, ". . .  population in the State's 33 prisons  
          has been reduced by over 24,000 inmates since October 2011 when  
          public safety realignment went into effect, by more than 36,000  
          inmates compared to the 2008 population . . . , and by nearly  
          42,000 inmates since 2006 . . . ."  Plaintiffs opposed the  



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          state's motion, arguing that, "California prisons, which  
          currently average 150% of capacity, and reach as high as 185% of  
          capacity at one prison, continue to deliver health care that is  
          constitutionally deficient."  In an order dated January 29,  
          2013, the federal court granted the state a six-month extension  
          to achieve the 137.5 % inmate population cap by December 31,  

          The Three-Judge Court then ordered, on April 11, 2013, the state  
          of California to "immediately take all steps necessary to comply  
          with this Court's . . . Order . . . requiring defendants to  
          reduce overall prison population to 137.5% design capacity by  
          December 31, 2013."  On September 16, 2013, the State asked the  
          Court to extend that deadline to December 31, 2016.  In  
          response, the Court extended the deadline first to January 27,  
          2014 and then February 24, 2014, and ordered the parties to  
          enter into a meet-and-confer process to "explore how defendants  
          can comply with this Court's June 20, 2013 Order, including  
          means and dates by which such compliance can be expedited or  
          accomplished and how this Court can ensure a durable solution to  
          the prison crowding problem."

          The parties were not able to reach an agreement during the  
          meet-and-confer process.  As a result, the Court ordered  
          briefing on the State's requested extension and, on February 10,  
          2014, issued an order extending the deadline to reduce the  
          in-state adult institution population to 137.5% design capacity  
          to February 28, 2016.  The order requires the state to meet the  
          following interim and final population reduction benchmarks:

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and
                 137.5% of design bed capacity by February 28, 2016. 

          If a benchmark is missed the Compliance Officer (a position  
          created by the February 10, 2016 order) can order the release of  
          inmates to bring the State into compliance with that benchmark.   

          In a status report to the Court dated February 18, 2014; the  
          state reported that as of February 12, 2014, California's 33  



                                                          SB 955 (Mitchell)

          prisons were at 144.3 percent capacity, with 117,686 inmates.   
          8,768 inmates were housed in out-of-state facilities.

          The ongoing prison overcrowding litigation indicates that prison  
          capacity and related issues concerning conditions of confinement  
          remain unresolved.  While real gains in reducing the prison  
          population have been made, even greater reductions may be  
          required to meet the orders of the federal court.  Therefore,  
          the Committee's consideration of ROCA bills -bills that may  
          impact the prison population - will be informed by the following  

                 Whether a measure erodes realignment and impacts the  
               prison population;
                 Whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 Whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 Whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and,
                 Whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.


          1.  Need for the bill  

          According to the author:

               Penal Code section 629.52(a) enumerates the offenses  
               for which a wiretap may be authorized.  This list  
               includes certain narcotic offenses, murder, aggravated  
               kidnapping, any felony violation of Penal Code section  
               186.22, and attempts or conspiracies to commit these  
               enumerated offenses.

               Notably absent from Penal Code section 629.52(a) is  
               Penal Code section 236.1 et seq., human trafficking.   



                                                          SB 955 (Mitchell)

               Proposition 35, overwhelming passed by 81% of the  
               voters in 2012, resulted in increased prison terms for  
               human traffickers, now requires convicted sex  
               traffickers to register as sex offenders, and mandates  
               law enforcement training on human trafficking.<1>

               Human trafficking is a form of modern-day slavery. It  
               is a crime that involves the use of force, fraud, or  
               coercion to recruit, harbor, transport, provide or  
               obtain a person for the purposes of sexual or labor  
               exploitation. Victims of human trafficking are young  
               children, teenagers, men, and women. Approximately  
               800,000 victims annually are trafficked across  
               international borders worldwide, and between 14,500 and  
               17,500 of those victims are trafficked into the United  
               States according to the U.S. Department of State.   
               After drug dealing, trafficking humans is tied with  
               arms dealing as the second largest criminal industry in  
               the world, and is the fastest growing.<2>

          According to the Governor's Office of Emergency Services:
               "It is estimated that California is amongst the top  
               three states in the nation for human trafficking.  By  
               its very nature, human trafficking, in all of its  
               forms, is largely hidden from view.  This is due in  
               part to the large immigrant communities, within  
               California, which provide for good concealment of a  
               trafficking operation - in many cases, these persons  
               can be hidden in plain sight.  Many of these  
               communities are not trusting of law enforcement and  
               tend to maintain cultural norms - some which dictate  
               maintaining silence in the face of illegal  

               The state's extensive international border, its major  
               harbors and airports, its powerful economy and  
          <1> A provision that requires all registered sex offenders to  
          disclose their internet accounts has been stayed by a federal  
          judge as part of a temporary restraining order.



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               accelerating population, its large immigrant  
               population and its industries make it a prime target  
               for traffickers.  Apart from the harm that this crime  
               causes its victims, the infrastructure that is  
               necessary to support this heinous crime can serve the  
               needs of terrorist wishing to smuggle themselves  
               and/or dangerous weapons into the country."

               Los Angeles is one of the top three points of entry  
               into this country for victims of slavery and  
               trafficking. This trafficking route occurs in a  
               triangle from Los Angeles, California to Las Vegas,  
               Nevada, and back to Sacramento, California.   
               Immigration agents estimate that 10,000 women are  
               being held in Los Angeles' underground brothels; this  
               does not include the thousands of victims in domestic  
               work, sweatshops or other informal industries.<3>

               Like drug trafficking organizations (DTOs), human  
               trafficking organizations are resistant to  
               conventional law enforcement techniques.  They are  
               difficult to infiltrate and involve uncooperative  
               "users."  The victims of human trafficking are  
               frequently runaway minors who have been forced into  
               prostitution by their pimps.  

               The interception of wire and electronic  
               communications (cell phones, text messages, etc.)  
               comprises the ideal tool to investigate, infiltrate,  
               dismantle, and prosecute human trafficking  
               organizations.  The ubiquity of cell phones in  
               virtually all sophisticated criminal enterprises  
               cannot be understated.  There is no more powerful and  
               irrefutable evidence that can be presented in court  
               than the very words of the defendant describing his  
               or her involvement in the charged crime.  Every  
               effort should be made to enable the prosecution of  
               the pimps without forcing their victims to testify.

               California's wiretap statutes are based on the  




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               federal wiretap statutes, which are contained in  
               Title 18 of the United States Code, sections  
               2510-2522.  The list of crimes for which a federal  
               wiretap may be obtained is far more expansive than  
               California's, and includes sex trafficking of  
               children, sexual exploitation of children, and  
               selling or buying of children. 

               The voters of California through Proposition 35 and  
               the California Legislature through the passage of  
               numerous pieces of legislation to investigate and  
               prosecute perpetrators of human trafficking and  
               provide assistance to the victims of human  
               trafficking have demonstrated the intent to combat  
               all forms of human trafficking in California.

               In order to continue to crack down on the scourge of  
               human trafficking, SB 955 provides law enforcment  
               with access to one of the most powerful investigatory  
               tools available to California law enforcment.

          2.   Federal Wiretapping Law
              a.        The Fourth Amendment Protects Telephone  

              The United States Supreme Court ruled in Katz v. United  
              States (1967) 389 U.S. 347, 88 S.CT. 507, 19 L.ED.2D 576,  
              that telephone conversations were protected by the Fourth  
              Amendment to the United States Constitution.  Intercepting a  
              conversation is a search and seizure similar to the search  
              of a citizen's home.  Thus, law enforcement is  
              constitutionally required to obtain a warrant based on  
              probable cause and to give notice and inventory of the  
              b.        Title III Allows Wiretapping Under Strict  
              In 1968, Congress authorized wiretapping by enacting Title  
              III of the Omnibus Crime Control and Safe Streets Act.  (See  



                                                          SB 955 (Mitchell)

              18 USC Section 2510 et seq.)  Out of concern that telephonic  
              interceptions do not limit the search and seizure to only  
              the party named in the warrant, federal law prohibits  
              electronic surveillance except under carefully defined  
              circumstances.  The procedural steps provided in the Act  
              require "strict adherence."  (United States v. Kalustian,  
              529 F.2d 585, 588 (9th Cir. 1976)), and "utmost scrutiny  
              must be exercised to determine whether wiretap orders  
              conform to Title III.")  Several of the relevant statutory  
              requirements may be summarized as follows:
                 i.             Unlawfully intercepted communications or  
                    non-conformity with the order of authorization may  
                    result in the suppression of evidence.
                         ii.            Civil and criminal penalties for statutory  
                 iii.           Wiretapping is limited to enumerated  
                 serious felonies.
                 iv.            Only the highest ranking prosecutor may  
                 apply for a wiretap order.
                 v.             Notice and inventory of a wiretap shall be  
                    served on specified persons within a reasonable time  
                    but not later than 90 days after the expiration of the  
                    order or denial of the application.
                 vi.            Judges are required to report each  
                    individual interception.  Prosecutors are required to  
                    report interceptions and statistics to allow public  
                    monitoring of government wiretapping.
              c.        The Necessity Requirement - Have Other  
                Investigative Techniques Been Tried Before    Applying to  
                the Court for a Wiretap Order?

          3.  Wire or Electronic Communication
          Under existing law, the Attorney General or a district attorney  
          may make an application to a judge of the superior court for an  
          application authorizing the interception of a wire, electronic  
          pager or electronic cellular telephone.  The law regulates the  
          issuance, duration and monitoring of these orders and imposes  
          safeguards to protect the public from unreasonable  



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          interceptions.  The law also limits which crimes for which an  
          interception may be sought to the following:

                 Importation, possession for sale, transportation or sale  
               of controlled substances;
                 Murder or solicitation of murder or commission of a  
               felony involving a destructive device;
                 A felony in violation of prohibitions on criminal street  
                 Possession or use of a weapon of mass destruction; and,
                 An attempt or conspiracy to commit any of the above.

          4. Human Trafficking  

          This bill would add human trafficking to the crimes for which an  
          interception (wiretap) may be sought.  According to the sponsor:

               SB 995 would add human trafficking to the list of  
               crimes that may use wiretapping as an investigative  
               tool.  California is one of the top three states in the  
               nation for human trafficking, and Los Angeles County is  
               one of the top three points of entry into this country  
               for victims of slavery and trafficking.  California's  
               extensive international border, its major harbors and  
               airports, its powerful economy and accelerating  
               population, make it a prime target for traffickers.  By  
               its nature, human trafficking in all of its forms is  
               largely hidden from view and causes untold harm to  

               After drug trafficking, human trafficking is tied with  
               arms dealing as the second largest criminal industry in  
               the world and is expanding.  Like drug trafficking  
               organizations, human trafficking organizations are  
               highly resistant to conventional law enforcement  
               techniques and difficult to infiltrate.  Victims of  
               human trafficking are frequently uncooperative or they  
               refuse to testify in court amidst fear of reprisal from  
               their traffickers.  

               SB 955 is a critical tool to allow law enforcement to  



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               gather evidence from electronic communications used by  
               traffickers.  Communications collected through a  
               wiretap can be one of the most powerful and irrefutable  
               pieces of evidence that can be presented in court and  
               can often mitigate the need for victims to testify.


          5.  Sunset  

          This bill extends the sunset on the wiretap provisions to  
          January 1, 2020.
          6.  Support  

          The California State Sheriffs' Association supports this bill  

               Given the serious nature of human trafficking and its  
               recent growth in California, it makes sense to allow  
               law enforcement to use this highly effective tool to  
               prevent and stop it. The bill would retain judicial  
               authority over wiretap requests and make a modest yet  
               meaningful expansion of this important statute.

          7.  Opposition

           The ACLU opposes this bill stating:

               The ACLU has consistently opposed expansion of the  
               state's wiretap law.  Our objections are based on the  
               fact that wiretapping violates basic privacy rights.  A  
               wiretap, because it picks up both sides of all  
               communications made by all persons using wire or  
               electronic communications under surveillance, by  
               definition constitutes a general search - committed not  
               only against the person under suspicion but against  
               countless other persons connected with the suspect only  
               remotely or not at all.  

               According to the 2012 U.S. Department of Justice  



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               Report, there were 719 reported applications by  
               California law enforcement officials for wiretaps in  
               California in 2012, resulting in interceptions of  
               nearly 55,000 communications, the vast majority of them  
               innocent conversations. Most of these intercepts were  
               used in narcotics investigations.  The reported cost to  
               taxpayers for these wiretaps in 2012 was over  
               $31,000,000.  Expanding the authority of state  
               officials to obtain wiretaps for human trafficking  
               crimes - which was recently expanded to include even  
               one instance of seeking to engage in commercial sex act  
               with a minor (Penal Code 236.1 (c)) - will only further  
               exacerbate these statistics and intrusions into privacy  



          8.  Suggested Amendments  

          In addition to their opposition the ACLU would like to see  
          amendments in the bill to guarantee that the probable cause used  
          by law enforcement to get a wiretap does not come from  
          information that was gained without a warrant.

               Additionally, we urge amendments to assure that state law  
               enforcement officials are not using facts to obtain wiretap  
               orders based on electronic data received from federal  
               authorities - such as the National Security Agency - that  
               were not obtained without a proper warrant.  We suggest the  
               following amendment to Penal Code 629.52.

               e) A probable cause finding under this section cannot be  
               based on facts provided by or obtained from any federal  
               agency, agent, or corporation that was gathered through  
               access to nonpublic electronic communications not based on  
               a warrant that particularly describes the person, place,  
               and thing to be searched or seized or on consent by one of  
               the parties to the communication.

               For purposes of this subsection, "electronic  
               communications" means any transfer of signs, signals,  
               writing, images, sounds, data, or intelligence of any  
               nature transmitted in whole or in part by a wire,  
               radio, electromagnetic, photo electronic or photo  
               optical system. For purposes of this provision, the  
               term "electronic communications" is not limited to  
               communication between two or more persons but includes  
               accessing static, automated, or computerized materials  
               such as web sites, files, or databases, or the  
               conducting of financial transactions.


          Both federal and California law require that each wiretap  
          application include "a full and complete statement as to whether  



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          or not other investigative procedures have been tried and failed  
          or why they reasonably appear to be unlikely to succeed if tried  
          or to be too dangerous."  (18 USC Section 2518 (1)(c); Penal  
          Code Section 629.50(d).)  Often referred to as the "necessity  
          requirement," it exists in order to limit the use of wiretaps,  
          which are highly intrusive.  (United States v. Bennett, 219 F.3d  
          1117, 1121 (9th Cir. 2000).)  The original intent of Congress in  
          enacting such a provision was to ensure that wiretapping was not  
          resorted to in situations where traditional investigative  
          techniques would suffice to expose the crime.
          The United States Court of Appeals for the Ninth Circuit  
          recently suppressed wiretap evidence against a defendant and  
          reversed his conviction for failure of the government to make a  
          showing of necessity for the electronic monitoring.  Purged of  
          material omissions and misstatements, the Court held that the  
          application failed to contain sufficiently specific facts to  
          satisfy the requirements of 18 USC Section 2518(1)(c).  (United  
          States v. Blackmon, 2001 U.S. App. LEXIS 26428, 2001 Cal. Daily  
          Op. Service 10328; 2001 Daily Journal DAR 12897.)

          9.   Department of Justice's 2006 Legislative Report  

          The 2012 Attorney General "Annual Report on Electronic  
          Interceptions" states that:

               During the 2012 reporting period, 707 electronic  
               interception orders were approved in 16 California  
               counties. These electronic interception orders resulted in  
               961 arrests.  Over 87 percent of the requested and approved  
               interception orders included narcotics as a precipitating  
               offense.  Notably, over 51 percent of the resulting arrests  
               included a narcotics charge and about 20 percent included a  
               gang charge.  A majority of these arrests are currently  
               pending prosecution.