BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 955
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          Date of Hearing:   June 17, 2014
          Chief Counsel:      Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                 SB 955 (Mitchell) - As Introduced:  February 6, 2014


           SUMMARY  :   Authorizes the interception of wire or electronic  
          communications initially intercepted within the territorial  
          jurisdiction of the court where the judge is siting, if the  
          judge determines, on the basis of facts submitted, that there is  
          probable cause to believe that an individual is committing, has  
          committed, or is about to commit the offense of human  
          trafficking, and extends the sunset date on the state's  
          wiretapping law until January 1, 2020   

           EXISTING LAW  :

          1)Authorizes the Attorney General (AG), chief deputy AG, chief  
            assistant AG, 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.)

          5)Provides that the court may grant oral approval for an  








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            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 A G 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 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  
            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  








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

          15)Provides that human trafficking is one of the offenses which  
            is "criminal profiteering activity" subjecting proceeds from  
            the activity to forfeiture proceedings.  (Pen. Code,  186.2,  
            subd (a)(28).)

          16)Provides that any person who deprives or violates the  
            personal liberty of another with the intent to obtain forced  
            labor or services, is guilty of human trafficking and shall be  
            punished by imprisonment in the state prison for 5, 8, or 12  
            years and a fine of not more than five hundred thousand  
            dollars ($500,000).  (Pen. Code,  236.1, subd, (a).)

          17)States that any person who deprives or violates the personal  
            liberty of another with the intent to effect or maintain a  
            violation of specified sex crimes is guilty of human  
            trafficking and shall be punished by imprisonment in the state  
            prison for 8, 14, or 20 years and a fine of not more than five  
            hundred thousand dollars ($500,000).  (Pen. Code,  236.1,  
            subd, (b).)

          18)Provides that any person who causes, induces, or persuades,  
            or attempts to cause, induce, or persuade, a person who is a  
            minor at the time of commission of the offense to engage in a  
            commercial sex act, with the intent to effect or maintain a  
            violation of specified sex crimes is guilty of human  
            trafficking.  A violation of this subdivision is punishable by  
            imprisonment in the state prison as follows: 

             a)   Five, 8, or 12 years and a fine of not more than five  
               hundred thousand dollars ($500,000); or,

             b)   Fifteen years to life and a fine of not more than five  
               hundred thousand dollars ($500,000) when the offense  
               involves force, fear, fraud, deceit, coercion, violence,  
               duress, menace, or threat of unlawful injury to the victim  








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               or to another person.  (Pen. Code,  236.1, subd, (c).)

          19)Provides that in determining whether a minor was caused,  
            induced, or persuaded to engage in a commercial sex act, the  
            totality of the circumstances, including the age of the  
            victim, his or her relationship to the trafficker or agents of  
            the trafficker, and any handicap or disability of the victim,  
            shall be considered.  (Pen. Code  236.1, subd, (d).)

          20)Specifies that "commercial sex act" means sexual conduct on  
            account of which anything of value is given or received by any  
            person.  (Pen. Code  236.1, subd, (h)(2).)


           
          FISCAL EFFECT  :  Unknown

           
          COMMENTS  : 


           1)Author's Statement  :  According to the author, "The voters of  
            California and several local governments have challenged  
            California to better prosecute perpetrators of human  
            trafficking and provide assistance to victims of human  
            trafficking.  SB 955 will mirror federal law by allowing a  
            court to issue a wiretap order on the basis of human  
            trafficking while also extending the sunset date on  
            California's wiretap statute until January 1, 2020.

           2)Argument in Support  :  The  Los Angeles County Board of  
            Supervisors  states, "Existing law authorizes a judge to grant  
            an order for the interception of wire, oral or specified  
            electronic communications upon approval of a written  
            application submitted by the District Attorney that meets  
            specific statutory criteria.  California's existing wiretap  
            law enumerates the offenses for which a wiretap may be  
            authorized.  This list includes narcotic offenses, murder,  
            aggravated kidnapping, gang crimes, and attempts or  
            conspiracies to commit these enumerated offenses.  Notably  
            absent from California's wiretap law is the crime of human  
            trafficking.

            SB 955 would add human trafficking to the list of crimes that  
            may use wiretapping as an investigative tool.  California is  








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            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 county 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  
            victims. 

           3)Argument in Opposition  :  The  American Civil Liberties Union   
            argues, "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 conversations of all  
            calls made by all persons using the telephone under  
            surveillance, by definition constitutes a general search -  
            committed not only against the person under suspicion but  
            against countless other callers connected with the suspect  
            remotely, or not at all."

           4)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.

             d)    AB 156 (Holden) of the 2013 Legislative Session added  
               human trafficking to the list of crimes for which a judge  
               may issue an order allowing law enforcement to intercept  
               wire or electronic communications.

           5)Pending Legislation:
           
             a)   AB 1526 (Holden) extends the sunset date on the state's  
               wiretapping law until January 1, 2020.  AB 1526 is pending  
               hearing in the Senate Public Safety Committee.








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             b)   SB 35 (Pavley) extends the sunset date on the state's  
               wiretapping law until January 1, 2020.  SB 35 is pending  
               hearing in the Assembly Appropriations Committee.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Attorney General Kamala D. Harris
          California State Sheriffs' Association
          County of Los Angeles
          California Alliance of Child and Family Services
          California Fraternal Order of Police
          California Statewide Law Enforcement Coalition
          California Communities United Institute
          Coalition to Abolish Slavery & Trafficking
          City and County of San Francisco
          Los Angeles County 
          City of Long Beach
          Long Beach Police Officers Association
          Los Angeles County Professional Peace Officers Association
          Los Angeles Police Protective League
          Peace Officers Research Association of California
          Association for Los Angeles Deputy Sheriffs 
          Los Angeles Probation Officers Union
          Riverside Sheriffs' Association
          Sacramento County Deputy Sheriffs Association
          Santa Ana Police Officers Association
            Urban Counties Caucus  

           25 Private Citizens  

            Opposition 
           
          American Civil Liberties Union


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