BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 298        Hearing Date:    April 14, 2015    
          
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          |Author:    |Block                                                |
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          |Version:   |February 23, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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               Subject:  Money Laundering:  Interception of Electronic  
 
                                   Communications



          HISTORY
          Source:   California Attorney General

          Prior Legislation:SB 955 (Mitchell) Ch.712, Stats. 2014
                         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.  
          1995
                                   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:  Alameda County District Attorney; California Police  
                    Chiefs Association; California State Sheriffs'  
                    Association; California Statewide Law Enforcement  
                    Association; Peace Officers Research Association of  
                    California; San Diego County District Attorney









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          Opposition:American Civil Liberties Union; California Public  
          Defenders Association
                                                
          PURPOSE

          The purpose of this bill is to add money laundering for criminal  
          profiteering to the crimes for which a wiretap 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 §  
          629.56.)

          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,  
          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.)









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          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  
          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.)











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          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, human trafficking.  (Penal Code § 629.52.)

          This bill adds to the list of crimes for which a wiretap may be  
          sought money laundering for the benefit of or in association  
          with an ongoing organization that has engaged in criminal  
          profiteering and if the values of the transactions exceed  
          $50,000.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  









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          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 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. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

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









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               reasonably appropriate remedy.


          COMMENTS

          1. Need for This Bill

          According to the author:

               Transnational criminal organizations situated outside  
               the country, such as Mexican drug cartels, are able to  
               thrive only when they can access the proceeds of their  
               illicit activities.  By helping them hide and  
               transport illicit proceeds across state lines  
               undetected, money laundering permits these  
               organizations to reap the lucrative rewards of  
               trafficking humans, drugs, and weapons.

               As an international hub at the center of global  
               commerce, California is an epicenter of money  
               laundering activities.  According to the El Paso  
               Intelligence Center, a federal clearinghouse of data  
               on currency and narcotics seizures, California is one  
               of the top two states through which drug money flows  
               and in which such money is seized.<1>  In 2012, as  
               much as $40 billion-or 2 percent of California's gross  
               domestic product-may have been laundered in the  
               state.<2>  These funds not only fuel the ongoing  
               operations of criminal organizations around the world,  
               but also supply those organizations with the means to  
               expand and extend their global influence.

               To shut off this unprecedented flow of illicit funds  
               into and out of California, state and local law  
               enforcement urgently need the kind of tools that law  
               ----------------------
               ----------------------
          <1> Money Laundering Threat Assessment Working Group, U.S. Money  
          Laundering Threat Assessment (Dec. 2005), p. 38 (Tables 8 & 9),  
          accessible at  
           http://www.treasury.gov/resource-center/terrorist-illicit-finance 
          /Documents/mlta.pdf  .
          <2> Office of the Attorney General,  Gangs  Beyond Borders:  
          California and the Fight Against Transnational Organized Crime  
          (Mar. 2014), p. 24.








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               enforcement at the federal level<3> and in other  
               states (such as Hawaii,<4> New York,<5> and Oregon<6>)  
               have.  One such tool that law enforcement in  
               California currently lack is authority to use wiretaps  
               to investigate large-scale money laundering  
               activities.

               While the existing wiretap statute, Penal Code section  
               629.52, authorizes wiretaps to investigate trafficking  
               activities and street gang felonies, it fails to  
               address the sophisticated money laundering operations  
               that often go along with these crimes.  SB 298 would  
               offer state and local law enforcement a strictly  
               regulated avenue for using wiretaps to investigate  
               large-scale money laundering activities, and thereby  
               directly target the financial pipeline that sustains  
               transnational organized crime.  In particular, SB 298  
               would add money laundering by organized crime groups  
               to the list of predicate offenses for which wiretaps  
               may be authorized.  This new authority would be  
               limited only to cases where the value of the money  
               laundered exceeds $50,000.  

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

              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  
              -------------------------
          <3> 18 U.S.C. § 2516(c).
          <4> Haw. Rev. Stat. § 803-44.
          <5> N.Y. CPL § 700.05(8)(o).
          <6> Or. Rev. Stat. §§ 133.74, 166.720.








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              search.
               
              b.        Title III Allows Wiretapping Under Strict  
              Conditions  
                              
              In 1968, Congress authorized wiretapping by enacting Title  
              III of the Omnibus Crime Control and Safe Streets Act.  (See  
              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  
                 violations.
                 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  









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          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  
          interceptions.  The law also limits the 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  
               gangs;
                 Possession or use of a weapon of mass destruction;
                 Human trafficking; or
                 An attempt or conspiracy to commit any of the above.

          4. Money Laundering

          This bill would add money laundering in support of criminal  
          profiteering activity in an amount greater than $50,000 to the  
          crimes for which a wiretap may be sought.  The sponsor believes  
          this bill is necessary to assist in the prosecution of  
          transnational criminal organizations.

          5.  Are These Activities Already Covered?

          It is unclear that the expansion of the wiretap provisions to  
          money laundering is necessary since many of the crimes  
          associated with organizations that also launder money are  
          covered and many of the offenses are international and thus  
          would be prosecuted by the Federal government. The Office of the  
          Attorney General's report Gangs beyond Borders: California and  
          the Fight Against Transnational Organized Crime (Mar 2014)  
          investigated the harm done by transnational organizations in  
          California.   In the report the money laundering seems to be  
          mostly associated with transnational gangs that also import  
          drugs and/or participate in human trafficking, both crimes of  
          which a search warrant can already be sought.  Since these are  
          international crimes, if federal law enforcement officials are  
          involved they have the ability to get a wiretap if an  
          organization is solely involved in money laundering with no  
          other related offenses.   










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          6. Opposition

          The ACLU opposes this bill stating:

               The ACLU of California has consistently opposed  
               expansion of the state's wiretap law. Our objections  
               are based on our ongoing concern that wiretapping  
               violates basic privacy rights. Because it picks up  
               both sides of all conversations of all calls made by  
               or to all persons using the telephone under  
               surveillance, a wiretap by definition constitutes a  
               general search-committed not only against the person  
               under suspicion but against countless other callers  
               connected with the suspect, often only remotely or not  
               at all.

               California's current wiretap statute already grants  
               broad parents to law enforcement to intercept wire or  
               electronic communications of individuals they suspect  
               of committing money laundering as part of a pattern of  
               a criminal profiteering, thus exposing countless  
               individuals to privacy invasions described above.   
               [footnotes admitted] Given law enforcement's current  
               wiretap capabilities, further expansion of the statute  
               is unnecessary, and will only needlessly expose  
               additional innocent parties to the inevitable privacy  
               violations that come with this practice.



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