BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 424 Hearing Date: April 28, 2015
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|Author: |Pan |
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|Version: |April 21, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Law Enforcement: Communications
HISTORY
Source: California College and University Police Chiefs
Association
Prior Legislation:AB 992 (Spitzer) - failed Senate Public
Safety, 2005
AB 1884 (Spitzer) - vetoed, 2004
AB 860 (Unruh) - Chapter 1509, Stats. 1967
Support: The Association for Los Angeles Deputy Sheriffs;
California Association of Code Enforcement Officers;
California Correctional Supervisors Organization;
California Narcotic Officers Association; Los Angeles
Police Protective League; Riverside Sheriffs
Association
Opposition:ACLU; California Attorneys for Criminal Justice
PURPOSE
The purpose of this bill is to allow university and college
peace officers to eavesdrop in any criminal investigation
related to sexual assault or other sexual offense and to wear
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body-worn cameras.
Existing law establishes that a member of the UC Police
Department whose primary duty is the enforcement of the law
within the specified jurisdictional areas is a peace officer.
(Penal Code § 830.2(b).)
Existing law limits the authority of a member of the UC Police
Department to the UC campuses, an area within one mile of the
exterior boundaries of each campus, and other properties owned
or operated by the Regents of the University of California.
(Education Code § 92600.)
Existing law establishes that a member of the CSU Police
Department whose primary duty is the enforcement of the law
within the specified jurisdictional areas is a peace officer.
(Penal Code § 830.2(c).)
Existing law limits the authority of a member of the CSU Police
Department to the CSU campuses, an area within one mile of the
exterior boundaries of each campus, and other CSU owned or
operated properties. (Education Code § 89560.)
Existing law declares legislative intent to protect the right of
privacy of the People of California and recognizes that law
enforcement agencies have a legitimate need to employ modern
listening devices and techniques to investigate criminal
conduct. (Penal Code § 630.)
Existing law generally prohibits wiretapping, eavesdropping, and
using electronic devices to record or amplify a confidential
communication. It further provides that any evidence so
obtained is inadmissible in any judicial, administrative, or
legislative proceeding. (Penal Code §§ 631, 632, 632.5, 632.6,
and 632.7.)
Existing law permits one party to a confidential communication
to record the communication for the purpose of obtaining
evidence reasonably believed to relate to the commission by
another party to the communication of the crime of extortion,
kidnapping, bribery, any felony involving violence against the
person, or a violation of the law against obscene, threatening,
or annoying phone calls. Existing law further provides that any
evidence so obtained is admissible in a prosecution for such
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crimes. (Penal Code § 633.5.)
Existing law provides that notwithstanding prohibitions to
eavesdropping, etcetera, upon the request of a victim of
domestic violence who is seeking a domestic violence restraining
order, a judge issuing the order may include a provision in the
order that permits the victim to record any prohibited
communication made to him or her by the perpetrator. (Penal
Code § 633.6.)
Existing law exempts the Attorney General, any district
attorney, specified peace officers such as city police and
county sheriffs, and a person acting under the direction of an
exempt agency from the prohibitions against wiretapping and
other related activities to the extent that they may overhear or
record any communication that they were lawfully authorized to
overhear or record prior to the enactment of the prohibitions.
Existing law provides that any evidence so obtained is
admissible in any judicial, administrative, or legislative
proceeding. (Penal Code § 633.)
This bill provides that nothing prohibits POST-certified peace
officers of a university or college campus from eavesdropping in
any criminal investigation related to sexual assault or other
sexual offense.
This bill provides that nothing prohibits POST-certified peace
officers of a university or college campus from using or
operating body-worn cameras.
This bill provides that this section shall not be used to
impinge upon the lawful exercise of constitutionally protected
rights of freedom of speech or assembly, or the constitutionally
protected right of person privacy.
COMMENTS
1.Need for This Bill
According to the author:
Penal Code 663 allows sworn officer to record the
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statements of suspects without notifying them, which
would otherwise be prohibited under state wiretapping
laws. This is most often utilized during suspect
interviews/interrogations, in-car recordings of
suspects in custody, and in a pretext phone call
situation. A pretext phone call is the recording of a
conversation between a victim and a known suspect
arranged by law enforcement to gain admissions or
other incriminating statements. This technique
provides some of the best evidence in cases of date
rape and other crimes involving no independent
witnesses.
Unfortunately, POST certified officers who protect
campuses such as the California State University and
University of California systems were not among those
listed within PC 633 while virtually all other police
entities in the state are included. The exact cause
of this omission is difficult to ascertain, however,
it is clear today that college and university law
enforcement entities need the ability to obtain these
recordings as dictated by their investigations. Not
only does this omission undermine effective law
enforcement, it has the effect of prohibiting use of
Body Worn Cameras by college and university officers
in some circumstances.
The California College and University Police Chiefs
Association's members have a significant
responsibility for protecting a large at-risk
population. College and University chiefs of police
in California are responsible for providing front-line
public safety protection for three million students
and employees on their campuses.
College and university police departments meet the
same POST training certification requirements of
every municipal police and county sheriff agency and,
just like those agencies, engage in ongoing training
to continually enhance their knowledge and
professionalism.
Although not generally realized, officers in a college
and university environment are charged with the
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handling of some of the most serious events in our
society. According to a study by the Federal Bureau of
Investigation, there were 39 incidents that occurred
in an educational environment in the United States
between 2000 and 2013. These incidents at school and
college campuses accounted for some of the highest
casualty counts in the nation. College and university
police officers are also responsible for investigating
sexual assaults against students, which is a
burgeoning problem given the availability of alcohol,
the pernicious presence of controlled substances used
to facilitate a sexual assault and a newfound absence
of parental supervision.
In addition to crimes like active shooter and sexual
assault, college and university police agencies deal
with the same array of criminal activity that takes
place in a non-campus environment. Campuses are not
cocooned bubble and criminal activity truly knows no
jurisdictional boundaries. Over the most recent two
year period, there were nearly six thousand serious
crimes committed on our campuses. These crimes, which
are required to be reported pursuant to the Clery Act,
include murder, manslaughter, sexual assaults,
robbery, aggravated assaults, burglary, vehicle thefts
and arson.
College and University police agencies meet the same
POST requirements of city police and county sheriffs;
they face the same law enforcement challenges. They
should have the same tools with which to address those
challenges. This proposed legislation will accomplish
that objective.
2. Exception to Prohibition on Unlawful Eavesdropping
Penal Code section 631 et seq. sets forth a comprehensive
statutory scheme protecting the right of privacy by prohibiting
unlawful wiretapping and other forms of illegal electronic
eavesdropping. Unless a specific exception applies, persons may
not intercept, record, or listen to confidential communications
whether on a conventional, cordless, or cellular telephone.
A significant exception is described in Penal Code section 633.
The Attorney General, any district attorney, specified peace
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officers, and any person acting pursuant to the direction of a
law enforcement officer may lawfully overhear or record certain
communications.
3.Allowing University and College Peace Officers to Eavesdrop
and Wear Body Cameras
This bill would allow university and college peace officers to
eavesdrop in any criminal investigation related to sexual
assault. The bill would also allow these police forces to use
body cameras. Eavesdropping would allow them to authorize
another to make a pretext call, for example, in a sexual assault
case permitting the victim to tape the accused perpetrator in a
conversation where she gets him to admit there was no consent.
As noted in the author's statement, the sponsor states that the
POST trained police forces of universities and colleges in
California investigate a wide range of crimes on their campuses
including sex offenses and they believe the ability to eavesdrop
and to wear body cameras will facilitate their investigations.
In support of their position that it is appropriate to include
University and College Peace Officers in the exception to
eavesdropping, the sponsor makes the following points:
College and university police departments meet the
same POST training and certification requirements of
every municipal police and county sheriff agency and,
just like those agencies, engage in ongoing training
to continually enhance their knowledge and
professionalism.
Although not generally realized, officers in a college
and university environment are charged with the
handling of some of the most serious events in our
society. According to a study by the Federal Bureau
of Investigation, there were 39 incidents that
occurred in an educational environment in the United
States between 2000 and 2013. These incidents at
school and college campuses accounted for some of the
highest casualty counts in the nation.
College and university police officers are also
responsible for investigating sexual assaults against
students, which is a burgeoning problem given the
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availability of alcohol, the pernicious presence of
controlled substances used to facilitate a sexual
assault and a newfound absence of parental
supervision.
In addition to crimes like active shooter and sexual
assault, college and university police agencies deal
with the same array of criminal activity that takes
place in a non-campus environment. Campuses are not
cocooned bubbles and criminal activity truly knows no
jurisdictional boundaries. Over the most recent two
year period, there were nearly six thousand serious
crimes committed on our campuses. These crimes, which
are required to be reported pursuant to the Clery Act,
include murder, manslaughter, sexual assaults,
robbery, aggravated assaults, burglary, vehicle thefts
and arson.
4. Opposition
The ACLU opposes this bill stating:
We do not believe the authority to engage in
eavesdropping should be extended. Restrictions on the
use of eavesdropping apparatus were originally enacted
to ensure that such activities would be undertaken
only in absolutely justifiable situations and under
strict control. We have consistently opposed all
previous efforts to expand this authority.
University and college campuses are environments in
which the free exchange of views and ideas play a
critical role. Freedom of speech and expression must
be carefully and thoughtfully protected. These
freedoms foster the advancement of knowledge, and help
provide students and faculty with a sense of safety
and comfort. Giving campus police officers broad
powers of surveillance could end up having a chilling
effect on these freedoms, and could lead to
adversarial relationships between campus police,
faculty and the student body.
Campus law enforcement often lacks the training,
supervision, and accountability to help ensure the
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powers granted by SB 424 would be used in a
constitutionally acceptable manner. If an
investigation is of sufficient importance to merit
electronic eavesdropping, campus police should seek
cooperation and assistance of those agencies that
presently have the authority to do so. Creating
further encouragement and incentive to engage in
electronic surveillance is inconsistent with the
legitimate expectation of privacy surrounding our
personal and confidential communications.
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