BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 424


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          Date of Hearing:  June 30, 2015


          Chief Counsel:     Gregory Pagan








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          SB  
          424 (Pan) - As Amended April 21, 2015





          SUMMARY:  Allows a university or college police officer to  
          eavesdrop in any criminal investigation relating to sexual  
          assault or other sexual offense, and to wear body worn-cameras.   
          Specifically, this bill:  



          1)Authorizes any POST-certified chief of police, assistant chief  
            of police, or police officer of a university or college campus  
            acting within the scope of his or her authority, to overhear  
            or record any communication in any criminal investigation  








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            related to sexual assault or other sexual offense.

          2)Provides that that nothing in existing privacy statutes shall  
            prohibit any POST-certified chief of police, assistant chief  
            of police, or police officer of a university or college campus  
            from using or operating body-worn cameras.



          3)States that that the provisions of this bill shall not be used  
            to impinge upon the lawful exercise of constitutionally  
            protected rights of free speech, or the constitutionally  
            protected right of personal privacy.





          EXISTING LAW: 



          1)Establishes that a member of the University of California (UC)  
            Police Department whose primary duty is the enforcement of the  
            law within the specified jurisdictional areas is a peace  
            officer.  (Pen. Code, § 830.2 subd. (b).)

          2)Limits the authority of a member of the UC Police Department  
            to the UC campuses, and 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.   
            (Ed. Code, § 92600.)

          3)Establishes that a member of the California State University  
            (CSU) Police Department whose primary duty is the enforcement  
            of the law within the specified jurisdictional areas is a  
            peace officer.  (Pen. Code, § 830.2 subd (c).)

          4)Limits the authority of a member of the CSU Police Department  








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            to the CSU campuses, an area within one mile of the exterior  
            boundaries of each campus, and other CSU owned or operated  
            properties.  (Ed. Code, § 89560.)

          5)States that the Legislature hereby declares that advances in  
            science and technology have led to the development of new  
            devices and techniques for the purpose of eavesdropping upon  
            private communications and that the invasion of privacy  
            resulting from the continual and increasing use of such  
            devices and techniques has created a serious threat to the  
            free exercise of personal liberties and cannot be tolerated in  
            a free and civilized society.  The Legislature by this chapter  
            intends to protect the right of privacy of the people of this  
            state.  The Legislature recognizes that law enforcement  
            agencies have a legitimate need to employ modern listening  
            devices and techniques in the investigation of criminal  
            conduct and the apprehension of lawbreakers. Therefore, it is  
            not the intent of the Legislature to place greater restraints  
            on the use of listening devices and techniques by law  
            enforcement agencies than existed prior to the effective date  
            of this chapter.  (Pen. Code, § 630.)

          6)Generally prohibits wiretapping, eavesdropping, and using  
            electronic devices to record or amplify a confidential  
            communication.  Provides that any evidence so obtained is  
            inadmissible in any judicial, administrative, or legislative  
            proceeding.  (Pen. Code, §§ 631, 632, 632.5, 632.6, and  
            632.7.)

          7)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.   
            Provides that any evidence so obtained is admissible in any  
            judicial, administrative, or legislative proceeding.  (Pen.  
            Code, § 633.)








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          8)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.  Provides that any  
            evidence so obtained is admissible in a prosecution for such  
            crimes.  (Penal Code Section 633.5)

          FISCAL EFFECT:  Unknown





          COMMENTS:  



          1)Author's Statement:  According to the author, "Penal Code  
            Section 633 allows sworn officers to record the 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 were  
            included.  The exact cause of this omission is difficult to  








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            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 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 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  








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            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."

          2)Legislative History and Intent:  Current law declares that  
            "advances in science and technology have led to the  
            development of new devices and techniques for the purpose of  
            eavesdropping upon private communications and that the  
            invasion of privacy resulting from the continual and  
            increasing use of such devices and techniques has created a  
            serious threat to the free exercise of personal liberties and  
            cannot be tolerated in a free and civilized society."  (Penal  
            Code Section 630.)  Current law also recognizes that "law  
            enforcement agencies have a legitimate need to employ modern  
            listening devices and techniques in the investigation of  
            criminal conduct and the apprehension of lawbreakers."  (Id.)   
            The Legislature crafted Penal Code Section 633 to balance the  
            two concerns by only granting authority to eavesdrop and  
            record to limited law enforcement agencies.  Does expanding  
            exempt law enforcement agencies to include university peace  
            officers maintain the balance of these public policy concerns?

          As noted above, various sections of the Penal Code generally  
            prohibit eavesdropping and recording communications without  
            the consent of all parties to the communication.  Penal Code  
            Section 633 permits specified law enforcement agencies to  
            overhear and record any communication that they could lawfully  
            overhear or record prior to the enactment of these  
            prohibitions.  The type of communications that law enforcement  
            agencies could lawfully overhear and record without a court  
            order, as defined by decisional law, are communications with  
            no expectation of privacy or with the consent of one party.   
            (See Katz v. United States, 389 U.S. 347 (1967); United States  
            v. White, 401 U.S. 745 (1971).)  In practice, this permits the  
            specified law enforcement agencies to record communications by  
            an undercover officer, an informant wearing a "body-wire," or  
            recording telephone conversations with the officer or  








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            informant.

          3)Prior Legislation:

             a)   AB 992 (Spitzer), of the 2005-2006 Legislative Session,  
               added peace officers employed by the UC and CSU to the list  
               of specified law enforcement agencies exempt from  
               prohibitions against overhearing and recording  
               communications without an individual's consent.  AB 992  
               failed passage in the Senate Public Safety Committee.

             b)   AB 1884 (Spitzer), of the 2003-2004 Legislative Session,  
               added city attorneys prosecuting state law misdemeanor  
               cases to the list of law enforcement officers who are  
               authorized to record or overhear communications.  AB 1884  
               was vetoed by the Governor.



          REGISTERED SUPPORT / OPPOSITION:





          Support



          Association for Los Angeles Deputy Sheriffs 
          California Association of Code Enforcement Officers 


          California College and University Police Chiefs Association


          California Narcotics Officers Association 










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          California Police Chiefs Association


          Los Angeles Police Protective league
          Riverside Sheriffs Association
          


          Opposition



          None



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