BILL ANALYSIS Ó
SB 424
Page 1
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