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 SB 424 Page 2 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 SB 424 Page 3 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.) SB 424 Page 4 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 SB 424 Page 5 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 SB 424 Page 6 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 SB 424 Page 7 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 SB 424 Page 8 California Police Chiefs Association Los Angeles Police Protective league Riverside Sheriffs Association Opposition None Analysis Prepared by:Gregory Pagan / PUB. S. / (916) 319-3744