BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 448 Hearing Date: April 14, 2015
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|Author: |Galgiani |
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|Version: |February 25, 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 Statewide Law Enforcement Association
Prior Legislation:AB 992 (Spitzer) failed Senate Public Safety
2005
AB 1884 (Spitzer) - 2004 vetoed
AB 1647 (Campbell) failed Assembly Public Safety
2001
AB 860 (Unruh) - Ch. 1509, Stats. 1967
Support: Unknown
Opposition:American Civil Liberties Union
PURPOSE
The purpose of this bill is to add any peace officer of the
Department of Fish and Wildlife, the Department of Parks and
Recreation, the Department of Forestry and Fire Protection, the
Department of Alcoholic and Beverage Control or the California
Exposition and State Fair and any peace officer identified in
Penal Code Section 830.3, 830.37 or 830.38 to the provision that
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allows specific peace officers to eavesdrop.
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 of 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. Current law provides that any evidence
so obtained is admissible in a prosecution for such crimes.
(Penal Code § 633.5.)
Existing law provides that notwithstanding prohibitions
regarding 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.
Current law provides that any evidence so obtained is admissible
in any judicial, administrative, or legislative proceeding.
(Penal Code § 633.)
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This bill adds any peace officer of the Department of Fish and
Wildlife, the Department of Parks and Recreation, the Department
of Forestry and Fire Protection, the Department of Alcoholic and
Beverage Control or the California Exposition and State Fair and
any peace officer identified in Penal Code Section 830.3, 830.37
or 830.38 to the provision that permits specific peace officers
to wiretap.
COMMENTS
1. Need for This Bill
According to the author:
The vast majority of peace officers employed in
California are already permitted to overhear and/or
record conversations with the public despite a general
prohibition against recording conversations without
permission. The peace officers who would gain this
authority from this measure face many of the same
situations seen by those currently with this authority.
The public should have no expectation of privacy when
interacting with a peace officer, especially since most
peace officers already are permitted to record such
conversations.
Recent events have demonstrated the value of such
recordings in resolving issues that would otherwise
degenerate to a struggle between two parties with
different recalls of the interaction. In addition,
modern technology has made such recordings more common
place when recorded by third parties. This measure
promotes additional transparency for interactions
between the public and California's peace officers.
2. 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
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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
officers, and any person acting pursuant to the direction of a
law enforcement officer may lawfully overhear or record certain
communications.
3. Addition of More Peace Officers
The eavesdropping section has been limited to those peace
officers who had the authority to eavesdrop when the general
prohibition was adopted in 1968. In spite of several attempts
over the years to add officers to this section, it has not been
expanded. This bill would add a number of peace officers. The
policy question is whether each of these types of peace officers
should have broad authority to eavesdrop or would there be a
more limited approach to meeting the needs of these officers if
such authority is necessary.
a. Peace Officers with the Department of Fish and Game
Should a peace officer with the Department of Fish and
Wildlife have the authority to eavesdrop? What purpose would
eavesdropping serve for these peace officers? Would a member
of the public expect that a peace officer with the Department
of Fish and Wildlife to be potentially taping their statements
without their knowledge?
Under Fish and Game Code Section 856.5 which was added last
year by SB 1454 (Gaines), peace officers of the Department of
Fish and Wildlife were given the authority to use dashboard
cameras as an exception to the prohibition on eavesdropping;
do these officers need a broader exception than the one that
was created last year?
b. Peace Officers with the Department of Parks and
Recreation
Should a peace officer with the Department of Parks and
Recreation have the authority to eavesdrop? What purpose
would eavesdropping serve for these peace officers? Would a
member of the public expect that a peace officer with the
Department of Parks and Recreation to be potentially taping
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their statements without their knowledge?
c. Peace Officers with the Department of Forestry and Fire
Protection
Should a peace officer with the Department of Forestry and
Fire Protection have the authority to eavesdrop? What purpose
would eavesdropping serve for these peace officers? Would a
member of the public expect that a peace officer with the
Department of Forestry and Fire Protection to be potentially
taping their statements without their knowledge?
d. Peace Officers with the Department of Alcoholic and
Beverage Control
Should a peace officer with the Department of Alcoholic and
Beverage Control have the authority to eavesdrop? What
purpose would eavesdropping serve for these peace officers?
Would a member of the public expect that a peace officer with
the Department of Alcoholic and Beverage Control to be
potentially taping their statements without their knowledge?
e. Peace Officers with the California Exposition and State
Fair
Should a peace officer with the California Exposition and
State Fair have the authority to eavesdrop? What purpose
would eavesdropping serve for these peace officers? Would a
member of the public expect that a peace officer with the
California Exposition and State Fair to be potentially taping
their statements without their knowledge?
4. Addition of Limited Authority Peace Officers Under Penal
Code § 830.3
This bill would add any peace officer with limited peace officer
status for the purpose of enforcing the regulatory laws
pertaining to various departments of state government to conduct
the eavesdropping provisions. (Peace officers under Penal Code
Section 830.3.) Under existing law these officers can partner
with a peace officer who has the authority to eavesdrop if that
investigative tool is necessary.
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According to Penal Code Section 830.3 these are "peace officers
whose authority extends to any place in the state for the
purpose of performing their primary duty or when making an
arrest as to any public offense to which there is immediate
danger to person or property or of the escape of the perpetrator
of the offense. These peace officers may carry firearms only if
authorized and under those terms and conditions as specified by
their employing agencies." Penal Code 830.3 includes the
following peace officers.
Is it appropriate and necessary for each of these to have the
authority to eavesdrop? What types of cases would eavesdropping
be used for by each of these agencies? Are these the types of
peace officers the general public would expect to be secretly
taping them?
Persons employed by the Division of Investigation of the
Department of Consumer Affairs and investigators of the
Medical Board of California and the Board of Dental
Examiners;
Voluntary fire wardens designated by the Director of
Forestry and Fire Protection;
Employees of the Department of Motor Vehicles provided
that the primary duty of these peace officers shall be the
enforcement of the law;
Investigators of the California Horse Racing Board
designated by the Board;
The State Fire Marshal and assistant or deputy state
fire marshals;
Inspectors of the food and drug section designated by
the chief of the section;
All investigators of the Division of Labor Standards
Enforcement designated by the Labor Commissioner;
All investigators of the Departments of Health Care
Services, Public Health, Social Services, the Department of
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Toxic Substances Control; the Office of Statewide Health
Planning and Development; and the Public Employees'
Retirement System;
The Chief of the Bureau of Fraudulent Claims of the
Department of Insurance and those investigators designated
by the chief;
Employees of the Department of Housing and Community
Development designated under Health and Safety Code Section
18023;
Investigators of the Office of the Controller;
Investigators of the Department of Business Oversight
designated by the Commissioner of Business Oversight;
Persons employed by the Contractors' State License Board
designated by the Director of Consumer Affairs;
The chief and coordinators of the Law Enforcement
Division of the Office of Emergency Services;
Investigators of the office of the Secretary of State
designated by the Secretary of State;
The Deputy Director for Security designated by
Government Code Section 8880.38 and all lottery security
personnel assigned to the California State Lottery and
designated by the director;
Investigators employed by the Investigation Division of
the Employment Development Department designated by the
director of the department;
The chief and assistant chief of museum security and
safety of the California Science Center; and,
Employees of the Franchise Tax Board designated by the
Board.
5. Fire Department Arson Investigators and Other Fire
Department Personnel
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This bill would expand the eavesdropping provisions to limited
authority peace officers under Penal Code Section 830.37. As
with those listed in Comment 4, these are peace officers whose
authority extends "to any place in the state for the purpose of
performing their primary duty or when making an arrest as to any
public offense to which there is immediate danger to person or
property or of the escape of the perpetrator of the offense.
These peace officers may carry firearms only if authorized and
under those terms and conditions as specified by their employing
agencies" Penal Code Section 830.7 includes:
Members of an arson-investigating unit of a fire
department or fire protection agency if the primary duty is
detection and apprehension of persons who have violated any
fire law or committed insurance fraud.
Members other than members of an arson-investigating
unit regularly paid and employed in that capacity of a fire
department or fire protection agency if the primary duty,
when acting in that capacity, is the enforcement of laws
relating to fire prevention or fire suppression.
Voluntary fire wardens as designated by the Director of
Forestry and Fire Protection provided that the primary duty
shall be enforcement of the law as that duty is set forth
in the Public Resources Code.
Firefighter/security guards by the Military Department,
if the primary duty is the enforcement of the law in or
about properties owned, operated or administered by the
employing agency or when performing necessary duties with
respect to patrons, employees and properties of the
employing agency.
Should each of these limited authority peace officers have the
authority to eavesdrop? Is such authority necessary and
appropriate in the cases that these officers investigate? Are
these the types of peace officers the general public would
expect to be secretly taping them?
6. Officers of the State Hospital
This bill would also add the limited authority peace officers of
a state hospital under the jurisdiction of the Department of
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State Hospitals or the State Department of Developmental
Services to the list of peace officers that can eavesdrop.
These officers have authority limited in the same manner as
those in Comments 4 and 5, to any place for the purpose of
performing their primary duty, arrest powers when there is
immediate danger and firearms only with authorization of their
employing agencies.
Should each of these limited authority peace officers have the
authority to eavesdrop? Is such authority necessary and
appropriate in the cases that these officers investigate? Are
these the types of peace officers the general public would
expect to be secretly taping them?
7. 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.
The officers included in SB 448-officers not typically
in the business of high-level electronic
surveillance--- lack the specific training,
supervision and accountability to help ensure that the
broad powers granted by SB 448 would be used in a
constitutionally acceptable manner. If an
investigation is of sufficient importance as to merit
electronic eavesdropping, these officers should seek
the 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.
-- END -
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