BILL ANALYSIS                                                                                                                                                                                                    



          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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