BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 448        Hearing Date:    April 21, 2015    
          
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          |Author:    |Galgiani                                             |
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          |Version:   |April 15, 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:SB 1454 (Gaines) Ch. 629, Stats 2014
                         AB 2623 (Allen) Vetoed  2012
                         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:  Fraternal Order of Police; California Lodge; Long  
                    Beach Police Officers Association; Los Angeles County  
                    Professional Peace Officers Association; Santa Ana  
                    Police Officers Association; Sacramento County Deputy  
                    Sheriffs' Association

          Opposition:American Civil Liberties Union; California Attorneys  
          for Criminal Justice

                                                


          PURPOSE







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          The purpose of this bill is to add any peace officer of the  
          Department of Fish and Wildlife, the Department of Parks and  
          Recreation, or any peace officer of the Department of State  
          Hospitals to the provision that permits specific peace officers  
          to wiretap.
          
          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  








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          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.)

          This bill adds any peace officer of the Department of Fish and  
          Wildlife, the Department of Parks and Recreation, or any peace  
          officer of the Department of State Hospitals 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  








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          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  
          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?  

            According to the author, officers from the Department of Fish  
            and Wildlife have to "face the same day to day interactions  
            with the public as the majority of sworn peace officers" and:   


                     They are uniformed sworn peace officers.
                     These officers operate on Patrol in marked cars.
                     These officers police crimes, perform traffic stops.  
                  Make arrests.  Take    statements and make reports.  
                     These officers initiate 120,000-230,000 law  
                 enforcement contacts a year.
                     These officers issue btw 7000 and 18,000 citations a  
                 year.
                     These officers execute over 100 search warrants a  
                 year.
                     These officers enter rough terrain interfacing with  








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                 armed poachers.

            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.   
            Before installing dash board cameras the Department of Fish  
            and Game must develop a policy on their use and retention. Do  
            these officers need a broader exception than the one that was  
            created last year?  Do they have a need to surreptitiously  
            listen to phone calls?  Do they have a need to surreptitiously  
            wear a body wire?  

             a.   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?  

            According to the author officers from the Department of Fish  
            and Wildlife have the "face the same day to day interactions  
            with the public as the majority of sworn peace officers" and:   


                     They are uniformed sworn peace officers.

                     These officers operate outside on Patrol in marked  
                 cars. 

                     These officers police crimes, perform traffic stops.  
                  Make arrests.  Take statements and make reports.

                     These officers report to the scene of accidents.

                     These officers intervene in fights.

                     These officers frequently encounter intoxicated  
                 members of the public. 

            Do these officers need to surreptitiously listen to phone  
            calls or surreptitiously tape encounters?  Would less than a  
            full exception, like the dash board camera authority given to  
            the Fish and Game officers last year take care of their needs?  









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            c . 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 State Hospitals or the State Department of Developmental  
            Services to the list of peace officers that can eavesdrop.   
            These officers have authority limited  these as follows:  
            "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."  These  
            officers have not been authorized to carry guns.

            According to the author officers from the Department of Fish  
            and Wildlife have the " face the   same day to day  
            interactions with the public as the majority of sworn peace  
            officers" and:  

                     They are uniformed sworn peace officers

                     These officers operate outside on Patrol in marked  
                 cars. 

                     These officers police crimes, perform traffic stops.  
                  Make arrests.  Take statements and make reports.  

                     Some individual facilities see in excess of 40,000  
                 people a day.

                     Many of these facilities are open campuses and in  
                 residential neighborhoods.

                     These facilities have dealt with murders and  
                 shootings.

                     Some of these facilities are 1500-2000 acre  
                 facilities.

                     File 1000's of police reports a year









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          Do these officers need to surreptitiously listen to phone calls  
          or surreptitiously tape encounters?    Would less than a full  
          exception, like the dash board camera authority given to the  
          Fish and  Game officers last year take care of their needs? 

          4. 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.


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