BILL ANALYSIS Ó
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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