BILL ANALYSIS
AB 2210
Page 1
Date of Hearing: April 13, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2210 (Fuentes) - As Amended: April 7, 2010
SUMMARY : Authorizes a designated peace officer to use, or
authorize the warrantless use of, an electronic amplifying or
recording device to eavesdrop on or record, or both, any oral
communication within a particular location in response to an
emergency situation involving the taking of a hostage or
hostages or the barricading of a location. Specifically, this
bill :
1)States legislative intent to provide law enforcement with the
ability to use electronic amplifying or recording devices to
eavesdrop and record the otherwise confidential oral
communications of individuals within a location when
responding to an emergency situation that involves the taking
of a hostage or the barricading of a location. States
legislative intent that eavesdropping on oral communications
pursuant to this section comply with existing federal laws.
2)Allows a designated peace officer to use, or authorize the use
of, an electronic amplifying or recording device to eavesdrop
on or record, or both, any oral communication within a
particular location in response to an emergency situation
involving the taking of a hostage or hostages or the
barricading of a location if the designated peace officer
determines all of the following:
a) The officer reasonably determines that an emergency
situation exists involving the immediate danger of death or
serious physical injury to any person within the meaning of
existing federal law.
b) That the emergency situation requires that the
eavesdropping on oral communications occur immediately.
c) There are grounds upon which an order could be obtained
under this chapter to authorize such eavesdropping for
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evidence of the commission of the offense of murder,
kidnapping, gambling, robbery, bribery, extortion, or
dealing in narcotic drugs, marihuana or other dangerous
drugs, or other crime dangerous to life, limb, or property,
and punishable by imprisonment for more than one year,
designated in any applicable State statute authorizing such
interception, or any conspiracy to commit any of the
foregoing offenses.
3)Limits the emergency use of an electronic amplifying or
recording device to a peace officer designated by either a
district attorney in the county where the emergency exists, or
by the Attorney General (AG) to make the necessary,
aforementioned determinations.
4)Provides that if the determination is made by a designated
peace officer that an emergency situation exists, a peace
officer shall not be required to knock and announce his or her
presence before entering, installing, and using any electronic
amplifying or recording devices.
5)States that if the determination is made by a designated peace
officer that an emergency situation exists and communications
are overheard, an application for an order approving the
eavesdropping shall be made within 48 hours of the beginning
of the eavesdropping and shall comply with the requirements of
obtaining an order authorizing interception.
For purposes of an application, a court may authorize the use of
electronic amplifying or recording devices to eavesdrop and
record otherwise confidential oral communications in barricade
or hostage situations where there is probable cause to believe
that an individual is committing, has committed, or is about
to commit an offense of murder, kidnapping, gambling, robbery,
bribery, extortion, or dealing in narcotic drugs, marihuana or
other dangerous drugs, or other crime dangerous to life, limb,
or property, and punishable by imprisonment for more than one
year, designated in any applicable State statute authorizing
such interception, or any conspiracy to commit any of the
foregoing offenses.
6)Mandates the contents of any oral communications overheard
pursuant to this section shall be recorded on tape or other
comparable device. The recording of the contents shall be
done so as to protect the recording from editing or other
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alterations.
7)Provides that "barricading" occurs when a person establishes
an area from which others are excluded.
8)Prohibits a judge from granting an application made pursuant
to this section in anticipation that an emergency situation
will arise. A judge shall grant an application for
eavesdropping only if the peace officer has fully complied
with the requirements of this section. If an application is
granted pursuant to this section, an inventory shall be served
pursuant to exiting law.
9)Exempts the designated peace officer from completing the
Commission on Peace Officer Standards and Training (POST)
course on the legal, practical, and technical aspects of
interception of private wire, electronic pager, or electronic
cellular telephone communications and related investigative
techniques.
EXISTING LAW :
1)Grants upon informal application by the AG, Chief Deputy AG,
or Chief Assistant AG, Criminal Law Division, or a district
attorney, or the person designated to act as district attorney
in the district attorney's absence, the presiding judge of the
superior court or the first available judge designated may
grant oral approval for an interception, without an order, if
he or she determines all of the following:
a) There are grounds upon which an order could be issued
under this chapter;
b) There is probable cause to believe that an emergency
situation exists with respect to the investigation of an
offense enumerated in this chapter;
c) There is probable cause to believe that a substantial
danger to life or limb exists justifying the authorization
for immediate interception of a private wire, electronic
pager, or electronic cellular telephone communication
before an application for an order could with due diligence
be submitted and acted upon; and,
d) Approval for an interception under this section shall be
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conditioned upon filing with the judge, within 48 hours of
the oral approval, a written application for an order
which, if granted consistent with this chapter, shall also
recite the oral approval under this subdivision and be
retroactive to the time of the oral approval. (Penal Code
Section 629.56.)
2)Authorizes the AG, Chief Deputy AG, Chief Assistant AG of the
Department of Justice's (DOJ) Criminal Law Division, or
district attorney to apply to the presiding judge of the
superior court (or other judge designated by the presiding
judge) for an order authorizing the interception of a wire,
electronic pager, or electronic cellular phone communication
under specified circumstances. The specified circumstances
are as follows:
a) The identity of the law enforcement or investigative
officer making the application, and the officer who
authorized the application.
b) The identity of the law enforcement agency which plans
to execute the order.
c) A statement that the chief law enforcement officer of
the agency making the application that he or she has
reviewed the intercept application.
d) A full and complete statement of the facts and
circumstances relied on by the applying agency to justify a
belief that an order should be issued, including:
i) Details of the particular offense that has been, is
being, or is about to be committed;
ii) The fact that conventional investigative techniques
have been attempted and were unsuccessful, or why those
techniques appear unlikely to succeed or to be too
dangerous;
iii) A particular description of the nature and location
of the facilities from which, or the place where, the
communication is to be intercepted;
iv) A particular description of the type of
communication sought; and,
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v) The identity, if known, of the person committing the
offense and whose communications are to be intercepted;
if that person's identity is unknown, all information
relating to that person's identity known to the
applicant.
e) A statement of the period of time for which the
interception is required to be maintained.
f) A complete statement as to all previous applications to
state or federal courts for authorization of intercepts
involving the same persons, facilities, or places specified
in the application.
g) For an extension of an existing order, a statement must
set forth the number of communications intercepted pursuant
to the original order, and the results thus far obtained
from the interception or a reasonable explanation of the
failure to obtain results. (Penal Code Section 629.50.)
3)Allows a judge to enter an ex parte order, as requested or
modified, authorizing interception of wire, electronic pager,
or electronic cellular telephone communications initially
intercepted within the territorial jurisdiction of the court
in which the judge is sitting, if the judge determines, on the
basis of the facts submitted by the applicant, all of the
following:
a) There is probable cause to believe that an individual is
committing, has committed, or is about to commit, one of
the following offenses: (i) importation, possession for
sale, transportation, manufacture, or sale of controlled
with respect to a substance containing heroin, cocaine,
PCP, methamphetamine, or their precursors or analogs where
the substance exceeds 10 gallons by liquid volume or three
pounds of solid substance by weight; (ii) murder,
solicitation to commit murder, the commission of a felony
involving a destructive device; (iii) any felony violation
of participating in a criminal street gang; (iv) any felony
violation, relating to weapons of mass destruction, threats
to use weapons of mass destruction, relating to restricted
biological agents; or, (v) an attempt or conspiracy to
commit any of the above-mentioned crimes.
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b) There is probable cause to believe that particular
communications concerning the illegal activities will be
obtained through that interception, including, but not
limited to, communications that may be utilized for
locating or rescuing a kidnap victim.
c) There is probable cause to believe that the facilities
from which, or the place where, the wire, electronic pager,
or electronic cellular telephone communications are to be
intercepted are being used, or are about to be used, in
connection with the commission of the offense, or are
leased to, listed in the name of, or commonly used by the
person whose communications are to be intercepted.
d) Normal investigative procedures have been tried and have
failed or reasonably appear either to be unlikely to
succeed if tried or to be too dangerous. (Penal Code
Section 629.52.)
4)Requires each order authorizing the interception of any wire,
electronic pager, or electronic cellular telephone
communication shall specify all of the following:
a) The identity, if known, of the person whose
communications are to be intercepted, or if the identity is
not known, then that information relating to the person's
identity known to the applicant;
b) The nature and location of the communication facilities
as to which, or the place where, authority to intercept is
granted;
c) A particular description of the type of communication
sought to be intercepted, and a statement of the illegal
activities to which it relates;
d) The identity of the agency authorized to intercept the
communications and of the person making the application;
and,
e) The period of time during which the interception is
authorized including a statement as to whether or not the
interception shall automatically terminate when the
described communication has been first obtained. (Penal
Code Section 629.54.)
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5)Disallows the interception of any wire, electronic pager, or
electronic cellular telephone, or electronic communication for
any period longer than is necessary to achieve the objective
of the authorization, nor in any event longer than 30 days.
Extensions of an order may be granted, but only upon
application for an extension made in accordance with existing
law and upon the court making findings required under existing
law. The period of extension shall be no longer than the
authorizing judge deems necessary to achieve the purposes for
which it was granted and in no event any longer than 30 days.
Every order and extension thereof shall contain a provision
that the authorization to intercept shall be executed as soon
as practicable, shall be conducted so as to minimize the
interception of communications not otherwise subject to
interception under this chapter, and shall terminate upon
attainment of the authorized objective, or in any event at the
time expiration of the term designated in the order or any
extensions. (Penal Code Section 629.58.)
6)States that before evidence derived from an intercepted
communication may be received in evidence, each party must be
given a copy of the transcript of the contents of the
interception and a copy of the court order 10 days before any
court proceeding, except as otherwise specified. (Penal Code
Section 629.70.)
7)Provides that any person may move to suppress intercepted
communications on the basis that the contents or evidence were
obtained in violation of the Fourth Amendment to the United
States Constitution or of California electronic surveillance
provisions. (Penal Code Section 629.72.)
8)Requires that if a law enforcement officer overhears a
communication relating to a crime that is not specified in the
wiretap order, but is a crime for which a wiretap order could
have been issued, the officer may only disclose the
information and thereafter use the evidence if, as soon as
practical, he or she applies to the court for permission to
use the information. If an officer overhears a communication
relating to a crime that is not specified in the order, and
not one for which a wiretap order could have been issued, the
information may not be disclosed or used except to prevent the
commission of a crime. No evidence derived from the wiretap
can be used unless the officers can establish that the
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evidence was obtained through an independent source or
inevitably would have been discovered. In all instances, the
court may only authorize use of the information if it reviews
the procedures used and determines that the interception was
in accordance with state wiretap laws. [Penal Code Section
629.82(b).]
9)Prohibits the covert entry into a residential dwelling, hotel,
or motel room for installation or removal of any interception
device or for any other purpose. Covert entry to facilitate
an order to intercept communications is prohibited by the
provisions of wiretap law. (Penal Code Section 629.89.)
10)Mandates POST, in consultation with the AG, shall establish a
course of training on the legal, practical, and technical
aspects of the interception of private wire, electronic pager,
or electronic cellular telephone communications and related
investigative techniques. [Penal Code Section 629.94(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 2210 closes
a loophole in existing law relative to law enforcement conduct
in barricade and hostage situations to clarify that law
enforcement who deploy eavesdropping techniques in limited
circumstances are not subject to civil or criminal liability."
2)Background : According to information provided by the author,
"Currently, when law enforcement officers respond to a
barricaded suspect situation or a hostage situation, they are
unable to lawfully deploy eavesdropping devices to listen in
on the location. California Penal Code Section 632 makes it a
crime to eavesdrop upon confidential communications by means
of any electronic amplifying or recording device, in the
absences of consent from all parties. There is no search
warrant exception to this prohibition.
"Suspects who barricade themselves or who take hostages pose a
high level of risk to responding officers, hostages (when
present), and the general public. Common sense dictates that
peace officers should have the maximum possible amount of
information about the premises and parties, to enable them to
best resolve the situation and minimize the risk of injury of
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death.
"The use of eavesdropping devices is currently prohibited under
state law but is allowed under federal law. Federal law
allows states to implement their own laws so long as the state
laws are at least as protective as federal law.
"Eavesdropping is the interception of oral communications (not
wiretapping which is the interception of electronic
communications), also referred to as 'bugging'. California
law makes it a crime to eavesdrop on an oral communication
without the consent of all parties. (See Penal Code Section
632) There is no exception to this prohibition for law
enforcement, even in an emergency situation. Similarly, there
is no provision for eavesdropping under California's wiretap
statute.
"AB 2210 would authorize California law enforcement officers to
use eavesdropping devices under two very limited but extremely
dangerous situations involving suspects who barricade
themselves inside a location or who have taken innocent
persons hostage.
"AB 2210 tracks the requirements of federal law. It requires
the officer making the determination to be an officer
previously designated by District Attorney. The officer must
reasonably determine that an emergency exists that involves
immediate danger of death or serious physical injury. The
need for the eavesdropping must exist before a court order
allowing such an interception could be obtained with due
diligence. An application for a court order approving the
interception is made must be made within 48 hours of the
interception. The contents of the communication must be
recorded. Finally, if the order is denied, the contents of
the communication must be suppressed and may not be disclosed
or used. Except to prevent the commission of a public
offense."
3)Federal Warrantless Interception Exception and the State
Creation Thereof : The wire interception statutes, the
"Omnibus Crime Control and Safe Streets Act of 1968", are
codified at 18 U.S.C. sections 2510-2520. The federal scheme
sets forth strict requirements that the government must
fulfill in order to obtain authorization to conduct lawful
wire interceptions. "The Act, in effect, establishes minimum
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standards for the admissibility of evidence procured through
electronic surveillance; state law cannot be less protective
of privacy than the federal Act." [People v. Otto (1992) 2
Cal. 4th 1088, 1098.]
The emergency authorization section is a narrow exception to the
general rule requiring prior judicial authorization of wire
interceptions. U.S.C. Section 2518(7) provides that, in
certain emergency situations, a law enforcement officer may
intercept a wire communication if an application for an order
approving the interception is made within 48 hours after the
interception begins. An emergency situation is statutorily
defined as one that involves: "(i) immediate danger of death
or serious physical injury to any person, (ii) conspiratorial
activities threatening the national security interest, or
(iii) conspiratorial activities characteristic of organized
crime." [18 U.S.C. 2518(7)(a) (1970).] The statute further
states that an emergency must require a wire communication "to
be intercepted before an order authorizing such interception
can, with due diligence, be obtained." (Ibid.)
Very little case law interpretation of the emergency requirement
exists. One court, in Nabozny v. Marshall (6th Cir. 1986) 781
F.2d 83, held that an emergency situation existed warranting
retroactive judicial approval. In Nabozny, three men had
kidnapped a bank manager and were in the process of attempting
to extort money from the bank. The emergency in any case in
which a hostage is being held by force or threat of force is
clear.
The court in United States v. Capra (2d Cir. 1974) 501 F.2d 267
explained that, "Congress had in mind by the use of the term
'emergency' an important event, limited in duration, which was
likely to occur before a warrant could be obtained." (Id. at
277 n.8.) The Senate Report states that an emergency
interception may be authorized "where any investigative or law
enforcement officer determines . . . that an emergency
situation exists that requires a wire or oral communication to
be intercepted before an order authorizing an interception can
with due diligence be obtained." (1968 U.S. Code Cong. &
Admin. News 2112, 2193.) The Report further notes that "often
in criminal investigations a meeting will be set up and the
place finally chosen almost simultaneously. Requiring a court
order in these situations would be tantamount to failing to
authorize the surveillance." (Id.) When Congress enacted the
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Omnibus Crime Control and Safe Streets Act of 1968, it
provided for what it perceived to be adequate safeguards of
the right of the People to be free from unreasonable
governmental intrusions into legitimate expectations of
privacy. Congress carefully spelled out the judicial function
of prior approval of electronic eavesdropping, except in
certain narrowly defined emergency situations. An emergency
must arise quickly and before there is time to seek judicial
approval.
In a case from the Northern District of California, a
confidential informant had told authorities that a group of
suspects with a violent history was planning a robbery that
would take place within 60 days. [United States v. Crouch
(N.D. Cal. 1987) 666 F.Supp. 1414, 1416.] The evidence
revealed that the robbery was still in its planning state and
the court found that there was no evidence that the bank
robbery was going to happen immediately. (Id. at 1417.) "At
no point did the situation rise to the level of an imminent
danger of serious injury or death." (Ibid.) Thus, the Crouch
court granted a motion to suppress the wiretap evidence
because the warrantless interception did not meet the
emergency exception. (Id. at 1417-18.)
This bill expands California law within federal limitations as
required under Otto. In fact, this bill is more restrictive
than the federal statute on two fronts. First, this bill only
allows for emergency warrantless eavesdropping. Eavesdropping
is the interception of oral communications, also known as
"bugging." Second, this bill only allows warrantless
eavesdropping in one of the three outlined situations
designated under federal law, "the immediate danger of death
or serious physical injury to any person." (Section 1 of this
bill.)
On the other hand, this bill is more expansive than current
California law. At present, California only allows for an
application for oral approval of an interception during an
emergency to be made by the AG, Chief Deputy AG, Chief
Assistant AG or district attorney to the presiding judge for
first available judge. This bill allows for an emergency
eavesdropping determination to be made by a designated peace
officer. Second, current California law requires that
approval for an emergency interception must be filed with a
judge within 48 hours of the oral approval. This bill allows
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for the application to be made within 48 hours of the
beginning of the eavesdropping.
Since there are differences between eavesdropping and
interception, California must consider whether the different
uses in technology should warrant different treatment under
the California Penal Code for emergency situations.
4)Argument in Support : According to the Los Angeles County
District Attorney's Office , "Currently, when law enforcement
officers respond to a barricaded suspect situation or a
hostage situation, they are unable to lawfully deploy
eavesdropping devices to listen in on the location. California
Penal Code Section 632 makes it a crime to eavesdrop upon
confidential communications by means of any electronic
amplifying or recording device, in the absences of consent
from all parties. There is no search warrant exception to
this prohibition.
"Suspects who barricade themselves or who take hostages pose a
high level of risk to responding officers, hostages (when
present), and the general public. Common sense dictates that
peace officers should have the maximum possible amount of
information about the premises and parties, to enable them to
best resolve the situation and minimize the risk of injury of
[sic.] death.
"The use of eavesdropping devices is currently prohibited under
state law but it allowed under federal law. Federal law
allows states to implement their own laws so long as the state
laws are at least as protective as federal law.
"Eavesdropping is the interception of oral communications (not
wiretapping which is the interception of electronic
communications), also referred to as "bugging". California
law makes it a crime to eavesdrop on an oral communication
without the consent of all parties. (See Penal Code Section
632) There is no exception to this prohibition for law
enforcement, even in an emergency situation. Similarly, there
is no provision for eavesdropping under California's wiretap
statute.
"AB 2210 tracks the requirements of federal law. It requires
the officer making the determination to be an officer
previously designated by the District Attorney. The officer
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must reasonably determine that an emergency exists that
involves immediate danger of death or serious physical injury.
The need for eavesdropping must exist before a court order
allowing such an interception could be obtained with due
diligence. An application for a court order approving the
interception must be made within 48 hours of the interception.
The contents of the communication must be recorded. Finally,
if the order is denied, the contents of the communication must
be suppressed and may not be disclosed or used, except to
prevent the commission of a public offense."
5)Prior Legislation :
a) AB 569 (Portantino), Chapter 392, Statutes of 2007,
extended the sunset date regulating government interception
of electronic communications from January 1, 2008 until
January 1, 2012.
b) SB 1016 (Boatwright), Chapter 971, Statutes of 1995,
established California's wire intercept statute. The
initial sunset provision was established as January 1,
1999.
c) SB 688 (Alaya), Chapter 355, Statutes of 1977, extended
wire intercept sunset provision until January 1, 2003. SB
688 modified the definition of a "peace officer" to include
federal law enforcement in addition to state agents.
d) AB 74 (Washington), Chapter 605, Statutes of 2002,
delayed expiration of authority to intercept wire
communications until January 1, 2008. AB 74 permitted
additional designees the ability to apply for wire
intercept orders and allowed for additional modifications
of orders after the initial application. AB 74 added all
electronic paging devices to the list of devices that could
be intercepted and allowed the Judicial Council to
designate procedures for identifying a succession order of
judges permitted to authorize wire intercept orders. AB 74
permitted the AG to provide information (such as the
history of order applications for the target) to the
judicial officer after the order is authorized, rather than
exclusively requiring the basis for the order prior to the
application.
REGISTERED SUPPORT / OPPOSITION :
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Support
Association for Los Angeles Deputy Sheriffs
California Correctional Peace Officers Association
California State Sheriffs' Association
Los Angeles County District Attorney's Office
Riverside Sheriffs' Association
Opposition
None
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744