BILL ANALYSIS
AB 2210
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Date of Hearing: April 28, 2010
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 2210 (Fuentes) - As Amended: April 7, 2010
Policy Committee: Public
SafetyVote: 7-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill authorizes a designated peace officer to use
warrantless eavesdropping and record any oral communication in a
particular location in response to an emergency situation
involving a hostage and/or a barricade if the officer determines
all of the following:
a) An emergency situation exists involving the immediate
danger of death or serious injury to any person pursuant to
federal law.
b) The emergency situation requires the eavesdropping occur
immediately.
c) There are grounds upon which an eavesdropping court
order could be obtained.
If the determination is made by the designated peace officer
that an emergency situation exists and communications are
overheard, application for an order approving the eavesdropping
must be made within 48 hours.
FISCAL EFFECT
Minor absorbable court costs to the extent a court is required
to make a determination regarding a retroactive eavesdropping
order that may have otherwise not been requested.
Potential, likely minor, annual state incarceration costs to the
extent this bill results in more effective prosecution that
results in additional state prison commitments. New
AB 2210
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incarceration costs, however, are likely to be minor, as in most
hostage and barricade situations offenders are eventually
convicted, if, as noted by the L.A. D.A.'s Office, they survive.
COMMENT
1)Rationale . The author's intent is to stay within the confines
of federal law, while creating a process for an emergency oral
eavesdropping approval to protect the lives of hostages.
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."
"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
death.
"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."
2)Federal Law v. State Law . AB 2210 reflects the requirements of
federal warrantless eavesdropping law. It requires the
determining officer to be previously so designated by District
Attorney. The officer must determine an emergency exists that
involves immediate danger of death or serious 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 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, as specified.
AB 2210
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As noted by the Assembly Public Safety analysis, this bill is
more restrictive than the federal statute in two ways. First,
this bill authorizes only emergency warrantless eavesdropping.
Second, this bill allows warrantless eavesdropping only in one
of the three outlined situations designated under federal law:
the immediate danger to any person.
AB 2210 expands California law, which allows application for
oral approval of an interception during an emergency to be
made only by the AG or district attorney, or their designees.
AB 2210 authorizes an emergency eavesdropping determination to
be made by a designated peace officer. Second, California law
requires that approval for an emergency interception must be
filed with a judge within 48 hours of the oral approval. This
bill authorizes the application to be made within 48 hours of
the eavesdropping.
3)Support . The L.A. District Attorney's Office notes the
emergency nature of this proposal and cites the parallels to
federal law and the need to protect hostages.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081