BILL ANALYSIS
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
2210 (Fuentes)
Hearing Date: 08/02/2010 Amended: 07/15/2010
Consultant: Jacqueline Wong-HernandezPolicy Vote: Public Safety
7-0
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BILL SUMMARY: AB 2210 would permit a peace officer who is
authorized by a county district attorney or the Attorney General
to use an electronic amplifying or recording device to eavesdrop
on, and/or record, any oral communication in an emergency
situation involving a barricade or hostage situation, as
defined, if the peace officer reasonably determines that an
emergency situation exists, as specified.
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Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12 2012-13 Fund
Eavesdrop/wiretap authority Minor and absorbable
court costs General*
Incarceration costs Additional costs unlikely
to result from this bill General
*Trial Courts Trust Fund
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STAFF COMMENTS:
AB 2210 would conform restrictions on the use the eavesdropping
devices by law enforcement, in specified situations, to the
restrictions in federal law. Generally, under existing law,
wiretapping, eavesdropping, and recording of confidential
communications is prohibited except under specified
circumstances where law enforcement has a court order
authorizing such wiretap, eavesdropping or recording or there is
specific statutory authorization allowing such activity. While
under federal law, law enforcement has the authority under
specified circumstances, to use a listening device in a federal
barricade or hostage situation and later go to the court to get
an order to affirm the earlier decision to use the device. No
such state law exists currently in California.
This bill would allow specified peace officers in California to
use an electronic recording or amplifying device to eavesdrop on
and record the otherwise confidential 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, when all of the following conditions
are met:
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
federal law.
The officer reasonably determines that the emergency
situation requires that eavesdropping occur immediately.
Page 2
AB 2210 (Fuentes)
There are grounds upon which an order could be obtained
pursuant to federal law in regard to the offenses
enumerated therein.
Federal law defines an emergency situation as involving:
immediate danger of death or serious physical injury to
any person;
conspiratorial activities threatening the national
security interest; or
conspiratorial activities characteristic of organized
crime, that requires a wire, oral, or electronic
communication to be intercepted before an order authorizing
such interception can, with due diligence, be obtained. (18
USCS 2518 (7) (a).)
Consistent with federal law, this bill would require the peace
officer to file with the court an application within 48 hours of
the beginning of the eavesdropping seeking an order authorizing
the use of the eavesdrop on otherwise confidential
communications in the barricade or hostage situation. If the
order is denied the eavesdropping must cease (if it is still
going on). It is unlikely that a large number of new
applications for court authorization to use an electronic
recording or amplifying device to specifically eavesdrop on
barricade and hostage situations will result from this bill. The
minor increase in court hearings in any given county, resulting
from this process can be absorbed within existing resources.
This bill specifically states that it does not affect the
admissibility of evidence, thus just because an order is granted
does not mean that any recorded conversation will be admissible
if it would otherwise be deemed inadmissible. Existing
provisions providing for civil damages in Penal Code Section
637.2 would also apply to inappropriate uses of the process
created by this bill.
This bill is highly unlikely to result in any additional
incarceration costs. In a barricade or hostage situation, the
perpetrator has already committed serious crimes by virtue of
taking a hostage and/or barricading himself or herself in a
building and ignoring law enforcement orders to come out; the
latter is most often the result of resisting arrest for other
crimes, as well. Under existing criminal laws, the perpetrator
is likely to face incarceration, if he or she survives the
stand-off with law enforcement. This bill is unlikely to result
in new admissible evidence that would lengthen incarceration
time, especially since it specifically provides that nothing in
this bill would affect the admissibility of evidence. To the
extent that these provisions allow law enforcement to better
negotiate hostage release or a barricade by knowing what is
being expressed confidentially by the perpetrator, law
enforcement may be able to end these situations more
effectively, and better protect the safety of hostages.