BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2210|
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THIRD READING
Bill No: AB 2210
Author: Fuentes (D)
Amended: 7/15/10 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/29/10
AYES: Leno, Cogdill, Cedillo, Hancock, Huff, Steinberg,
Wright
SENATE APPROPRIATIONS COMMITTEE : 8-0, 8/2/10
AYES: Kehoe, Alquist, Ashburn, Corbett, Emmerson, Price,
Wolk, Yee
NO VOTE RECORDED: Leno, Walters, Wyland
ASSEMBLY FLOOR : 74-0, 5/6/10 (Consent) - See last page for
vote
SUBJECT : Intercepted communications: hostage taking and
barricading
SOURCE : Los Angeles District Attorneys Office
DIGEST : This bill allows law enforcement to eavesdrop in
a barricade or hostage situation.
ANALYSIS : Existing law prohibits a person from
intentionally eavesdropping upon or recording a
confidential communication by means of any electronic
amplifying device or recording device without the consent
of all parties to the communication. Under existing law,
CONTINUED
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specified law enforcement agents may make a written
application to a judge to authorize the interception of a
wire, electronic pager, or electronic cellular telephone
communication. In certain instances the application can be
made informally and granted orally if an emergency
situation exists, as specified.
This bill provides that notwithstanding other prohibitions,
and in accordance with federal law, a designated peace
officer may 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 barricading of a
location if all of the following are satisfied:
1. 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 Section 2518(7)(a)(i) of Title 18 of the
United States Code.
2. The officer reasonably determines that the emergency
situation requires that eavesdropping on oral
communication occur immediately.
3. There are grounds upon which an order could be obtained
pursuant to Section 2516(2) of Title 18 of the United
States Code in regard to the offenses enumerated
therein.
This bill provides that only a peace officer who has been
designated by either a district attorney in the county
where the emergency exists, or by the attorney general to
make the necessary determinations may make those
determinations for purposes of this section.
This bill 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.
This bill provides that if the determination is made by a
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designated peace officer that an emergency situation exists
and an eavesdropping device has been deployed, 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
Section 629.50 of the Penal Code.
This bill provides that a court may grant an application
authorizing the use of electronic amplifying or recording
devices to eavesdrop on 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 and
offense listed in Section 25216(2) of Title 18 of the
United States Code.
This bill provides that the contents of any oral
communication 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 alterations.
This bill provides that a "barricading" occurs when a
person refuses to come out from a covered or enclosed
position. Barricading also occurs when a person is held
against his or her will and the captor has not made a
demand.
This bill provides that a "hostage situation" occurs when a
person is held against his or her will and the captor has
made a demand.
This bill provides that a judge shall not grant an
application made pursuant to this section in anticipation
that such an emergency will arise.
This bill provides that a judge shall grant an application
authorizing the use of electronic amplifying or recording
devices to eavesdrop on 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 listed in Section 2516(2) of Title 18 of the United
States Code, and only if the peace officer has fully
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complied with requirements of this section.
This bill provides that if an application is granted
pursuant to this section, an inventory shall be served
pursuant to Section 629.68.
This bill provides that it does not require that a peace
officer designated undergo POST [Commission on Peace
Officer Standards and Training] training on wiretaps.
This bill provides that a peace officer who has been
designated to use an eavesdropping device shall cease use
of the device upon the termination of the barricade or
hostage situation, or upon the denial by a judge of an
application for an order to approve the eavesdropping,
whichever is earlier.
This bill, as proposed to be amended, provides that nothing
in this section shall be deemed to affect the admissibility
or inadmissibility of evidence.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
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 General
from this bill
* Trial Court Trust Fund
SUPPORT : (Verified 8/3/10)
Los Angeles District Attorney's Office (source)
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California State Sheriffs Association
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Riverside Sheriffs' Association
ARGUMENTS IN SUPPORT : According to 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 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.
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"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."
Supporters argue that this is a "lifesaving measure"
allowing law enforcement to take control of an emergency
situation and to use these devices to determine what is
going on behind the barricade or in a hostage situation in
order to resolve the situation safely.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Blumenfield,
Bradford, Brownley, Buchanan, Caballero, Charles
Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De
Leon, DeVore, Emmerson, Eng, Evans, Feuer, Fletcher,
Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani,
Garrick, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Lieu, Logue,
Bonnie Lowenthal, Ma, Miller, Monning, Nava, Nestande,
Niello, Nielsen, Norby, V. Manuel Perez, Portantino,
Ruskin, Salas, Saldana, Silva, Skinner, Smyth, Solorio,
Audra Strickland, Swanson, Torlakson, Torres, Torrico,
Tran, Villines, Yamada, John A. Perez
NO VOTE RECORDED: Bass, Block, De La Torre, Gilmore,
Mendoza, Vacancy
RJG:mw 8/4/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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