BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1010|
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THIRD READING
Bill No: AB 1010
Author: Furutani (D)
Amended: 5/19/11 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/28/11
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
ASSEMBLY FLOOR : 42-13, 5/26/11 - See last page for vote
SUBJECT : Law enforcement: communications
SOURCE : Los Angeles City Attorneys Office
DIGEST : This bill is to gives city attorneys prosecuting
misdemeanors the ability to record conversations.
ANALYSIS : 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 in the investigation of criminal conduct.
(Penal Code Section 630.)
Existing law prohibits wiretapping, eavesdropping, using
electronic devices to record or amplify a confidential
communication, and intercepting/recording cellular radio
telephone transmissions. (Penal Code Sections 631, 632,
632.5, 632.6, and 632.7.)
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Existing law exempts from the above provisions, the
Attorney General, any district attorney, specified peace
officers, and any person acting pursuant to the direction
of a law enforcement officer acting within the scope of
his/her authority from overhearing or recording any
communication that they could lawfully overhear or record
prior to the effective date of Penal Code section 633.
(Penal Code Section 633.)
Existing law provides that with the consent of the district
attorney of the county, the city attorney of any general
law or chartered city within the county may prosecute any
misdemeanor committed within the city arising out of a
violation of state law. (Government Code Section
41803.5(a).)
Existing law provides that in any case in which the
district attorney is granted any powers or access to
information with regard to the prosecution of misdemeanors,
this grant of powers or access to information shall be
deemed to apply to any other officer charged with the duty
of prosecuting misdemeanor charges in California.
(Government Code Section 41803.5(b).)
This bill provides that nothing in the laws prohibiting
eavesdropping prevents city attorneys prosecuting on behalf
of the people of the State of California under section
41803.5 of the Government Code or any person acting
pursuant to the direction of those city attorneys acting
within the scope of his/her authority, from overhearing or
recording any communication that they could lawfully
overhear or record.
Background
1996 Attorney General Opinion . In 1996, the San Diego City
Attorney requested an opinion from the Attorney General
whether the designation "district attorney," as used in
Penal Code section 633 with respect to the overhearing or
recording of conversations, included city attorneys who
prosecute misdemeanor cases. The Attorney General
concluded that the relevant Penal Code provision does not
include city attorneys who prosecute misdemeanor cases.
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However, when prosecuting misdemeanor charges, such
attorneys have the same powers granted to district
attorneys to overhear or record conversations pursuant to
Government Code section 41803.5. (�1996] 79 Op. Atty. Gen.
221.)
Government Code section 41803.5(b) provides: "in any case
in which the district attorney is granted any powers or
access to information with regard to the prosecution of
misdemeanors, this grant of powers or access to information
shall be deemed to apply to any other officer charged with
the duty of prosecuting misdemeanor charges in California,
as authorized by law." The Attorney General opined that
because a designated city prosecutor may have extensive
prosecutorial duties similar to those of a district
attorney, the need to obtain information to facilitate
misdemeanor prosecutions is the same. The clear intent of
the Legislature in enacting Government Code Section 41803.5
was to give city attorneys "the same powers and
informational access as district attorneys without the
necessity of changing each statutory grant of authority -
such as contained in Section 633."
Prior Legislation
AB 1884 (Spitzer), 2003-04 Session, which would have
allowed for the city attorneys to record conversations only
when they are investigating violations of laws that protect
consumers in their interactions in the marketplace for the
furnishing of goods and services. This bill went to the
Governor and was vetoed. The Governor's veto message
stated:
I strongly support the need to provide law enforcement
with as many tools as necessary to adequately protect
the citizens of California. The process in current law
ensures that if a prosecutor decides there is a need to
broach a person's privacy in an investigation, there is
a process in place which balances the need of the
investigation against a person's right to privacy. If
an investigation is of sufficient importance as to
merit electronic eavesdropping, a city attorney may
seek the cooperation and assistance of those agencies
which presently have the authority to do so.
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City attorneys who prosecute misdemeanor cases are a
vital component in the criminal justice system. While
this bill would eliminate one extra step they currently
must go through to obtain permission to record and use
communications in an investigation, it is not a process
that should be streamlined.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/28/11)
Los Angeles City Attorney's Office (source)
Better Business Bureau
California Consumer Affairs Association
California District Attorneys Association
League of California Cities
Los Angeles County District Attorney
San Diego City Attorney
OPPOSITION : (Verified 6/28/11)
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
ARGUMENTS IN SUPPORT : The Los Angeles City Attorney
states, "Under the current law, prosecuting city attorneys
must first seek authority from the district attorney to
record public conversations in the courts of an
investigation. This authorization can take days if not
weeks, through no fault of the district attorney's office.
The unnecessary delay can seriously hamper cases that rely
on timely investigations and, as a result, victims are
denied timely justice. AB 1010 will eliminate the
unnecessary burden placed on district attorney offices to
authorize and supervise city attorneys that request
permission to record public conversations.
"To be clear, this proposed change will not reverse an
earlier legislative policy decision to specifically exclude
city attorneys. Rather, Penal Code Section 633 predates
the authorization given to California city attorneys to
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prosecute state misdemeanors. The purpose of this bill,
therefore, is to bring Penal Code Section 633 up-to-date
with current law enforcement practices and to permit city
attorney prosecutors more efficient and effective use of an
investigative tool they already use on a regular basis."
The San Diego City Attorney further states, "The Consumer &
Environmental Protection Unity of my office investigates
and prosecutes crimes against consumers and the
environment. We are the agency responsible for
investigating crimes of false advertising and many theft
cases based upon consumer transactions. I have two
investigators in this unit who routinely pose as consumers
and respond to advertisements about which we have received
complaints. It is critically important in these cases to
capture exactly what is said in these conversations because
the words of the suspect are the criminal act. If the
conversation is not recorded, then the judge or jury who
hears the case will hear from two witnesses reporting the
conversation differently. Without a recording of the
conversation, it is extremely difficult to prove a false
advertising or theft by false pretense case beyond a
reasonable doubt."
ARGUMENTS IN OPPOSITION : According to the American Civil
Liberties Union, "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.
"If an investigation is of sufficient importance as to
merit electronic eavesdropping, these attorneys should seek
the cooperation and assistance of those agencies which
presently have the authority to do so. Creating further
encouragement and incentive to engage in this practice is
inconsistent with the legitimate expectation of privacy
surrounding confidential communication."
California Attorneys for Criminal Justice further argues,
"Current eavesdropping statutes authorize law enforcement
entities that have existing powers to either investigate
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and/or prosecute felony offenses. These offices receive
specialized training on the highest level of crimes and
therefore possess a unique level of expertise. A City
Attorney's office is not authorized to handle felony cases
and therefore is not required to undergo the same training
as the office of the Attorney General or county District
Attorney.
"In recent years there have been multiple attempts to
enhance the authority of city attorney offices. While we
respect the role of a City Attorney, it is not authorized
to handle felony cases and should be treated accordingly."
ASSEMBLY FLOOR :
AYES: Achadjian, Beall, Bill Berryhill, Block, Buchanan,
Chesbro, Conway, Cook, Dickinson, Donnelly, Eng, Feuer,
Fletcher, Fong, Furutani, Beth Gaines, Garrick, Gordon,
Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Hill,
Huber, Huffman, Knight, Ma, Mendoza, Miller, Morrell,
Nestande, Olsen, Portantino, Silva, Smyth, Swanson,
Valadao, Wagner, Williams, John A. P�rez
NOES: Allen, Ammiano, Charles Calderon, Fuentes, Galgiani,
Gatto, Jeffries, Logue, Mansoor, Nielsen, Norby, V.
Manuel P�rez, Yamada
NO VOTE RECORDED: Alejo, Atkins, Blumenfield, Bonilla,
Bradford, Brownley, Butler, Campos, Carter, Cedillo,
Davis, Gorell, Roger Hern�ndez, Hueso, Jones, Lara,
Bonnie Lowenthal, Mitchell, Monning, Pan, Perea, Skinner,
Solorio, Torres, Wieckowski
RJG:do 6/29/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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