BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
6
1
SB 61 (Pavley)
As Introduced December 22, 2010
Hearing date: March 22, 2011
Penal Code
MK:mc
WIRETAPPING: AUTHORIZATION
HISTORY
Source: Los Angeles County District Attorney
Prior Legislation:SB 1428 (Pavley) - Ch. 707 Stats. 2010
AB 569 (Portantino) - Ch. 307, Stats. 2007
AB 74 (Washington) - Ch. 605, Stats. 2002
Proposition 21 - approved March 7, 2000
SB 1016 (Boatwright) - Ch. 971, Stats.
1995
SB 800 (Presley) - Ch. 548, Stats. 1993
SB 1120 (Presley) - 1991
SB 83 - amended out in part and
chaptered in part as SB 1499 (1988)
SB 1499 - Ch. 111, Stats. 1988
Support: California State Sheriffs' Association; California
Police Chiefs Association; California District
Attorneys Association; Riverside Sheriffs' Association;
Association for Los Angeles Deputy Sheriffs; California
Peace Officers' Association
Opposition:None known
(More)
SB 61 (Pavley)
Page 2
KEY ISSUE
SHOULD THE SUNSET DATE ON THE PROVISIONS AUTHORIZING THE USE OF
WIRETAPS BY LAW ENFORCEMENT UNDER SPECIFIED CIRCUMSTANCES BE
EXTENDED?
PURPOSE
The purpose of this bill is to extend the sunset provision on
the law that authorizes wiretaps by law enforcement under
specified circumstances.
Existing law authorizes the Attorney General, chief deputy
attorney general, chief assistant attorney general, district
attorney or the district attorney's designee to apply to the
presiding judge of the superior court for an order authorizing
the interception of wire or electronic communications under
specified circumstances. (Penal Code �� 629.50 et. seq.)
Existing law provides that the provisions governing wiretap
sunsets on January 1, 2012. (Penal Code � 629.98.)
This bill extends that sunset to January 1, 2015.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
(More)
SB 61 (Pavley)
Page 3
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
SB 61 is needed to ensure the continuation of the
California State Wiretap Statute which includes both
telephone and electronic communication technologies.
The current program sunsets on January 1, 2012.
California and federal law enforcement agencies and
(More)
SB 61 (Pavley)
Page 4
multi-agency task forces have used the law with great
success since its enactment in 1989 to solve the most
serious and difficult crimes, such as organized crime
and drug trafficking, while maintain an emphasis on the
protection of individual privacy.
Last year, Senator Pavley updated the state's wiretap
program to include the interception of communications by
e-mail, blackberry, instant messaging by phone and other
forms of contemporaneous two-way electronic
communication. The new law recognizes the expanding use
of electronic devices in the planning of criminal
activities and modernized our state's wiretap law so
that court-approved interceptions of communication from
the latest technologies are a relevant option for law
enforcement investigations.
SB 61 extends the operation of California's wiretap law
until 2015 and ensures re-enactment of the statute,
including the technological updates that were approved
last year.
In Los Angeles County it is estimated that 50-75 major
narcotic division cases (usually involving large
seizures and approximately 25-40 homicide cases are
affected annually by California's wiretap statute.
2. Federal Wiretapping Law
a. The Fourth Amendment Protects Telephone
Communications
The United States Supreme Court ruled in Katz v. United
States (1967) 389 U.S. 347, 88 S.CT. 507, 19 L.ED.2D 576,
that telephone conversations were protected by the Fourth
Amendment to the United States Constitution. Intercepting a
conversation is a search and seizure similar to the search
of a citizen's home. Thus, law enforcement is
constitutionally required to obtain a warrant based on
(More)
SB 61 (Pavley)
Page 5
probable cause and to give notice and inventory of the
search.
b. Title III Allows Wiretapping Under Strict
Conditions
In 1968, Congress authorized wiretapping by enacting Title
III of the Omnibus Crime Control and Safe Streets Act. (See
18 USC Section 2510 et seq.) Out of concern that telephonic
interceptions do not limit the search and seizure to only
the party named in the warrant, federal law prohibits
electronic surveillance except under carefully defined
circumstances. The procedural steps provided in the Act
require "strict adherence." (United States v. Kalustian,
529 F.2d 585, 588 (9th Cir. 1976)), and "utmost scrutiny
must be exercised to determine whether wiretap orders
conform to Title III.") Several of the relevant statutory
requirements may be summarized as follows:
i. Unlawfully intercepted communications or
non-conformity with the order of authorization may
result in the suppression of evidence.
ii. Civil and criminal penalties for statutory
violations.
iii. Wiretapping is limited to enumerated
serious felonies.
iv. Only the highest ranking prosecutor may
apply for a wiretap order.
v. Notice and inventory of a wiretap shall be
served on specified persons within a reasonable time
but not later than 90 days after the expiration of the
order or denial of the application.
vi. Judges are required to report each
individual interception. Prosecutors are required to
report interceptions and statistics to allow public
monitoring of government wiretapping.
c. The Necessity Requirement - Have Other
Investigative Techniques Been Tried Before Applying to
(More)
SB 61 (Pavley)
Page 6
the Court for a Wiretap Order
(More)
Both federal and California law require that each wiretap
application include "a full and complete statement as to
whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous." (18
USC Section 2518 (1)(c); Penal Code Section 629.50(d).)
Often referred to as the "necessity requirement," it exists
in order to limit the use of wiretaps, which are highly
intrusive. (United States v. Bennett, 219 F.3d 1117, 1121
(9th Cir. 2000).) The original intent of Congress in
enacting such a provision was to ensure that wiretapping was
not resorted to in situations where traditional
investigative techniques would suffice to expose the crime.
The United States Court of Appeals for the Ninth Circuit
recently suppressed wiretap evidence against a defendant and
reversed his conviction for failure of the government to
make a showing of necessity for the electronic monitoring.
Purged of material omissions and misstatements, the Court
held that the application failed to contain sufficiently
specific facts to satisfy the requirements of 18 USC Section
2518(1)(c). (United States v. Blackmon, 2001 U.S. App.
LEXIS 26428, 2001 Cal. Daily Op. Service 10328; 2001 Daily
Journal DAR 12897.)
3. Department of Justice's 2006 Legislative Report
The 2009 Attorney General "Annual Report on Electronic
Interceptions" indicates that the total number of electronic
interceptions decreased in California in 2009 to 601, from 622
in 2008, and 712 in 2007. The number of murder arrests
resulting from electronic interceptions, however, significantly
increased from 121 in 2008, to 207 in 2009.
4. Expansion of the Sunset
In general, California law prohibits wiretapping. However, a
judge may grant a wiretap if, after reviewing a law enforcement
agency's application, he or she makes specified findings. These
(More)
SB 61 (Pavley)
Page 8
findings include that law enforcement exhaust all normal
investigative procedures and fail prior to applying for a wire
intercept. A wiretap authorization may only be granted for the
investigation of specified drug offenses, murder, criminal
street gang activity, weapons of mass destruction, possessing
restricted biological agents. Existing law sunsets the wiretap
provisions on January 1, 2012. This bill would extend that
sunset to January 12, 2015.
***************