BILL ANALYSIS �
SB 61
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Date of Hearing: June 21, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 61 (Pavley) - As Introduced: December 22, 2010
SUMMARY : Extends the sunset date until January 1, 2015 on
provisions of California law which authorize the Attorney
General (AG), 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.
EXISTING LAW :
1)Authorizes the AG, 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, electronic digital pager, or electronic cellular
telephone communications under specified circumstances.
(Penal Code Section 629.50.)
2)Defines "wire communication, electronic pager communication,"
"electronic cellular communication," and "aural transfer" for
the purposes of wiretaps. (Penal Code Section 629.51.)
3)Defines "aural transfer" as a transfer containing the human
voice at any point between and including the point of origin
and the point of reception. (Penal Code Section 629.51.)
4)Specifies the crimes for which an interception order may be
sought: murder; kidnapping; bombing; criminal gangs; and
possession for sale, sale, transportation; or manufacturing of
more than three pounds of cocaine, heroin, PCP,
methamphetamine or its precursors; possession of a destructive
device, weapons of mass destruction or restricted biological
agents. (Penal Code Section 629.52.)
5)Provides that the court may grant oral approval for an
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emergency interception of wire, electronic pager or electronic
cellular telephone communications without an order as
specified. Approval for an oral interception shall be
conditioned upon filing with the court, within 48 hours of the
oral approval, a written application for an order. Approval
of the ex parte order shall be conditioned upon filing with
the judge within 48 hours of the oral approval. (Penal Code
Section 629.56.)
6)Provides that no order entered under this chapter shall
authorize the interception of any wire, electronic pager or
electronic cellular telephone or electronic communication for
any period loner than is necessary to achieve the objective of
the authorization, nor in any event longer than 30 days.
(Penal Section Code 629.58.)
7)Requires that written reports showing what progress has been
made toward the achievement of the authorized objective,
including the number of intercepted communications, be
submitted at least every six days to the judge who issued the
order allowing the interception. (Penal Code Section 629.60.)
8)Provides that whenever an order authorizing an interception is
entered the order shall require a report be made to the AG
showing what persons, facilities, or places are to be
intercepted pursuant to the application, and the action taken
by the judge on each of these applications. (Penal Code
Section 629.61.)
9)Requires the Attorney General to prepare and submit an annual
report to the Legislature, the Judicial Council and the
Director of the Administrative Office of the United States
Court on interceptions conducted under the authority of the
wiretap provisions and specifies what the report shall
include. (Penal Code Section 629.62.)
10)Provides that applications made and orders granted shall be
sealed by the judge. Custody of the applications and orders
shall be where the judge orders. The applications and orders
shall be disclosed only upon a showing of good cause before a
judge and shall not be destroyed except on order of the
issuing or denying judge, and in any event shall be kept for
10 years. (Penal Code Section 629.66.)
11)Provides that a defendant shall be notified that he or she
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was identified as the result of an interception prior to the
entry of a plea of guilty or nolo contendere, or at least 10
days, prior to any trial, hearing or proceedings in the case
other than an arraignment or grand jury proceeding. Within 10
days prior to trial, hearing or proceeding the prosecution
shall provide to the defendant a copy of all recorded
interceptions from which evidence against the defendant was
derived, including a copy of the court order, accompanying
application and monitory logs. (Penal Code Section 629.70.)
12)Provides that any person may move to suppress intercepted
communications on the basis that the contents or evidence were
obtained in violation of the Fourth Amendment to the United
States Constitution or of California electronic surveillance
provisions. (Penal Code Section 629.72.)
13)provides that the AG, any deputy attorney general, district
attorney or deputy district attorney or any peace officer who,
by any means authorized by this chapter has obtained knowledge
of the contents of any wire, electronic pager, or electronic
cellular telephone communication or evidence derived there
from, may disclose the contents to one of the individuals
referred to in this section and to any investigative or law
enforcement officer as defined in subdivision (7) of Section
2510 of Title 18 of the United State Code to the extent that
the disclosure is permitted pursuant to Penal Code Section
629.82 and is appropriate to the proper performance of the
official duties of the individual making or receiving the
disclosure. No other disclosure, except to a grand jury, of
intercepted information is permitted prior to a public court
hearing by any person regardless of how the person may have
come into possession thereof. (Penal Code Section 629.74.)
14)Provides that if a law enforcement officer overhears a
communication relating to a crime that is not specified in the
wiretap order, but is a crime for which a wiretap order could
have been issued, the officer may only disclose the
information and thereafter use the evidence, if, as soon as
practical, he or she applies to the court for permission to
use the information. If an officer overhears a communication
relating to a crime that is not specified in the order, and
not one for which a wiretap order could have been issued or
any violent felony, the information may not be disclosed or
used except to prevent the commission of a crime. No evidence
derived from the wiretap can be used unless the officers can
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establish that the evidence was obtained through an
independent source or inevitably would have been discovered.
In all instances, the court may only authorize use of the
information if it reviews the procedures used and determines
that the interception was in accordance with state wiretap
laws. �Penal Code Section 629.82 (b).]
15)Provides that the provisions governing wiretap sunsets on
January 1, 2012. (Penal Code Section 629.98.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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 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 maintaining an emphasis on the protection
of individual privacy.
"Last year, California wiretap program was updated to include
the interception of communications by e-mail, blackberry,
instant messaging by phone and other forms of contemporaneous
two-way electronic communication. These provisions were added
because many criminals today have moved to electronic
communications to easily escape law enforcement's reach for
their illicit activities. 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 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
multiple defendants) and approximately 25-40 homicide cases
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are affected annually by the law."
2)Department of Justice's 2006 Legislative Report : On August 2,
2006, the Department of Justice released the AG's "Annual
Report on Electronic Interceptions" for 2005. Specifically,
the report articulated the following:
a) Thirteen counties (Alameda, Fresno, Imperial, Los
Angeles, Monterey, Orange, Riverside, Sacramento, San
Bernardino, San Diego, San Luis Obispo, Stanislaus, and
Ventura) submitted reports to the AG's Office detailing
their use of electronic intercepts.
b) The remaining 45 counties reported no electronic
intercept activity during 2005.
c) The total number of intercept orders granted by superior
court judges increased from 190 in 2004 to 282 in 2005.
d) Of the 282 wiretap orders granted by California superior
courts in 2005, 245 were used to investigate narcotics
offenses, while 36 were used to investigate violent crimes.
e) Nine hundred and eighty individuals were arrested in the
as a result of the 282 wiretaps authorized in 2005.
f) The cost of electronic intercepts is as follows:
i) Total Cost: $25,514,664
ii) Average Cost Per Arrest:
16,703
iii) Average Cost Per Conviction:
33,407
iv) Average Cost Per Order:
6,813
g) Of the total 283 wiretap orders sought, 282 were granted
by superior court judges.
h) Ninety-five thousand, one hundred and sixty nine
incriminating conversations were intercepted while 566,060
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non-incriminating conversations were intercepted.
3)Overview of Wiretap Law : In general, California law prohibits
wiretapping. (Penal Code Section 631.) However, a judge may
grant a wiretap if, after reviewing a law enforcement agency's
application, he or she makes specified findings. (Penal Code
Section 629.52.) These findings include that law enforcement
exhaust all normal investigative procedures and fail prior to
applying for a wire intercept. (Penal Code Section 629.50.)
a) Prior to the enactment of Penal Code Section 629.50 et
seq., wiretapping statutes did not permit the interception
of oral or electronic communications and permitted
wiretapping only during the investigation of specified
offenses involving controlled substances.
b) The Legislature enacted Section 629.50 et seq. in 1995
"in order to expand California wiretap law to conform with
federal law" as it existed at the time. �People v. Zepeda
(2001) 87 Cal.App.4th 1183, 1196.]
Federal law regulates the interception of wire, oral, and
electronic communications under 18 United States Code Sections
2510 to 2520.
4)Argument in Support : According to the Los Angeles County
District Attorney's Office (the sponsor of this bill),
"California's wiretap law has been a successful tool in
addressing major crime. In 2010, there were 259 wiretap
orders and extensions issued to our office related to
dangerous narcotics, murder, and gang investigations. Over
90% of these orders resulted in criminal case filing or
seizures of narcotics and illicit funds."
5)Prior Legislation :
a) SB 1016 (Boatwright), Chapter 971, Statutes of 1995,
established California's wire intercept statute. The
initial sunset date was January 1, 1999.
b) SB 688 (Alaya), Chapter 355, Statutes of 1977, extended
wire intercept sunset provision until January 1, 2003. SB
688 modified the definition of a "peace officer" to include
federal law enforcement in addition to state agents.
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c) AB 74 (Washington), Chapter 605, Statutes of 2002,
delayed expiration of authority to intercept wire
communications until January 1, 2008. AB 74 permitted
additional designees the ability to apply for wire
intercept orders and allowed for additional modifications
of orders after the initial application. AB 74 added all
electronic paging devices to the list of devices that could
be intercepted and allowed the Judicial Council to
designate procedures for identifying a succession order of
judges permitted to authorize wire intercept orders. AB 74
permitted the AG to provide information (such as the
history of order applications for the target) to the
judicial officer after the order is authorized, rather than
exclusively requiring the basis for the order prior to the
application.
d) AB 569 (Portantino), Chapter 391, Statutes of 2007,
extended the sunset date regulating government interception
of electronic communications from January 1, 2008 until
January 1, 2012.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County District Attorney's Office (Sponsor)
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744