BILL ANALYSIS �
AB 1526
Page 1
Date of Hearing: March 11, 2014
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1526 (Holden) - As Amended: February 24, 2014
SUMMARY : Extends the sunset date until January 1, 2020 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. (Pen.
Code, � 629.50.)
2)Defines "wire communication, electronic pager communication,"
"electronic cellular communication," and "aural transfer" for
the purposes of wiretaps. (Pen. Code, � 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. (Pen. Code, � 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. (Pen. Code, � 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. (Pen. Code, �
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.
(Pen. 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. (Pen. Code, � 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. (Pen. Code, �
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. (Pen. Code, � 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. (Pen. Code, � 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. (Pen. Code, � 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. (Pen. Code, � 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. (Pen. Code, � 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. (Pen. Code, � 629.82, subd. (b).)
15)Provides that the provisions governing wiretap sunsets on
January 1, 2012. (Pen. Code, � 629.98.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "California's
wiretap statute is set to expire on January 1, 2015. With the
evolution of the digital age, individuals have become more
clever and organized in drug and arms trafficking, therefore
requiring an equally sophisticated response from law
enforcement and its partners to disrupt and dismantle their
networks.
"Since its implementation, this statute has been used as an
effective tool for law enforcement agencies to further
investigate crimes involving narcotic transactions, criminal
street gangs, and violence, while also protecting one's
privacy. Additionally, this statute has also saved lives
especially trafficked victims who find themselves trapped in
an unwanted lifestyle and seek law enforcement for help. AB
1526 would extend the sunset date on California's wiretapping
law to assist law enforcement in keeping our communities
safe."
2)Overview of Wiretap Law : In general, California law prohibits
wiretapping. (Pen. Code, � 631.) However, a judge may grant
a wiretap if, after reviewing a law enforcement agency's
application, he or she makes specified findings. (Pen. Code,
� 629.52.) These findings include that law enforcement
exhaust all normal investigative procedures and fail prior to
applying for a wire intercept. (Pen. Code, � 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
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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.
3)Prior Legislation:
a) AB 74 (Washington), Chapter 605, Statutes of 2002,
extended the sunset date on California wiretap law from
January 1, 2003 to January 1, 2008.
b) AB 569 (Portantino), Chapter 391, Statutes of 2007,
extended the sunset date on California wiretap law from
January 1, 2008 to January 1, 2012.
c) SB 61 (Pavley), Chapter 663, Statutes of 2011, extended
the sunset date on California wiretap law from January 1,
2012 to January 1, 2015.
REGISTERED SUPPORT / OPPOSITION :
Support
California Police Chiefs Association
California Narcotic Officers Association
California State Sheriffs' Association
Citizens for Law and Order
Crime Victims Action Alliance
Opposition
None
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
AB 1526
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319-3744