BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
AB 1526 (Holden) - Wiretapping: authorization.
Amended: February 24, 2014 Policy Vote: Public Safety 5-0
Urgency: No Mandate: Yes
Hearing Date: June 30, 2014
Consultant: Jolie Onodera
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 1526 would extend the sunset on provisions
governing the interception of electronic communications from
January 1, 2015, to January 1, 2020.
Fiscal Impact:
Ongoing significant state costs (General Fund) potentially in
the millions of dollars, to the extent continuing the current
authorization for electronic interceptions leads to additional
state prison commitments.
Major ongoing non-reimbursable local law enforcement costs as
a result of continuing electronic interception authorization,
in the range of $31 million, according to the self-reported
personnel and resources costs from the counties reported to
the Department of Justice (DOJ) for 2012. (Costs related to
extending electronic interception authorization are likely
offset to a degree by related savings as a result of more
efficient law enforcement practices.)
Non-reimbursable local law enforcement costs, offset to a
degree by fine revenue, for violations of the electronic
interception statutes, which are punishable by a fine not
exceeding $2,500, imprisonment in the county jail for up to
one year, or by imprisonment pursuant to subdivision (h) of
Section 1170 of the Penal Code, or by both the fine and
imprisonment.
Potential ongoing state law enforcement costs to DOJ for its
electronic interception efforts.
Minor annual costs to DOJ, likely less than $50,000 (General
Fund) for the detailed annual report.
Background: State wiretap law was originally enacted in 1989
and granted law enforcement officers the right to use
wiretapping while investigating specific types of crimes. SB
1428 (Pavley) Chapter 707/2010 expanded the use of wiretapping
to include the interception of modern types of electronic
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communications.
The number of electronic interception orders in California
averaged approximately 700 in both 2011 and 2012. According to
the DOJ 2011 California Electronic Interceptions Report, 697
interception orders were authorized in 21 counties, leading to
697 arrests and 193 convictions. The DOJ 2012 California
Electronic Interceptions Report indicates 707 interception
orders were authorized in 16 counties, leading to 961 arrests.
The majority of these arrests are currently pending prosecution,
with 58 convictions reported to date. The crimes for which
arrests were made vary, but charges were largely narcotics- (51
percent) or gang- (20 percent) related.
Electronic interceptions are used as an investigative tool, one
of many at law enforcement's disposal. As one example of the
significant impact of electronic intercepts and their importance
as a tool for law enforcement agencies to use in investigating
crimes involving narcotics transactions, criminal street gangs,
and violence, the DOJ 2012 report cites the seizure of over $1.3
million, 799 pounds of methamphetamine, and 65 kilograms of
cocaine in Imperial County due to the assistance of 15
electronic intercept orders.
Current law authorizes the Attorney General or the district
attorney to apply to the Superior Court for an order authorizing
interception of a wire or electronic communication under
specified circumstances. The crimes for which an electronic
interception order may be sought include murder, solicitation to
commit murder, bombing, use or threat to use weapons of mass
destruction, criminal gang activity, and importation, possession
for sale, transportation, manufacture or sale of heroin,
cocaine, PCP, or methamphetamine. Written reports must be
submitted at the discretion of the court, but at least every 10
days, to the judge who issues the order.
Current law requires the Attorney General to prepare and submit
a detailed annual report to the Legislature, the Judicial
Council, and the Director of the Administrative Office of the
Courts on electronic interceptions conducted during the
preceding year. Information for this report is to be provided to
the Attorney General by any prosecutorial agency seeking an
electronic interception order.
Proposed Law: This bill would extend the sunset on provisions
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governing electronic interceptions from January 1, 2015, to
January 1, 2020.
Related Legislation: SB 35 (Pavley) 2013 is identical to this
measure. SB 35 is pending hearing in the Assembly Committee on
Appropriations.
SB 955 (Mitchell) 2014 adds human trafficking to the list of
offenses for which interception of electronic communications may
be ordered. This bill also extends the sunset on the provisions
governing the interception of electronic communications from
January 1, 2015, to January 1, 2020. This bill is pending
hearing in the Assembly Committee on Appropriations.
Prior Legislation: AB 569 (Portantino) Chapter 391/2007,
extended the provisions authorizing the use of wiretaps by law
enforcement to January 1, 2012.
SB 1428 (Pavley) Chapter 707/2010, expanded the scope of
wiretapping provisions to include the interception of modern
types of electronic communications. This bill also proposed to
extend the sunset on wiretap provisions to January 1, 2014,
however, the provision was amended out of the chaptered version
of the bill.
SB 61 (Pavley) Chapter 663/2011, extended the sunset to January
1, 2015.
Staff Comments: It is unknown how many electronic interception
orders would be authorized between January 1, 2015, and January
1, 2020, or how many arrests, convictions, and prison
commitments would result directly from their use. In order to
obtain intercept authority, law enforcement must already be
investigating specific criminal activity, with electronic
interceptions to be used after all other normal investigative
procedures have been exhausted. It is unclear how many
investigations could have led to successful convictions even in
the absence of electronic interceptions.
Moreover, electronic interception evidence makes it more
difficult to prove a defendant's innocence and could ultimately
result in an indeterminable level of reduced trial and
incarceration costs to the extent that a defendant is more
likely to plea bargain due to the existence of electronic
interception evidence of his or her guilt. Nonetheless, if even
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two additional defendants are sentenced to state prison directly
attributable to an electronic interception, the annual costs
would exceed the threshold for referral to the Suspense File of
this Committee.