BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
3
5
SB 35 (Pavley)
As Amended: January 6, 2014
Hearing date: January 14, 2014
Penal Code
MK:sl
WIRETAPPING: AUTHORIZATION
HISTORY
Source: Los Angeles County District Attorney
Prior Legislation:SB 61 (Pavley) Ch. 663, Stats. 2011
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: Association for Los Angeles Deputy Sheriffs; Los
Angeles County Probation Officers Union; Los Angeles
Police Protective League; Riverside Sheriffs'
Association
Opposition:None known
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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, 2015. (Penal Code � 629.98.)
This bill extends that sunset to January 1, 2020.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
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Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150 percent of capacity, and reach as high as
185 percent of capacity at one prison, continue to deliver
health care that is constitutionally deficient." In an order
dated January 29, 2013, the federal court granted the state a
six-month extension to achieve the 137.5 percent prisoner
population cap by December 31, 2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5 percent design
capacity by December 31, 2013." On September 16, 2013, the
State asked the Court to extend that deadline to December 31,
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2016. In response, the Court extended the deadline first to
January 27, 2014 and then February 24, 2014, and ordered the
parties to enter into a meet-and-confer process to "explore how
defendants can comply with this Court's June 20, 2013 Order,
including means and dates by which such compliance can be
expedited or accomplished and how this Court can ensure a
durable solution to the prison crowding problem."
As of December 4, 2013, California's 33 prisons were at 146.2
percent capacity, with 119,258 inmates.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
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According to the author:
The California State Wiretap Statute sunsets on January
1, 2015, unless it receives reauthorization.
California 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.
In 2009, California's wiretap program was updated to
include the interception of communications by email,
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. This 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 35 extends the operation of California wiretap law
until 2020 and ensures re-enactment of the statute,
including the technological updates.
In the last three years (2011-2013), wiretap
investigations involving just drug trafficking, led to
the seizure of over $90 million in narcotics and
narcotic proceeds in Los Angeles County alone.
2. Federal Wiretapping Law
a. The Fourth Amendment Protects Telephone
Communications
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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
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.
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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
the Court for a Wiretap Order
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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 2012 Attorney General "Annual Report on Electronic
Interceptions" states that:
During the 2012 reporting period, 707 electronic
interception orders were approved in 16 California
counties. These electronic interception orders resulted
in 961 arrests. Over 87 percent of the requested and
approved interception orders included narcotics as a
precipitating offense. Notably, over 51 percent of the
resulting arrests included a narcotics charge and about
20 percent included a gang charge. A majority of these
arrests are currently pending prosecution.
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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
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 and possessing
restricted biological agents. Existing law sunsets the wiretap
provisions on January 1, 2015. This bill would extend that
sunset to January 1, 2020.
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