BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
SB 35 (Pavley) - Electronic interceptions: authorization.
Amended: January 6, 2014 Policy Vote: Public Safety 6-0
Urgency: No Mandate: Yes
Hearing Date: January 23, 2014
Consultant: Jolie Onodera
SUSPENSE FILE.
Bill Summary: SB 35 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Background: State wiretap law was originally enacted in 1989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
SB 35 (Pavley)
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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
SB 35 (Pavley)
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governing electronic interceptions from January 1, 2015, to
January 1, 2020.
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 under SB 35 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 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.