BILL ANALYSIS �
SB 35
Page 1
Date of Hearing: June 10, 2014
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 35 (Pavley) - As Amended: January 6, 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.)
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5)Provides that the court may grant oral approval for an
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 AG 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.)
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11)Provides that a defendant shall be notified that he or she
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 AG, 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
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used except to prevent the commission of a crime. No evidence
derived from the wiretap can be used unless the officers can
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 wiretaps sunsets on
January 1, 2012. (Pen. Code, � 629.98.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author. "Our state's
wiretap law, which includes both telephone and electronic
technologies, has been a successfull tool in solving the most
serious and difficult crimes in California. It is used as an
investigatory tool of last resort for only the most serious
crimes.
"In the last three years (2011- 2013), wiretap investigations
involving drug trafficking have led to the seizure of over $90
million in narcotics and narcotic proceeds in Los Angeles
County alone.
"Our state's program is one of the most stringent in the country
and contains strong constitutional safeguards. Moreover, any
wiretapping that violates the privacy protections of
California' law is punishable as a felony. Given the
sophistication of many criminal operations today, our wiretap
program merits continuation."
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.)
Prior to the enactment of Pen. Code, � 629.50 et seq.,
wiretapping statutes did not permit the interception of oral
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or electronic communications and permitted wiretapping only
during the investigation of specified offenses involving
controlled substances.
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.
4)Pending Legislation :
a) AB 1526 (Holden) is identical to this bill, and would
extend the sunset on California's wiretap law until January
1, 2020. AB 1526 is pending referral in the Senate Rules
Committee.
b) SB 955 (Mitchell) extends the sunset on California's
wiretap law until January 1, 2020, and adds human
trafficking to the list of offenses for which law
enforcement may apply for a court ordered intercept of a
communication. SB 955 is scheduled for hearing in this
Committee on June 17, 2014.
REGISTERED SUPPORT / OPPOSITION :
Support
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Los Angeles County District Attorney's Office (Sponsor
San Diego County District Attorney's Office
California State Sheriff's Association
California District Attorneys Association
California Police Chiefs Association
California Narcotics Officers Association
Peace Officers Research Association of California
Los Angeles County Probation Officers Union
Association for Los Angeles Deputy Sheriffs
Riverside Sheriffs' Association
Los Angeles Police Protective League
Opposition
None
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744