BILL ANALYSIS �
SB 35
Page 1
SENATE THIRD READING
SB 35 (Pavley)
As Amended August 21, 2014
Majority vote
SENATE VOTE :32-0
PUBLIC SAFETY 7-0 APPROPRIATIONS 17-0
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|Ayes:|Ammiano, Melendez, |Ayes:|Gatto, Bigelow, |
| |Jones-Sawyer, Quirk, | |Bocanegra, Bradford, Ian |
| |Skinner, Stone, Waldron | |Calderon, Campos, |
| | | |Donnelly, Eggman, Gomez, |
| | | |Holden, Jones, Linder, |
| | | |Pan, Quirk, |
| | | |Ridley-Thomas, Wagner, |
| | | |Weber |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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.
2)Defines "wire communication, electronic pager communication,"
"electronic cellular communication," and "aural transfer" for
the purposes of wiretaps.
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.
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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, phencyclidine
(PCP), methamphetamine or its precursors; possession of a
destructive device, weapons of mass destruction or restricted
biological agents.
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.
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 longer than is necessary to achieve the objective
of the authorization, nor in any event longer than 30 days.
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.
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.
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.
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
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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.
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.
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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Ongoing significant state costs, potentially in the millions
of dollars, to the extent continuing current authorization for
wiretaps leads to an increase in state prison commitments.
(For example, according to the state Department of Justice
(DOJ), in California in 2012, 707 wiretaps were authorized in
16 counties, leading to 961 arrests and 58 convictions.)
2)Major ongoing non-reimbursable local and federal law
enforcement costs, more than $30 million, as a result of
continuing wiretapping authorization, according to counties
reporting to DOJ in 2012.
3)Potential ongoing state law enforcement costs to DOJ for its
wiretapping efforts, though DOJ did not note any state
wiretaps in its statutory electronic interceptions report.
4)Minor costs to DOJ, less than $50,000, for its detailed annual
report.
COMMENTS : According to the author, "Our state's wiretap law,
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which includes both telephone and electronic technologies, has
been a successful 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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744
FN: 0005177