BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
9
5
5
SB 955 (Mitchell)
As Introduced: February 6, 2014
Hearing date: April 8, 2014
Penal Code
MK:sl
INTERCEPTION OF COMMUNICATIONS
HISTORY
Source: County of Los Angeles
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: California Alliance of Child and Family Services;
California Police Chiefs Association; California State
Sheriffs' Association; City and County of San
Francisco; Los Angeles District Attorney; Urban
Counties Caucus;
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice
(More)
SB 955 (Mitchell)
PageB
KEY ISSUE
SHOULD "HUMAN TRAFFICKING" BE ADDED TO THE CRIMES FOR WHICH AN
INTERCEPTION ORDER MAY BE SOUGHT?
PURPOSE
The purpose of this bill is to add "human trafficking" to the
crimes for which an interception order may be sought.
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 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. (Penal Code �
629.56.)
Existing law 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. (Penal
Code �629.58.)
Existing law requires that written reports showing what progress
has been made toward the achievement of the authorized
objective, including the number of intercepted communications,
(More)
SB 955 (Mitchell)
PageC
be submitted at least every 10 days to the judge who issued the
order allowing the interception. (Penal Code � 629.60.)
Existing law requires the Attorney General 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.
(Penal Code � 629.62.)
Existing law 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. (Penal Code � 629.66.)
Existing law 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. (Penal Code � 629.70.)
Existing law 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. (Penal Code � 629.72.)
Existing law provides that the Attorney General, any deputy
attorney general, 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 communication or evidence
derived therefrom, may disclose the contents to one of the
(More)
SB 955 (Mitchell)
PageD
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
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.. (Penal Code � 629.74.)
Existing law 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 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. (Penal
Code � 629.82 (b).)
Existing law 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. (Penal Code � 629.52.)
This bill adds "human trafficking" to the crimes for which an
interception order may be sought.
(More)
SB 955 (Mitchell)
PageE
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.
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
(More)
SB 955 (Mitchell)
PageF
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% 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 % inmate 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% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 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."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014; the
state reported that as of February 12, 2014, California's 33
(More)
SB 955 (Mitchell)
PageG
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
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 the bill
According to the author:
Penal Code section 629.52(a) enumerates the offenses
for which a wiretap may be authorized. This list
includes certain narcotic offenses, murder, aggravated
kidnapping, any felony violation of Penal Code section
186.22, and attempts or conspiracies to commit these
enumerated offenses.
Notably absent from Penal Code section 629.52(a) is
Penal Code section 236.1 et seq., human trafficking.
(More)
SB 955 (Mitchell)
PageH
Proposition 35, overwhelming passed by 81% of the
voters in 2012, resulted in increased prison terms for
human traffickers, now requires convicted sex
traffickers to register as sex offenders, and mandates
law enforcement training on human trafficking.<1>
Human trafficking is a form of modern-day slavery. It
is a crime that involves the use of force, fraud, or
coercion to recruit, harbor, transport, provide or
obtain a person for the purposes of sexual or labor
exploitation. Victims of human trafficking are young
children, teenagers, men, and women. Approximately
800,000 victims annually are trafficked across
international borders worldwide, and between 14,500 and
17,500 of those victims are trafficked into the United
States according to the U.S. Department of State.
After drug dealing, trafficking humans is tied with
arms dealing as the second largest criminal industry in
the world, and is the fastest growing.<2>
According to the Governor's Office of Emergency Services:
"It is estimated that California is amongst the top
three states in the nation for human trafficking. By
its very nature, human trafficking, in all of its
forms, is largely hidden from view. This is due in
part to the large immigrant communities, within
California, which provide for good concealment of a
trafficking operation - in many cases, these persons
can be hidden in plain sight. Many of these
communities are not trusting of law enforcement and
tend to maintain cultural norms - some which dictate
maintaining silence in the face of illegal
enterprise.
The state's extensive international border, its major
harbors and airports, its powerful economy and
----------------------
<1> A provision that requires all registered sex offenders to
disclose their internet accounts has been stayed by a federal
judge as part of a temporary restraining order.
<2> www.cdss.ca.gov/refugeeprogram/PG1268.htm
(More)
SB 955 (Mitchell)
PageI
accelerating population, its large immigrant
population and its industries make it a prime target
for traffickers. Apart from the harm that this crime
causes its victims, the infrastructure that is
necessary to support this heinous crime can serve the
needs of terrorist wishing to smuggle themselves
and/or dangerous weapons into the country."
Los Angeles is one of the top three points of entry
into this country for victims of slavery and
trafficking. This trafficking route occurs in a
triangle from Los Angeles, California to Las Vegas,
Nevada, and back to Sacramento, California.
Immigration agents estimate that 10,000 women are
being held in Los Angeles' underground brothels; this
does not include the thousands of victims in domestic
work, sweatshops or other informal industries.<3>
Like drug trafficking organizations (DTOs), human
trafficking organizations are resistant to
conventional law enforcement techniques. They are
difficult to infiltrate and involve uncooperative
"users." The victims of human trafficking are
frequently runaway minors who have been forced into
prostitution by their pimps.
The interception of wire and electronic
communications (cell phones, text messages, etc.)
comprises the ideal tool to investigate, infiltrate,
dismantle, and prosecute human trafficking
organizations. The ubiquity of cell phones in
virtually all sophisticated criminal enterprises
cannot be understated. There is no more powerful and
irrefutable evidence that can be presented in court
than the very words of the defendant describing his
or her involvement in the charged crime. Every
effort should be made to enable the prosecution of
the pimps without forcing their victims to testify.
California's wiretap statutes are based on the
----------------------
<3> www.weaveinc.org/post/facts-about-human-trafficking
(More)
SB 955 (Mitchell)
PageJ
federal wiretap statutes, which are contained in
Title 18 of the United States Code, sections
2510-2522. The list of crimes for which a federal
wiretap may be obtained is far more expansive than
California's, and includes sex trafficking of
children, sexual exploitation of children, and
selling or buying of children.
The voters of California through Proposition 35 and
the California Legislature through the passage of
numerous pieces of legislation to investigate and
prosecute perpetrators of human trafficking and
provide assistance to the victims of human
trafficking have demonstrated the intent to combat
all forms of human trafficking in California.
In order to continue to crack down on the scourge of
human trafficking, SB 955 provides law enforcment
with access to one of the most powerful investigatory
tools available to California law enforcment.
2. Federal Wiretapping Law
a. The Fourth Amendment Protects Telephone
Communications
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
(More)
SB 955 (Mitchell)
PageK
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.
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?
3. Wire or Electronic Communication
Under existing law, the Attorney General or a district attorney
may make an application to a judge of the superior court for an
application authorizing the interception of a wire, electronic
pager or electronic cellular telephone. The law regulates the
issuance, duration and monitoring of these orders and imposes
safeguards to protect the public from unreasonable
(More)
SB 955 (Mitchell)
PageL
interceptions. The law also limits which crimes for which an
interception may be sought to the following:
Importation, possession for sale, transportation or sale
of controlled substances;
Murder or solicitation of murder or commission of a
felony involving a destructive device;
A felony in violation of prohibitions on criminal street
gangs;
Possession or use of a weapon of mass destruction; and,
An attempt or conspiracy to commit any of the above.
4. Human Trafficking
This bill would add human trafficking to the crimes for which an
interception (wiretap) may be sought. According to the sponsor:
SB 995 would add human trafficking to the list of
crimes that may use wiretapping as an investigative
tool. California is one of the top three states in the
nation for human trafficking, and Los Angeles County is
one of the top three points of entry into this country
for victims of slavery and trafficking. California's
extensive international border, its major harbors and
airports, its powerful economy and accelerating
population, make it a prime target for traffickers. By
its nature, human trafficking in all of its forms is
largely hidden from view and causes untold harm to
victims.
After drug trafficking, human trafficking is tied with
arms dealing as the second largest criminal industry in
the world and is expanding. Like drug trafficking
organizations, human trafficking organizations are
highly resistant to conventional law enforcement
techniques and difficult to infiltrate. Victims of
human trafficking are frequently uncooperative or they
refuse to testify in court amidst fear of reprisal from
their traffickers.
SB 955 is a critical tool to allow law enforcement to
(More)
SB 955 (Mitchell)
PageM
gather evidence from electronic communications used by
traffickers. Communications collected through a
wiretap can be one of the most powerful and irrefutable
pieces of evidence that can be presented in court and
can often mitigate the need for victims to testify.
SHOULD HUMAN TRAFFICKING BE ADDED TO THE LIST OF CRIMES FOR
WHICH A WIRETAP MAY BE SOUGHT?
5. Sunset
This bill extends the sunset on the wiretap provisions to
January 1, 2020.
6. Support
The California State Sheriffs' Association supports this bill
stating:
Given the serious nature of human trafficking and its
recent growth in California, it makes sense to allow
law enforcement to use this highly effective tool to
prevent and stop it. The bill would retain judicial
authority over wiretap requests and make a modest yet
meaningful expansion of this important statute.
7. Opposition
The ACLU opposes this bill stating:
The ACLU has consistently opposed expansion of the
state's wiretap law. Our objections are based on the
fact that wiretapping violates basic privacy rights. A
wiretap, because it picks up both sides of all
communications made by all persons using wire or
electronic communications under surveillance, by
definition constitutes a general search - committed not
only against the person under suspicion but against
countless other persons connected with the suspect only
remotely or not at all.
According to the 2012 U.S. Department of Justice
(More)
SB 955 (Mitchell)
PageN
Report, there were 719 reported applications by
California law enforcement officials for wiretaps in
California in 2012, resulting in interceptions of
nearly 55,000 communications, the vast majority of them
innocent conversations. Most of these intercepts were
used in narcotics investigations. The reported cost to
taxpayers for these wiretaps in 2012 was over
$31,000,000. Expanding the authority of state
officials to obtain wiretaps for human trafficking
crimes - which was recently expanded to include even
one instance of seeking to engage in commercial sex act
with a minor (Penal Code 236.1 (c)) - will only further
exacerbate these statistics and intrusions into privacy
rights.
(More)
8. Suggested Amendments
In addition to their opposition the ACLU would like to see
amendments in the bill to guarantee that the probable cause used
by law enforcement to get a wiretap does not come from
information that was gained without a warrant.
Additionally, we urge amendments to assure that state law
enforcement officials are not using facts to obtain wiretap
orders based on electronic data received from federal
authorities - such as the National Security Agency - that
were not obtained without a proper warrant. We suggest the
following amendment to Penal Code 629.52.
e) A probable cause finding under this section cannot be
based on facts provided by or obtained from any federal
agency, agent, or corporation that was gathered through
access to nonpublic electronic communications not based on
a warrant that particularly describes the person, place,
and thing to be searched or seized or on consent by one of
the parties to the communication.
For purposes of this subsection, "electronic
communications" means any transfer of signs, signals,
writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire,
radio, electromagnetic, photo electronic or photo
optical system. For purposes of this provision, the
term "electronic communications" is not limited to
communication between two or more persons but includes
accessing static, automated, or computerized materials
such as web sites, files, or databases, or the
conducting of financial transactions.
SHOULD THE WIRETAP SECTION BE AMENDED TO PROVIDE THAT
INFORMATION GAINED THROUGH NONPUBLIC ELECTRONIC COMMUNICATION
NOT BASED ON A WARRANT SHOULD NOT BE THE BASIS OF THE PROBABLE
CAUSE FOR A WIRETAP IN CALIFORNIA?
Both federal and California law require that each wiretap
application include "a full and complete statement as to whether
(More)
SB 955 (Mitchell)
PageP
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.)
9. 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.
***************