BILL ANALYSIS �
SB 955
Page 1
Date of Hearing: June 17, 2014
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 955 (Mitchell) - As Introduced: February 6, 2014
SUMMARY : Authorizes the interception of wire or electronic
communications initially intercepted within the territorial
jurisdiction of the court where the judge is siting, if the
judge determines, on the basis of facts submitted, that there is
probable cause to believe that an individual is committing, has
committed, or is about to commit the offense of human
trafficking, and extends the sunset date on the state's
wiretapping law until January 1, 2020
EXISTING LAW :
1)Authorizes the Attorney General (AG), chief deputy AG, chief
assistant AG, 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.)
5)Provides that the court may grant oral approval for an
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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 A G 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 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
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
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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. (Pen. Code, � 629.82, subd. (b).)
15)Provides that human trafficking is one of the offenses which
is "criminal profiteering activity" subjecting proceeds from
the activity to forfeiture proceedings. (Pen. Code, � 186.2,
subd (a)(28).)
16)Provides that any person who deprives or violates the
personal liberty of another with the intent to obtain forced
labor or services, is guilty of human trafficking and shall be
punished by imprisonment in the state prison for 5, 8, or 12
years and a fine of not more than five hundred thousand
dollars ($500,000). (Pen. Code, � 236.1, subd, (a).)
17)States that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
violation of specified sex crimes is guilty of human
trafficking and shall be punished by imprisonment in the state
prison for 8, 14, or 20 years and a fine of not more than five
hundred thousand dollars ($500,000). (Pen. Code, � 236.1,
subd, (b).)
18)Provides that any person who causes, induces, or persuades,
or attempts to cause, induce, or persuade, a person who is a
minor at the time of commission of the offense to engage in a
commercial sex act, with the intent to effect or maintain a
violation of specified sex crimes is guilty of human
trafficking. A violation of this subdivision is punishable by
imprisonment in the state prison as follows:
a) Five, 8, or 12 years and a fine of not more than five
hundred thousand dollars ($500,000); or,
b) Fifteen years to life and a fine of not more than five
hundred thousand dollars ($500,000) when the offense
involves force, fear, fraud, deceit, coercion, violence,
duress, menace, or threat of unlawful injury to the victim
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or to another person. (Pen. Code, � 236.1, subd, (c).)
19)Provides that in determining whether a minor was caused,
induced, or persuaded to engage in a commercial sex act, the
totality of the circumstances, including the age of the
victim, his or her relationship to the trafficker or agents of
the trafficker, and any handicap or disability of the victim,
shall be considered. (Pen. Code � 236.1, subd, (d).)
20)Specifies that "commercial sex act" means sexual conduct on
account of which anything of value is given or received by any
person. (Pen. Code � 236.1, subd, (h)(2).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The voters of
California and several local governments have challenged
California to better prosecute perpetrators of human
trafficking and provide assistance to victims of human
trafficking. SB 955 will mirror federal law by allowing a
court to issue a wiretap order on the basis of human
trafficking while also extending the sunset date on
California's wiretap statute until January 1, 2020.
2)Argument in Support : The Los Angeles County Board of
Supervisors states, "Existing law authorizes a judge to grant
an order for the interception of wire, oral or specified
electronic communications upon approval of a written
application submitted by the District Attorney that meets
specific statutory criteria. California's existing wiretap
law enumerates the offenses for which a wiretap may be
authorized. This list includes narcotic offenses, murder,
aggravated kidnapping, gang crimes, and attempts or
conspiracies to commit these enumerated offenses. Notably
absent from California's wiretap law is the crime of human
trafficking.
SB 955 would add human trafficking to the list of crimes that
may use wiretapping as an investigative tool. California is
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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 county 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.
3)Argument in Opposition : The American Civil Liberties Union
argues, "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 conversations of all
calls made by all persons using the telephone under
surveillance, by definition constitutes a general search -
committed not only against the person under suspicion but
against countless other callers connected with the suspect
remotely, or not at all."
4)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.
d) AB 156 (Holden) of the 2013 Legislative Session added
human trafficking to the list of crimes for which a judge
may issue an order allowing law enforcement to intercept
wire or electronic communications.
5)Pending Legislation:
a) AB 1526 (Holden) extends the sunset date on the state's
wiretapping law until January 1, 2020. AB 1526 is pending
hearing in the Senate Public Safety Committee.
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b) SB 35 (Pavley) extends the sunset date on the state's
wiretapping law until January 1, 2020. SB 35 is pending
hearing in the Assembly Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Attorney General Kamala D. Harris
California State Sheriffs' Association
County of Los Angeles
California Alliance of Child and Family Services
California Fraternal Order of Police
California Statewide Law Enforcement Coalition
California Communities United Institute
Coalition to Abolish Slavery & Trafficking
City and County of San Francisco
Los Angeles County
City of Long Beach
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Peace Officers Research Association of California
Association for Los Angeles Deputy Sheriffs
Los Angeles Probation Officers Union
Riverside Sheriffs' Association
Sacramento County Deputy Sheriffs Association
Santa Ana Police Officers Association
Urban Counties Caucus
25 Private Citizens
Opposition
American Civil Liberties Union
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744