Existing law, until January 1, 2020, requires an application for an order authorizing the interception of wire or electronic communications to be made in writing upon the personal oath or affirmation of the Attorney General, Chief Deputy Attorney General, or Chief Assistant Attorney General, Criminal Law Division, or of a district attorney or person designated to act as district attorney. Until January 1, 2020, existing law authorizes a court to issue an order authorizing interception of wire or electronic communications if the judge finds, among other things, that there is probable cause to believe an individual is committing, has committed, or is about to commit one of several offenses, including importing, possessing for sale, transporting, manufacturing, or selling certain controlled substances, as specified.

This bill would add fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered pursuant to those provisions.

Existing law, until January 1, 2020, requires an application for an order authorizing the interception of wire or electronic communications to be made in writing upon the personal oath or affirmation of the Attorney General, Chief Deputy Attorney General, or Chief Assistant Attorney General, Criminal Law Division, or of a district attorney or person designated to act as district attorney. Until January 1, 2020, existing law authorizes a court to issue an order authorizing interception of wire or electronic communications if the judge finds, among other things, that there is probable cause to believe an individual is committing, has committed, or is about to commit one of several offenses, including importing, possessing for sale, transporting, manufacturing, or selling certain controlled substances, as specified.

This bill would add fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered pursuant to those provisions.

Existing law, until January 1, 2020, requires an application for an order authorizing the interception of wire or electronic communications to be made in writing upon the personal oath or affirmation of the Attorney General, Chief Deputy Attorney General, or Chief Assistant Attorney General, Criminal Law Division, or of a district attorney or person designated to act as district attorney. Until January 1, 2020, existing law authorizes a court to issue an order authorizing interception of wire or electronic communications if the judge finds, among other things, that there is probable cause to believe an individual is committing, has committed, or is about to commit one of several offenses, including importing, possessing for sale, transporting, manufacturing, or selling certain controlled substances, as specified.

This bill would add fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered pursuant to those provisions.

Existing law, until January 1, 2020, requires an application for an order authorizing the interception of wire or electronic communications to be made in writing upon the personal oath or affirmation of the Attorney General, Chief Deputy Attorney General, or Chief Assistant Attorney General, Criminal Law Division, or of a district attorney or person designated to act as district attorney. Until January 1, 2020, existing law authorizes a court to issue an order authorizing interception of wire or electronic communications if the judge finds, among other things, that there is probable cause to believe an individual is committing, has committed, or is about to commit one of several offenses, including importing, possessing for sale, transporting, manufacturing, or selling certain controlled substances, as specified.

This bill would add fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered pursuant to those provisions.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1948

Author:(Jones-Sawyer)

As Amended Ver:August 17, 2018

Majority vote

Original Committee Reference: PUB. S.

SUMMARY: Adds fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered.

The Senate amendment makes a non-substantive change.

EXISTING LAW:

1. Specifies that fentanyl is a Schedule II controlled substance.
2. Prohibits possession for sale or purchase for sale of fentanyl, and provides for imprisonment in a county jail for two, three, or four years for a violation of this provision.
3. Prohibits transporting, importing into this state, selling, furnishing, administering, or giving away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport fentanyl, and provides for imprisonment in a county jail for three, four, or five years for a violation of this provision.
4. Prohibits manufacturing, compounding, converting, producing, deriving, processing, or preparing, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, fentanyl, and provides for imprisonment in a county jail for 3, 5 or 7 years and by a fine not exceeding $50,000.
5. Specifies the offenses for which an interception order may be issued, including import, possession for sale, transport, manufacture, or sale of a substance containing more than 10 gallons of liquid or three pounds of solid heroin, cocaine, phencyclidine (PCP), methamphetamine, or their precursors or analogs.
6. Defines ''wire communication'' as the transmission of communications by wire, cable, or other connection between the point of origin and point of reception.
7. Defines ''electronic communication'' as the transfer of data, images, sounds, writings, signals, and intelligence of any nature by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
8. Specifies that the interception of wire or electronic communications does not apply to stored communications or stored content.
9. Requires an investigative or law enforcement officer to apply to the presiding superior court judge for an order authorizing the interception of wire or electronic communications.
10. Requires that the application include a statement of facts and circumstances, including the offense that is being, has been, or is about to be committed, the place where the communication is to be intercepted, that conventional investigative techniques are unlikely to succeed, the type of communication that is to be intercepted, the identity, if known, of the person whose communications are to be intercepted, and a statement of the period of time for which the interception is required to be maintained.
11. Allows a presiding superior court judge, or judge designated by the presiding judge, upon application, to issue an order authorizing interception of wire or electronic communications when there is probable cause to believe that a specified offense is being, has been, or is about to be committed.
12. Provides that no order shall authorize the interception of a wire or electronic communication for a period longer than necessary to achieve the objective of the authorization, nor longer than 30 days.

AS PASSED BY THE ASSEMBLY, this bill allowed a judge to issue an order authorizing the interception of wire or electronic communications where there is probable cause to believe that an individual is committing, has committed, or is about to commit a specified offense related to importing, possessing for sale transporting, manufacturing, or selling fentanyl.

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. State prison: Unknown, potential increase in state costs for new or longer commitments to state prison for persons found guilty of fentanyl commerce crimes that otherwise would not have led to a conviction absent the wiretap. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. (General Fund)
2. Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who were arrested and charged based on evidence collected from a fentanyl-related wire/electronic communication interception. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. (General Fund*)
3. Local Law Enforcement: Unknown, potentially-significant non-reimbursable costs as a result of performing electronic communication interception for fentanyl commerce crimes. According to self-reported data, personnel and resources costs from the counties reported to DOJ for all wiretap operations in 2017 was approximately $32.4 million. (Local funds)
4. DOJ: Minor and absorbable costs to compile data and include fentanyl-related wiretaps in the department’s annual report.

*Trial Court Trust Fund

COMMENTS: According to the author, ''In March of 2015 the Drug Enforcement Administration issued a nationwide alert on fentanyl as a threat to health and public safety. Law enforcement authorities are seeing an increase in fentanyl drug trafficking because of its extreme profitability. As the Chairman of the Assembly Public Safety Committee it is my duty to keep Californians safe and protect them from the drug traffickers who are illegally transporting, manufacturing, and selling this fatal drug in our neighborhoods.''

Analysis Prepared by: Liah Burnley / PUB. S. / (916) 319-3744 FN: 0004492

 THIRD READING  

Bill No: AB 1948

Author: , et al.

Amended: 8/17/18 in Senate

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/19/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/16/18

AYES: Portantino, Bates, Beall, Bradford, Hill, Nielsen, Wiener

ASSEMBLY FLOOR: 77-1, 5/29/18 - See last page for vote

SUBJECT:

SOURCE: Los Angeles District Attorney’s Office

DIGEST:

This bill adds fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered.

ANALYSIS:

Existing law:

1. 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.)
2. 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.)
3. 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.)
4. 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 10 days to the judge who issued the order allowing the interception. (Penal Code § 629.60.)
5. 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.)
6. 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.)
7. 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.)
8. 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.)
9. 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 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.)
10. 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).)
11. 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, restricted biological agents or human trafficking. (Penal Code § 629.52.)
12. Specifies that fentanyl is a Schedule II controlled substance. (Health & Safety Code, § 11055 (c)(8).)
13. Prohibits possession for sale or purchase for sale of fentanyl, and provides for imprisonment in a county jail for two, three, or four years for a violation of this provision. (Health & Safety Code § 11351.)
14. Prohibits transporting, importing into this state, selling, furnishing, administering, or giving away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport fentanyl, and provides for imprisonment in a county jail for three, four, or five years for a violation of this provision. (Health & Safety Code § 11352.)
15. Prohibits manufacturing, compounding, converting, producing, deriving, processing, or preparing, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, fentanyl, and provides for imprisonment in a county jail for 3, 5 or 7 years and by a fine not exceeding $50,000. (Health & Safety Code § 11379.6.)

This bill adds fentanyl to the narcotics for which an interception order may be made when there is probably cause to believe a person has committed the offense of importing, possessing for sale, transporting or manufacturing the narcotic.

Background

According to the sponsor, the Los Angeles District Attorney’s Office:

…Because of the high demand and profitability of fentanyl California has seen a dramatic increase in fentanyl seizures by law enforcement. According to the DEA, 48 kilograms of fentanyl were seized in California in 2015. In 2016, 244 kilograms were seized. As of June 2017, 104 kilograms have been seized in California. Most alarming, there were only 8 law enforcement (state and federal) seizures of fentanyl in California in 2015; by 2016, the number of seizures increased to 37. As of June 2017, there have been 46 seizures of fentanyl.

Unfortunately, one of the most successful tools law enforcement has to tackle a problem like the one fentanyl poses is the use of wiretaps. Penal Code section 692.52 (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 [gangs], human trafficking, and attempts or conspiracies to commit these enumerated offenses.

In particular, Penal Code section 692.52(a)(1) lists heroin, cocaine, PCP, methamphetamine, or their precursors or analogs where the substance exceeds 10 gallons by liquid volume or three pounds of solid substance by weight.

Absent form Penal Code section 629.52(a)(1) is fentanyl, which is 50 to 100 times more potent than morphine. In comparison, heroin is roughly twice as potent as morphine. Overdosing on fentanyl is relatively easy, especially for heroin users who may underestimate fentanyl’s potency.

AB 1948 amends California’s wiretap statute to add fentanyl to the list of enumerated controlled substances.

The interception of wire and electronic communications (cell phones, text messages, etc.) compromises the ideal tool to investigate, infiltrate, dismantle, and prosecute drug trafficking organizations. The ubiquity of cell phones in virtually all sophisticated criminal enterprises cannot be understated. The ubiquity of cell phones in virtually all sophisticated criminal enterprises cannot be understated. There is not 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.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• State prison: Unknown, potential increase in state costs for new or longer commitments to state prison for persons found guilty of fentanyl commerce crimes that otherwise would not have led to a conviction absent the wiretap. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. (General Fund)
• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who were arrested and charged based on evidence collected from a fentanyl-related wire/electronic communication interception. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. (General Fund*)
• Local Law Enforcement: Unknown, potentially-significant non-reimbursable costs as a result of performing electronic communication interception for fentanyl commerce crimes. According to self-reported data, personnel and resources costs from the counties reported to DOJ for all wiretap operations in 2017 was approximately $32.4 million. (Local funds)
• DOJ: Minor and absorbable costs to compile data and include fentanyl-related wiretaps in the department’s annual report.

*Trial Court Trust Fund

SUPPORT: (Verified 8/16/18)

Los Angeles District Attorney’s Office (source)

California Association of Code Enforcement Officers

California College and University Police Chiefs

California Correctional Supervisors Organization

California District Attorneys Association

California Narcotic Officers Association

California State Sheriffs’ Association

California Statewide Law Enforcement Association

Los Angeles County Professional Peace Officers Association

Los Angeles County Sheriff’s Department

Riverside Sheriffs’ Association

Peace Officers Research Association of California

San Diego County District Attorney

OPPOSITION: (Verified 8/16/18)

None received

ASSEMBLY FLOOR: 77-1, 5/29/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NOES: Kamlager-Dove

Prepared by: Mary Kennedy / PUB. S. /

8/20/18 9:15:27

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 1948 (Jones-Sawyer) - Interception of electronic communications

Bill Summary:

AB 1948 would add fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 16, 2018

Fiscal Impact:

• State prison: Unknown, potential increase in state costs for new or longer commitments to state prison for persons found guilty of fentanyl commerce crimes that otherwise would not have led to a conviction absent the wiretap. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. (General Fund)

• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who were arrested and charged based on evidence collected from a fentanyl-related wire/electronic communication interception. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. (General Fund*)
• Local Law Enforcement: Unknown, potentially-significant non-reimbursable costs as a result of performing electronic communication interception for fentanyl commerce crimes. According to self-reported data, personnel and resources costs from the counties reported to DOJ for all wiretap operations in 2017 was approximately $32.4 million. (Local funds)
• Department of Justice (DOJ): Minor and absorbable costs to compile data and include fentanyl-related wiretaps in the department’s annual report.

*Trial Court Trust Fund

Author Amendments:

Add a coauthor.

-- END --

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 1948 (Jones-Sawyer) - Interception of electronic communications

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 1948 would add fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered.

Fiscal Impact:

• State prison: Unknown, potential increase in state costs for new or longer commitments to state prison for persons found guilty of fentanyl commerce crimes that otherwise would not have led to a conviction absent the wiretap. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. (General Fund)

• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who were arrested and charged based on evidence collected from a fentanyl-related wire/electronic communication interception. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. (General Fund*)
• Local Law Enforcement: Unknown, potentially-significant non-reimbursable costs as a result of performing electronic communication interception for fentanyl commerce crimes. According to self-reported data, personnel and resources costs from the counties reported to DOJ for all wiretap operations in 2017 was approximately $32.4 million. (Local funds)
• Department of Justice (DOJ): Minor and absorbable costs to compile data and include fentanyl-related wiretaps in the department’s annual report.

*Trial Court Trust Fund

Background:

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 interceptions. The crimes for which an interception may be sought are limited to the following:

• Importation, possession for sale, transportation or sale of specified controlled substances.
• Murder, solicitation of murder, or the 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 or biological agents.
• A violation of human trafficking.
• An attempt or conspiracy to commit any of the above.

In order to obtain intercept authority, law enforcement already must be investigating specific criminal activity, with electronic interceptions to be used after all other normal investigative procedures have been exhausted.

Proposed Law:

This bill would allow a court to issue an order authorizing the interception of wire or electronic communications where there is probable cause to believe that an individual is committing, has committed, or is about to commit a specified offense related to importing, possessing for sale transporting, manufacturing, or selling fentanyl.

Related Legislation:

SB 955 (Mitchell, Ch. 712, Stats. 2014) added human trafficking to the list of crimes for which the court may allow the interception of wire or electronic communications.

Staff Comments:

According to the most-recently release annual report to the Legislature, the California Electronic Interceptions Report, DOJ reports that there were 615 electronic/wire interception applications made to the court across the state in 2017, with a total of 729 arrests associated with approved requests, and 84 convictions. Almost half of the arrests were related to drug wiretaps. The report notes that any disparity between the numbers of people arrested and convicted could be because some arrests are pending either changes or trial, which could take time to adjudicate, or are a part of a large-scale ongoing investigation.

California is subject to a federal court order to reduce its in-state adult institution population to 137.5 percent of design capacity.  The state has undertaken efforts to implement a durable remedy to reduce and avoid prison overcrowding.  On June 6, 2018, 114,881 inmates were housed in the state’s thirty-five adult institutions, 6,336 were housed in in-state contract beds, and 3,014 inmates were housed in out-of-state facilities.  The prison population changes daily as new inmates are admitted and others are released, but, on that date, the state’s prison population was approximately 135.0 percent of design capacity.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 1948 Hearing Date: June 19, 2018

Subject: Interception of Electronic Communication

HISTORY

Source: Los Angeles District Attorney’s Office

Prior Legislation: SB 955 (Mitchell) Chapter 712, Stats. 2014

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 Association of Code Enforcement Officers; California College and University Police Chiefs; California Correctional Supervisors Organization; California District Attorneys Association; California Narcotic Officers Association; California State Sheriffs’ Association; California Statewide Law Enforcement Association; Los Angeles County Professional Peace Officers Association; Los Angeles County Sheriff’s Department; Riverside Sheriffs’ Association

Opposition: None known

Assembly Floor Vote: 77 - 1

PURPOSE

The purpose of this bill is to add fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered.

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, 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 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, restricted biological agents or human trafficking. (Penal Code § 629.52.)

Existing law specifies that fentanyl is a Schedule II controlled substance. (Health & Safety Code, § 11055 (c)(8).)

Existing law prohibits possession for sale or purchase for sale of fentanyl, and provides for imprisonment in a county jail for two, three, or four years for a violation of this provision. (Health & Safety Code § 11351.)

Existing law prohibits transporting, importing into this state, selling, furnishing, administering, or giving away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport fentanyl, and provides for imprisonment in a county jail for three, four, or five years for a violation of this provision. (Health & Safety Code § 11352.)

Existing law prohibits manufacturing, compounding, converting, producing, deriving, processing, or preparing, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, fentanyl, and provides for imprisonment in a county jail for 3, 5 or 7 years and by a fine not exceeding $50,000. (Health & Safety Code § 11379.6.)

This bill adds fentanyl to the narcotics for which an interception order may be made when there is probably cause to believe a person has committed the offense of importing, possessing for sale, transporting or manufacturing the narcotic.

COMMENTS

1. Need for This Bill

According to the sponsor the Los Angeles District Attorney’s Office:

…Because of the high demand and profitability of fentanyl California has seen a dramatic increase in fentanyl seizures by law enforcement. According to the DEA, 48 kilograms of fentanyl were seized in California in 2015. In 2016, 244 kilograms were seized. As of June 2017, 104 kilograms have been seized in California. Most alarming, there were only 8 law enforcement (state and federal) seizures of fentanyl in California in 2015; by 2016, the number of seizures increased to 37. As of June 2017, there have been 46 seizures of fentanyl.

Unfortunately, one of the most successful tools law enforcement has to tackle a problem like the one fentanyl poses is the use of wiretaps. Penal Code section 692.52 (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 [gangs], human trafficking, and attempts or conspiracies to commit these enumerated offenses.

In particular, Penal Code section 692.52(a)(1) lists heroin, cocaine, PCP, methamphetamine, or their precursors or analogs where the substance exceeds 10 gallons by liquid volume or three pounds of solid substance by weight.

Absent form Penal Code section 629.52(a)(1) is fentanyl, which is 50 to 100 times more potent than morphine. In comparison, heroin is roughly twice as potent as morphine. Overdosing on fentanyl is relatively easy, especially for heroin users who may underestimate fentanyl’s potency.

AB 1948 amends California’s wiretap statute to add fentanyl to the list of enumerated controlled substances.

The interception of wire and electronic communications (cell phones, text messages, etc.) compromises the ideal tool to investigate, infiltrate, dismantle, and prosecute drug trafficking organizations. The ubiquity of cell phones in virtually all sophisticated criminal enterprises cannot be understated. The ubiquity of cell phones in virtually all sophisticated criminal enterprises cannot be understated. There is not 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.

2. Federal Wiretapping Law

1. 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 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 interceptions. The law also limits which crimes for which an interception may be sought to the following:

1. Importation, possession for sale, transportation or sale of controlled substances;
2. Murder or solicitation of murder or commission of a felony involving a destructive device;
3. A felony in violation of prohibitions on criminal street gangs;
4. Possession or use of a weapon of mass destruction;
5. A violation of human trafficking and,
6. An attempt or conspiracy to commit any of the above.

4. Addition of fentanyl to wiretap provisions

This bill would add fentanyl to the crimes for which an interception (wiretap) may be sought.

The Drug Enforcement Administration (DEA) publishes an annual illicit drug “threat assessment.” The assessment reviews trends and issues concerning major drugs of abuse. The 2017 Threat Assessment stated as to fentanyl:

“Illicit fentanyl and other synthetic opioids — primarily sourced from China and Mexico and shipped directly to the United States or trafficked overland via Mexico and Canada — are contributing factors in the current synthetic opioid overdose epidemic. Traffickers in the United States usually mix fentanyl into heroin products and sometimes other illicit drugs, or press it into counterfeit prescription pills, often without users’ awareness, which leads to overdose incidents…

“In CY 2016, law enforcement agencies across the United States seized a record high 287 kilograms of fentanyl; a 72 percent increase from the 167 kilograms seized in 2015.” (https://www.dea.gov/docs/DIR-040-17_2017-NDTA.pdf)

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 1948

Author:(Jones-Sawyer)

As Introduced Ver:January 29, 2018

Majority vote

SUMMARY: Adds fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered. Specifically, this bill: allows a judge to issue an order authorizing the interception of wire or electronic communications where there is probable cause to believe that an individual is committing, has committed, or is about to commit a specified offense related to importing, possessing for sale transporting, manufacturing, or selling fentanyl.

EXISTING LAW:

1. Specifies that fentanyl is a Schedule II controlled substance.
2. Prohibits possession for sale or purchase for sale of fentanyl, and provides for imprisonment in a county jail for two, three, or four years for a violation of this provision.
3. Prohibits transporting, importing into this state, selling, furnishing, administering, or giving away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport fentanyl, and provides for imprisonment in a county jail for three, four, or five years for a violation of this provision.
4. Prohibits manufacturing, compounding, converting, producing, deriving, processing, or preparing, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, fentanyl, and provides for imprisonment in a county jail for 3, 5 or 7 years and by a fine not exceeding $50,000.
5. Specifies the offenses for which an interception order may be issued, including import, possession for sale, transport, manufacture, or sale of a substance containing more than 10 gallons of liquid or three pounds of solid heroin, cocaine, phencyclidine (PCP), methamphetamine, or their precursors or analogs.
6. Defines ''wire communication'' as the transmission of communications by wire, cable, or other connection between the point of origin and point of reception.
7. Defines ''electronic communication'' as the transfer of data, images, sounds, writings, signals, and intelligence of any nature by a wire, radio, electromagnetic, photoelectric, or photo-optical system.
8. Specifies that the interception of wire or electronic communications does not apply to stored communications or stored content.
9. Requires an investigative or law enforcement officer to apply to the presiding superior court judge for an order authorizing the interception of wire or electronic communications.
10. Requires that the application include a statement of facts and circumstances, including the offense that is being, has been, or is about to be committed, the place where the communication is to be intercepted, that conventional investigative techniques are unlikely to succeed, the type of communication that is to be intercepted, the identity, if known, of the person whose communications are to be intercepted, and a statement of the period of time for which the interception is required to be maintained.
11. Allows a presiding superior court judge, or judge designated by the presiding judge, upon application, to issue an order authorizing interception of wire or electronic communications when there is probable cause to believe that a specified offense is being, has been, or is about to be committed.
12. Provides that no order shall authorize the interception of a wire or electronic communication for a period longer than necessary to achieve the objective of the authorization, nor longer than 30 days.

FISCAL EFFECT: According to the Assembly Appropriations Committee, General Fund (GF) costs for the Department of Justice (DOJ) to handle increased workload and increased volume of communications interceptions. Specifically, DOJ reports $661,000 of costs in the first year and $311,000 costs in the second year and ongoing for one additional staff person, computer hardware (such as servers and storage), and intercept software.

COMMENTS:

1. Author's Statement: According to the author, ''In March of 2015 the Drug Enforcement Administration issued a nationwide alert on fentanyl as a threat to health and public safety. Law enforcement authorities are seeing an increase in fentanyl drug trafficking because of its extreme profitability. As the Chairman of the Assembly Public Safety Committee it is my duty to keep Californians safe and protect them from the drug traffickers who are illegally transporting, manufacturing, and selling this fatal drug in our neighborhoods.''
2. Fentanyl: Fentanyl was synthesized in the 1960s and has been used medically since 1968. The Centers for Disease Control and Prevention (CDC) website provides this description of fentanyl:

Fentanyl is a member of the class of drugs known as fentanyls, rapid-acting opioid (synthetic opiate) drugs that alleviate pain without causing loss of consciousness (analgesic). Fentanyl depresses central nervous system (CNS) and respiratory function. Exposure to fentanyl may be fatal. Fentanyl is estimated to be 80 times as potent as morphine and hundreds of times more potent than heroin. It is a drug of abuse. Fentanyl (and other opioids) could possibly be used as an incapacitating agent to impair a person's ability to function. In October 2002, the Russian military reportedly used "a fentanyl derivative" against terrorists holding hostages in a Moscow theater; 127 of the hostages died. (It is unclear whether the gas used also included other chemical agent(s).) Fentanyl is odorless.

The Drug Enforcement Administration (DEA) publishes an annual illicit drug "threat assessment." The assessment reviews trends and issues concerning major drugs of abuse. The 2017 Threat Assessment stated as to fentanyl:

''Illicit fentanyl and other synthetic opioids — primarily sourced from China and Mexico and shipped directly to the United States or trafficked overland via Mexico and Canada — are contributing factors in the current synthetic opioid overdose epidemic. Traffickers in the United States usually mix fentanyl into heroin products and sometimes other illicit drugs, or press it into counterfeit prescription pills, often without users' awareness, which leads to overdose incidents…

''In CY [Calendar Year] 2016, law enforcement agencies across the United States seized a record high 287 kilograms of fentanyl; a 72% increase from the 167 kilograms seized in 2015.''

1. Interception of Wire and Electronic Communications: Electronic intercepts are legally sanctioned surveillance of electronic and wire communications for law enforcement purposes. Individuals involved in criminal activity often use wire and electronic communications to plan crimes such as drug trafficking. The use of court-authorized electronic intercepts is an effective tool to help law enforcement identify and investigate drug traffickers, street gangs, and solve serious and violent offences. According to the California Department of Justice, in 2016, intercept orders led to approximately 472 drug related arrests. In general, California law prohibits wiretapping. (People v. Leon (2007) 40 Cal.4th 376, 383; see Cal. Const., art. I, Section 1.) ''California's wiretap law subjects the authorization of electronic surveillance to a much higher degree of scrutiny than a conventional search warrant.'' (People v. Roberts, 184 Cal. App. 4th 1149, 1166.) The purpose of wiretap laws is to protect the privacy of wire and oral communications and to delineate a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.

A designated judge may authorize a wiretap when the judge finds there is probable cause to believe that an individual is, was, or will be committing a specified crime, particular communications about the offense will be intercepted and the device is used or leased by the person targeted by the wiretap. (Penal Code, Section 629.52.). The judge must also determine that normal investigative procedures have been tried and failed, or appear reasonably unlikely to succeed, or would be too dangerous if tried. (Penal Code, Section 629.52(d).) The intercept must be conducted to minimize the interception of communications not otherwise subject to interception.

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Liah Burnley / PUB. S. / (916) 319-3744 FN: 0003266

Date of Hearing: April 4, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 1948

Author:(Jones-Sawyer) – As Introduced Ver:January 29, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill adds fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered. Specifically, this bill allows a court to issue an order authorizing the interception of wire or electronic communications where there is probable cause to believe that an individual is committing, has committed, or is about to commit a specified offense related to importing, possessing for sale transporting, manufacturing, or selling fentanyl.

FISCAL EFFECT:

GF costs for the Department of Justice (DOJ) to handle increased workload and increased volume of communications interceptions. Specifically, DOJ reports $661,000 of costs in the first year and $311,000 costs in the second year and ongoing for one additional staff person, computer hardware (such as servers and storage), and intercept software.

COMMENTS:

1. Background. Existing law allows a court to issue an order authorizing the interception of wire or electronic communications when there is probable cause to believe an individual is engaged in an offense related to heroin, cocaine, PCP, or methamphetamine. Fentanyl, which is a synthetic opiate, is not included in the list of substances for which a communications interception may be ordered. However, fentanyl is much more potent than other opiates, such as morphine and heroin. Due to the potency of the substance, fentanyl is responsible for many recent fatalities.
2. Purpose. This bill provides the same tools to law enforcement to stop the trafficking of fentanyl as currently exists to stop the trafficking of other opiates and substances. According to the author:

In March of 2015 the Drug Enforcement Administration issued a nationwide alert on fentanyl as a threat to health and public safety. Law enforcement authorities are seeing an increase in fentanyl drug trafficking because of its extreme profitability. As the Chairman of the Assembly Public Safety Committee it is my duty to keep Californians safe and protect them from the drug traffickers who are illegally transporting, manufacturing, and selling this fatal drug in our neighborhoods.

1. Related Legislation.

AB 3105 (Waldron) increases the punishment for transporting, importing into this state, selling, furnishing, administering, or giving away fentanyl. AB 3105 is pending hearing in the Assembly Public Safety Committee.

AB 2467 (Patterson) punishes the possession, sale, or purchase for sale of fentanyl by imprisonment in a county jail for four, five, or six years, the transportation, importation, sale, furnishing, administering, or giving away of fentanyl by imprisonment in a county jail for seven, eight, or nine years, and the trafficking of fentanyl by imprisonment in a county jail for seven, 10, or 13 years. AB 2467 is pending hearing in the Assembly Public Safety Committee.

SB 1103 (Bates) imposes an additional term, and authorizes a trial court to impose a specified fine, upon a person who is convicted of a violation of, or of a conspiracy to violate, specified provisions of law related to the possession for sale or purchasing for sale, if the substance containing fentanyl exceeds a specified weight. SB 1103 is pending hearing in the Senate Public Safety Committee.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1948

Author:(Jones-Sawyer) – As Introduced Ver:January 29, 2018

SUMMARY:

Adds fentanyl to the list of controlled substances for which interception of wire or electronic communications may be ordered. Specifically, this bill: allows a judge to issue an order authorizing the interception of wire or electronic communications where there is probable cause to believe that an individual is committing, has committed, or is about to commit a specified offense related to importing, possessing for sale transporting, manufacturing, or selling fentanyl.

EXISTING LAW:

1. Specifies that fentanyl is a Schedule II controlled substance. (Health & Saf. Code, § 11055, subd. (c)(8).)
2. Prohibits possession for sale or purchase for sale of fentanyl, and provides for imprisonment in a county jail for two, three, or four years for a violation of this provision. (Health & Saf. Code, § 11351.)
3. Prohibits transporting, importing into this state, selling, furnishing, administering, or giving away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport fentanyl, and provides for imprisonment in a county jail for three, four, or five years for a violation of this provision. (Health & Saf. Code, § 11352.)
4. Prohibits manufacturing, compounding, converting, producing, deriving, processing, or preparing, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, fentanyl, and provides for imprisonment in a county jail for 3, 5 or 7 years and by a fine not exceeding $50,000. (Health & Saf. Code, § 11379.6.)
5. Specifies the offenses for which an interception order may be issued, including import, possession for sale, transport, manufacture, or sale of a substance containing more than 10 gallons of liquid or three pounds of solid heroin, cocaine, PCP, methamphetamine, or their precursors or analogs. (Pen. Code, § 629.52 subd. (a)(1).)
6. Defines “wire communication” as the transmission of communications by wire, cable, or other connection between the point of origin and point of reception. (Pen. Code, § 629.51 subd. (a)(1).)
7. Defines “electronic communication” as the transfer of data, images, sounds, writings, signals, and intelligence of any nature by a wire, radio, electromagnetic, photoelectric, or photo-optical system. (Pen. Code, § 629.51 subd. (a)(2).)
8. Specifies that the interception of wire or electronic communications does not apply to stored communications or stored content. (Pen. Code, § 629.51 subd. (b).)
9. Requires an investigative or law enforcement officer to apply to the presiding superior court judge for an order authorizing the interception of wire or electronic communications. (Pen. Code, § 629.50.)
10. Requires the application to be made in writing upon the personal oath or affirmation of the Attorney General, Chief Deputy Attorney General, or Chief Assistant Attorney General, Criminal Law Division, or a district attorney or person designated to act as district attorney. (Pen. Code, § 629.50 subd. (a).)
11. Requires that the application include a statement of facts and circumstances, including the offense that is being, has been, or is about to be committed, the place where the communication is to be intercepted, that conventional investigative techniques are unlikely to succeed, the type of communication that is to be intercepted, the identity, if known, of the person whose communications are to be intercepted, and a statement of the period of time for which the interception is required to be maintained. (Pen. Code, § 629.50 subd. (a)(4)-(5).)
12. Allows a presiding superior court judge, or judge designated by the presiding judge, upon application, to issue an order authorizing interception of wire or electronic communications when there is probable cause to believe that a specified offense is being, has been, or is about to be committed. (Pen. Code, § 629.52.)
13. Permits the judge to grant oral approval for an emergency interception 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. (Pen. Code, § 629.56.)
14. Provides that no order shall authorize the interception of a wire or electronic communication for a period longer than necessary to achieve the objective of the authorization, nor longer than 30 days. (Pen. Code, § 629.58.)
15. Requires that a defendant identified as the result of an interception shall be notified 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 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.)
    
16. Specifies that a defendant in any trial, hearing, or proceeding, may move to suppress some or all of the contents of an intercepted wire or electronic communications, or evidence derived from an intercepted communication, on the basis that the evidence was obtained in violation of the Fourth Amendment of the United States Constitution. (Pen. Code, § 629.72).
17. Provides that the provisions governing the interception of wire or electronic communications sunset on January 1, 2020. (Pen. Code, § 629.98.)

FISCAL EFFECT:

Unknown.

COMMENTS:

1. Author's Statement: According to the author, “In March of 2015 the Drug Enforcement Administration issued a nationwide alert on fentanyl as a threat to health and public safety. Law enforcement authorities are seeing an increase in fentanyl drug trafficking because of its extreme profitability. As the Chairman of the Assembly Public Safety Committee it is my duty to keep Californians safe and protect them from the drug traffickers who are illegally transporting, manufacturing, and selling this fatal drug in our neighborhoods.”
2. Fentanyl: Fentanyl was synthesized in the 1960s and has been used medically since 1968. The Centers for Disease Control and Prevention (CDC) website provides this description of fentanyl:
   

Fentanyl is a member of the class of drugs known as fentanyls, rapid-acting opioid (synthetic opiate) drugs that alleviate pain without causing loss of consciousness (analgesic). Fentanyl depresses central nervous system (CNS) and respiratory function. Exposure to fentanyl may be fatal. Fentanyl is estimated to be 80 times as potent as morphine and hundreds of times more potent than heroin. It is a drug of abuse. Fentanyl (and other opioids) could possibly be used as an incapacitating agent to impair a person’s ability to function. In October 2002, the Russian military reportedly used “a fentanyl derivative” against terrorists holding hostages in a Moscow theater; 127 of the hostages died. (It is unclear whether the gas used also included other chemical agent(s).) Fentanyl is odorless. (https://www.cdc.gov/niosh/ershdb/emergencyresponsecard_29750022.html)

The Drug Enforcement Administration (DEA) publishes an annual illicit drug “threat assessment.” The assessment reviews trends and issues concerning major drugs of abuse. The 2017 Threat Assessment stated as to fentanyl:

“Illicit fentanyl and other synthetic opioids — primarily sourced from China and Mexico and shipped directly to the United States or trafficked overland via Mexico and Canada — are contributing factors in the current synthetic opioid overdose epidemic. Traffickers in the United States usually mix fentanyl into heroin products and sometimes other illicit drugs, or press it into counterfeit prescription pills, often without users’ awareness, which leads to overdose incidents…

“In CY 2016, law enforcement agencies across the United States seized a record high 287 kilograms of fentanyl; a 72 percent increase from the 167 kilograms seized in 2015.” (https://www.dea.gov/docs/DIR-040-17_2017-NDTA.pdf)

1. Interception of Wire and Electronic Communications: Electronic intercepts are legally sanctioned surveillance of electronic and wire communications for law enforcement purposes. Individuals involved in criminal activity often use wire and electronic communications to plan crimes such as drug trafficking. The use of court-authorized electronic intercepts is an effective tool to help law enforcement identify and investigate drug traffickers, street gangs, and solve serious and violent offences. According to the California Department of Justice, in 2016, intercept orders led to approximately 472 drug related arrests. (https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/annual-rpt-legislature-2016.pdf)
   
   In general, California law prohibits wiretapping. (People v. Leon (2007) 40 Cal.4th 376, 383; see Cal. Const., art. I, § 1.) “California’s wiretap law subjects the authorization of electronic surveillance to a much higher degree of scrutiny than a conventional search warrant.” (People v. Roberts, 184 Cal. App. 4th 1149, 1166.) The purpose of wiretap laws is to protect the privacy of wire and oral communications and to delineate a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. (Halpin v. Superior Court (1972) 6 Cal.3d 885, 898.)
   
   A designated judge may authorize a wiretap when the judge finds there is probable cause to believe that an individual is, was, or will be committing a specified crime, particular communications about the offense will be intercepted and the device is used or leased by the person targeted by the wiretap. (Pen. Code, § 629.52.). The judge must also determine that normal investigative procedures have been tried and failed, or appear reasonably unlikely to succeed, or would be too dangerous if tried. (Pen. Code, § 629.52, subd. (d).) The intercept must be conducted to minimize the interception of communications not otherwise subject to interception. (Pen. Code, § 629.58.)
2. Argument in Support: According to the Los Angeles County District Attorney’s Office, the sponsor of the bill, “Because of the high demand and profitability of fentanyl California has seen a dramatic increase in fentanyl seizures by law enforcement. According to the DEA, 48 kilograms of fentanyl were seized in California in 2015. In 2016, 244 kilograms were seized. As of June 2017, 104 kilograms have been seized in California. Most alarming, there were only 8 law enforcement (state and federal) seizures of fentanyl in California in 2015; by 2016, the number of seizures increased to 37. As of June 2017, the`re have been 46 seizures of fentanyl.
   
   “Unfortunately one of the most successful tools law enforcement has to tackle a problem like the one fentanyl poses is the use of wiretaps. 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, human trafficking, and attempts or conspiracies to commit these enumerated offenses.
   
   “In particular, Penal Code section 629.52(a)(1) lists heroin, cocaine, PCP, methamphetamine, or their precursors or analogs where the substance exceeds 10 gallons by liquid volume or three pounds of solid substance by weight.
   
   “Absent from Penal Code section 629.52(a)(1) is fentanyl, which is 50 to 100 times more potent than morphine. In comparison, heroin is roughly twice as potent as morphine. Overdosing on fentanyl is relatively easy, especially for heroin users who may underestimate fentanyl’s potency.
   
   “AB 1948 amends California’s wiretap statute to add fentanyl to the list of enumerated controlled substances.
   
   “The interception of wire and electronic communications (cell phones, text messages, etc.) comprises the ideal tool to investigate, infiltrate, dismantle, and prosecute drug 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.”
   
3. Related Legislation:
   
   1. AB 3105 (Waldron), would increase the punishment for transporting, importing into this state, selling, furnishing, administering, or giving away fentanyl. AB 3105 is pending referral from the Assembly Rules Committee
      
   2. AB 2467 (Patterson), would punish the possession, sale, or purchase for sale of fentanyl by imprisonment in a county jail for 4, 5, or 6 years, the transportation, importation, sale, furnishing, administering, or giving away of fentanyl by imprisonment in a county jail for 7, 8, or 9 years, and the trafficking of fentanyl by imprisonment in a county jail for 7, 10, or 13 years. AB 2467 is pending referral from the Assembly Rules Committee.
      
   3. SB 1103 (Bates), would impose an additional term, and authorizes a trial court to impose a specified fine, upon a person who is convicted of a violation of, or of a conspiracy to violate, specified provisions of law related to the possession for sale or purchasing for sale, if the substance containing fentanyl exceeds a specified weight. SB 1103 is pending hearing in the Senate Public Safety Committee.
      
4. Prior Legislation:
   
   1. SB 1323 (Bates), of the 2015-2016 Legislative Session, would have added enhancements ranging from three to 25 years for the possession of fentanyl and carfentanil for sale. SB 1323 was held in Assembly Appropriations.
      
   2. SB176 (Bates), of the 2017-2018 Legislative Session, would have added enhancements ranging from three to 25 years for the possession of fentanyl and carfentanil for sale. SB 176 failed passage in Senate Public Safety.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Los Angeles County District Attorney’s Office (Co-Sponsor)

Los Angeles County Sheriff’s Department (Co-Sponsor)

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California Correctional Supervisors Organization

California Narcotic Officers Association

California State Sheriff’s Association

Los Angeles County Professional Peace Officers Association

Riverside Sheriff’s Association

Opposition

None

Analysis Prepared by:

Liah Burnley / PUB. S. / (916) 319-3744