THIRD READING  

Bill No: AB 304

Author: Jones-Sawyer (D)

Introduced: 1/29/19

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/25/19

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Morrell, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/30/19

AYES: Portantino, Bates, Bradford, Durazo, Hill, Jones, Wieckowski

ASSEMBLY FLOOR: 75-0, 5/28/19 - See last page for vote

SUBJECT: Wiretapping: authorization

SOURCE: Los Angeles County District Attorney’s Office

DIGEST:

This bill extends the sunset date until January 1, 2025, on provisions of California law which authorize the Attorney General (AG), chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney's designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances.

ANALYSIS:

Existing law:

1. Authorizes the AG, chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney’s designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances. (Penal Code §§ 629.50 et. seq.)
2. 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, fentanyl, possession of a destructive device, weapons of mass destruction, restricted biological agents or human trafficking. (Penal Code § 629.52.)
3. 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.)
4. 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.)
5. 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.)
6. Requires the AG to prepare and submit an annual report to the Legislature, the Judicial Council and the Director of the Administrative Office of the United States Court on interceptions conducted under the authority of the wiretap provisions and specifies what the report shall include. (Penal Code § 629.62.)
7. 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.)
8. 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.)
9. 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.)
10. 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 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 States 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.)
11. 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).)
12. Provides that the provisions governing wiretaps sunsets on January 1, 2020. (Penal Code § 629.98.)

This bill extends the sunset to January 1, 2025.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• State prison: Unknown, potential increase in state costs for new commitments to state prison that otherwise would not have resulted in incarceration absent evidence recovered through a wiretap. To the extent that this measure leads to even one additional commitment to state prison, it would result in additional proposed per capita costs of $83,064, with an annual marginal rate per inmate of over $12,000, in FY 2019-20 to confine that person in a state institution. The actual costs would depend on how many defendants are sentenced to prison because of evidence obtained through a wire or electronic communication intercept. (General Fund)
• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who are charged with a crime based on evidence obtained by a state-authorized wiretap. 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. For example, the Budget Act of 2019 appropriated $41.8 million from the General Fund to backfill continued reduction in fine and penalty revenue for trial court operations. (General Fund*)
• Department of Justice: Unknown, likely minor and absorbable costs to publish annual reports related to wiretaps.

SUPPORT: (Verified 8/30/19)

Los Angeles County District Attorney’s Office (source)

California District Attorneys Association

California Narcotic Officers’ Association

California Police Chiefs Association

California State Sheriffs’ Association

Los Angeles County Sheriff’s Department

Peace Officers Research Association of California

Riverside Sheriffs’ Association

San Diego County District Attorney

OPPOSITION: (Verified 8/30/19)

None received

ASSEMBLY FLOOR: 75-0, 5/28/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Cooley, Flora, Eduardo Garcia, Gray, Ting

Prepared by: Mary Kennedy / PUB. S. /

9/1/19 14:05:10

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 304 (Jones-Sawyer) - Wiretapping: authorization

Bill Summary:

AB 304 would extend the authorization of state and local prosecutors to intercept a wire or electronic communication, as specified, to January 1, 2025.

Fiscal Impact:

• State prison: Unknown, potential increase in state costs for new commitments to state prison that otherwise would not have resulted in incarceration absent evidence recovered through a wiretap. To the extent that this measure leads to even one additional commitment to state prison, it would result in additional proposed per capita costs of $83,064, with an annual marginal rate per inmate of over $12,000, in FY 2019-20 to confine that person in a state institution. The actual costs would depend on how many defendants are sentenced to prison because of evidence obtained through a wire or electronic communication intercept. (General Fund)
• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants who are charged with a crime based on evidence obtained by a state-authorized wiretap. 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. For example, the Budget Act of 2019 appropriated $41.8 million from the General Fund to backfill continued reduction in fine and penalty revenue for trial court operations. (General Fund*)
• Department of Justice (DOJ): Unknown, likely minor and absorbable costs to publish annual reports related to wiretaps.

Background:

Existing state law, until January 1, 2020, allows the Attorney General, a district attorney, or their designee or specified employees to apply to the superior court for authorization to intercept a wire, electronic pager, or electronic cellular telephone (commonly known as a wiretap). The law regulates the issuance, duration, and monitoring of these orders and imposes safeguards to protect the public from unreasonable interceptions. There also are limits of which crimes law enforcement may seek a wiretap. A violation of the above-described provisions is an alternate felony-misdemeanor offense. Specifically, a wire or electronic communication intercept may be requested for the following crimes:

• 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.
• A violation of human trafficking.
• An attempt or conspiracy to commit any of the above.

Additionally, the Attorney General is required to prepare and submit an annual report to the Legislature, the Judicial Council, and the Director of the Administrative Office of the United States Courts regarding these interceptions, as specified.

Proposed Law:

This bill would extend, to January 1, 2025, the ability of the Attorney General and district attorneys to apply to the superior court for authorization to intercept a wire or electronic communication.

Related Legislation:

SB 35 (Pavley, Ch. 745, Stats. 2014) extended the sunset date on California’s wiretapping law until January 1, 2020.

SB 61 (Pavley, Ch. 663, Stats. 2011) extended the sunset date on California’s wiretapping law until January 1, 2015.

AB 569 (Portantino, Ch. 391, Stats. 2007) extended the sunset date on California wiretap law until January 1, 2012.

AB 74 (Washington, Ch. 605, Stats. 2002) extended the sunset date on California wiretap law until January 1, 2008.

Staff Comments:

The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, the criminal history of the defendant, and the factors unique to each case. As the crimes for which prosecutors may seek a wiretap are punishable as a felony with the potential for incarceration, certain rights to the defendants are attached to the proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) which could lead to lengthier and more complex court proceedings with attendant workload and resource costs to the court. According to the 2018 annual report on electronic interceptions by DOJ, there were 387 applications for, and 465 arrests and 53 felony convictions (for gang, narcotics, and other crimes) resulting from, wiretaps that year. (Note that any disparity between arrest and disposition figures could result from the fact that many cases take longer than one calendar year from the time of arrest to reach the ultimate disposition). If these statistics remain relatively constant, state court cost pressures and incarceration costs associated with this bill would be in the millions of dollars annually.

California is subject to a federal court order to sustainably 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 26, 2019, 117,945 inmates were detained in the state’s 35 adult institutions and camps, and 6,421 were held in in-state contract beds.  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 135.2 percent of design capacity. By potentially increasing the inmate population in state facilities, this bill could make it more difficult for the state to comply with the court order.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 304 Hearing Date: June 25, 2019

Subject: Wiretapping: Authorization

HISTORY

Source: Los Angeles County District Attorney’s Office

Prior Legislation: AB 1948 (Jones-Sawyer) Chapter 294, Stats. 2018

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 District Attorneys Association; California Narcotic Officers’ Association; California Police Chiefs Association; California State Sheriffs’ Association; Los Angeles County Sheriff’s Department; Peace Officers’ Research Association of California; Riverside Sheriffs’ Association; San Diego County District Attorney

Opposition: None known

Assembly Floor Vote: 75 - 0

PURPOSE

The purpose of this bill is to extend the sunset date until January 1, 2025 on provisions of California law which authorize the Attorney General (AG), chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney's designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances.

Existing law authorizes the AG, chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney’s designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances. (Penal Code §§ 629.50 et. seq.)

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, fentanyl, possession of a destructive device, weapons of mass destruction, restricted biological agents or human trafficking. (Penal Code § 629.52.)

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 AG to prepare and submit an annual report to the Legislature, the Judicial Council and the Director of the Administrative Office of the United States Court on interceptions conducted under the authority of the wiretap provisions and specifies what the report shall include. (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 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 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 provides that the provisions governing wiretaps sunsets on January 1, 2020. (Pen. Code, § 629.98.)

This bill extends the sunset to January 1, 2025.

COMMENTS

1. Need for This Bill

According to the author:

The California State Wiretap Statute has allowed law enforcement to successfully respond to serious and dangerous crimes including organized crime and drug trafficking since 1989. This has been accomplished through thoughtful legislation that allows for the use of wiretaps in limited circumstances, following an order from the Superior Court so as to balance privacy concerns. This bill is a reasonable extension of that authority for an additional five years.

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 AG 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. Sunset

The existing California wiretap provisions sunset on January 1, 2020. This bill would extend that sunset to January 1, 2025.

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ASSEMBLY THIRD READING

ATR Bill Id:AB 304

Author:(Jones-Sawyer)

As Introduced Ver:January 29, 2019

Majority vote

SUMMARY:

Extends the sunset date until January 1, 2025 on provisions of California law which authorize the Attorney General (AG), chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney's designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances.

Major Provisions

See above.

COMMENTS:

Overview of Wiretap Law: In general, California law prohibits wiretapping. However, a judge may grant a wiretap if, after reviewing a law enforcement agency's application, he or she makes specified findings. These findings include that law enforcement exhaust all normal investigative procedures and fail prior to applying for a wire intercept.

Prior to the enactment of Penal Code Section 629.50 et seq., wiretapping statutes did not permit the interception of oral or electronic communications and permitted wiretapping only during the investigation of specified offenses involving controlled substances.

The Legislature enacted Penal Code Section 629.50 et seq. in 1995 "in order to expand California wiretap law to conform with federal law" as it existed at the time. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1196.)

Federal law regulates the interception of wire, oral, and electronic communications under 18 United States Code Sections 2510 to 2520.

According to the Author:

"The California State Wiretap Statute has allowed law enforcement to successfully respond to serious and dangerous crimes including organized crime and drug trafficking since 1989. This has been accomplished through thoughtful legislation that allows for the use of wiretaps in limited circumstances, following an order from the Superior Court so as to balance privacy concerns. This bill is a reasonable extension of that authority for an additional five years."

Arguments in Support:

According to the Los Angeles County District Attorney's Office, "California's existing wiretap statute is set to expire on January 1, 2020. If the authorization of the wiretap statute is not extended law enforcement would no longer be able to intercept wire and electronic communications which would substantively impede their ability to remove dangerous narcotics from the community, curtail felonious gang activity, and bring those responsible for murder to justice.

"California's wiretap statute makes it a felony to intercept wire and electronic communications except for a narrow list of crimes. California's wiretap statute provides more privacy protections for ordinary, law-abiding persons than is currently provided for under federal law. There are substantial internal checks within law enforcement, district attorney offices and the courts to ensure that wiretap orders are only approved when there is probable cause to suspect that one of the enumerated offenses is being committed and that alternative methods of investigation and detection have been exhausted. The Los Angeles County District Attorney's Office was the sponsor of California's current wiretap statute.

"The Los Angeles County District Attorney's Office has a robust and highly effective wiretap program. Experienced deputies assigned to the Major Narcotics Division assist law enforcement agencies with wiretap applications and vertically prosecute narcotics cases which are derived from these wiretaps. Murder/gang cases are vertically prosecuted by deputies assigned to other prosecution divisions, particularly the Major Crimes Division and the Hardcore Gang Division. Narcotics wiretaps allow law enforcement to disrupt and dismantle drug trafficking organizations in Southern California. Murder/gang wiretaps have led to prosecutions of numerous gang-related and cold case murders that would never have been solved but for a wiretap."

Arguments in Opposition:

None.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee:

1. Annual state costs, potentially in the millions of dollars, to the extent continuing current authorization for wiretaps leads to an increase in state prison commitments. For example, according to the Department of Justice (DOJ), in California in 2012, 615 wiretaps were authorized in 22 counties, leading to 729 arrests and 84 convictions.
2. Annual non-reimbursable local and federal law enforcement costs of approximately $28 million, as a result of continuing wiretapping authorization, according to counties reporting to DOJ in 2017.
3. Potential ongoing state law enforcement costs to DOJ for its wiretapping efforts, even though DOJ obtained only one intercept as stated in DOJ's 2017 statutory electronic interceptions report.
4. Minor costs to DOJ, less than $150,000, for its detailed annual report.

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

VOTES:

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Lackey, Bauer-Kahan, Diep, Kamlager-Dove, Quirk, Santiago, Wicks

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

UPDATED:

VERSION: January 29, 2019

CONSULTANT: Gregory Pagan (Chief Counsel) / PUB. S. / (916) 319-3744 FN: 0000632

Date of Hearing: March 20, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 304

Author:(Jones-Sawyer) – As Introduced Ver:January 29, 2019

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

SUMMARY:

This bill extends the sunset date regulating state and local government interception of electronic communications (wiretaps), from January 1, 2020, until January 1, 2025.

FISCAL EFFECT:

1. Annual state costs, potentially in the millions of dollars, to the extent continuing current authorization for wiretaps leads to an increase in state prison commitments. For example, according to the Department of Justice (DOJ), in California in 2012, 615 wiretaps were authorized in 22 counties, leading to 729 arrests and 84 convictions.
2. Annual non-reimbursable local and federal law enforcement costs of approximately $28 million, as a result of continuing wiretapping authorization, according to counties reporting to DOJ in 2017.
3. Potential ongoing state law enforcement costs to DOJ for its wiretapping efforts, even though DOJ obtained only one intercept as stated in DOJ’s 2017 statutory electronic interceptions report.
4. Minor costs to DOJ, less than $150,000, for its detailed annual report.

COMMENTS:

1. Purpose. According to the author:

The California State Wiretap Statute has allowed law enforcement to successfully respond to serious and dangerous crimes including organized crime and drug trafficking since 1989. This has been accomplished through thoughtful legislation that allows for the use of wiretaps in limited circumstances, following an order from the Superior Court so as to balance privacy concerns. This bill is a reasonable extension of that authority for an additional five years.

1. Background. Penal Code section 629.50 authorizes DOJ and a district attorney to apply for an order authorizing interception of a wire, electronic pager or electronic cellular phone communication under specified circumstances. Interceptions are only authorized for a specific period to ensure the appropriate use of wiretaps. Otherwise electronic interception is illegal.

The crimes for which an interception order may be sought include murder, solicitation to commit murder, bombing, use or threat to use weapons of mass destruction, criminal gang activity, and importation, possession for sale, transportation, manufacture or sale of heroin, cocaine, PCP, methamphetamine, or its precursors, possession of a destructive device, weapons of mass destruction or restricted biological agents.

Existing law also requires that written reports showing progress 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. In 2016, California investigators used state wiretapping laws 563 times to capture 7.8 million communications from 181,000 people.

1. Support. According to the Los Angeles County District Attorney’s Office:

California’s existing wiretap statute is set to expire on January 1, 2020. If the authorization of the wiretap statute is not extended law enforcement would no longer be able to intercept wire and electronic communications which would substantively impede their ability to remove dangerous narcotics from the community, curtail felonious gang activity, and bring those responsible for murder to justice.

California's wiretap statute makes it a felony to intercept wire and electronic communications except for a narrow list of crimes. California's wiretap statute provides more privacy protections for ordinary, law-abiding persons than is currently provided for under federal law. There are substantial internal checks within law enforcement, district attorney offices and the courts to ensure that wiretap orders are only approved when there is probable cause to suspect that one of the enumerated offenses is being committed and that alternative methods of investigation and detection have been exhausted. Narcotics wiretaps allow law enforcement to disrupt and dismantle drug trafficking organizations in Southern California. Murder/gang wiretaps have led to prosecutions of numerous gang-related and cold case murders that would never have been solved but for a wiretap.

1. Prior Legislation.
   1. SB 35 (Pavley), Chapter 745, Statutes of 2014, extended the sunset date on California’s wiretapping law until January 1, 2020.
   2. SB 61 (Pavley), Chapter 663, Statutes of 2011, extended the sunset date on California’s wiretapping law until January 1, 2015.
   3. AB 569 (Portantino), Chapter 391, Statutes of 2007, extended the sunset date on California wiretap law until January 1, 2012.
   4. AB 74 (Washington), Chapter 605, Statutes of 2002, extended the sunset date on California wiretap law until January 1, 2008.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: March 12, 2019

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 304

Author:(Jones-Sawyer) – As Introduced Ver:January 29, 2019

SUMMARY:

Extends the sunset date until January 1, 2025 on provisions of California law which authorize the Attorney General (AG), chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney's designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire or electronic communications under specified circumstances.

EXISTING LAW:

1. Authorizes the AG, chief deputy attorney general, chief assistant attorney general, district attorney or the district attorney's designee to apply to the presiding judge of the superior court for an order authorizing the interception of wire, electronic digital pager, or electronic cellular telephone communications under specified circumstances. (Pen. Code, § 629.50.)
   
2. Defines "wire communication, electronic pager communication," "electronic cellular communication," and "aural transfer" for the purposes of wiretaps. (Pen. Code, § 629.51.)
   
3. Defines "aural transfer" as a transfer containing the human voice at any point between and including the point of origin and the point of reception. (Pen. Code, § 629.51.)
   
4. Specifies the crimes for which an interception order may be sought: murder; kidnapping; bombing; criminal gangs; and possession for sale, sale, transportation, or manufacturing of more than three pounds of cocaine, heroin, PCP, methamphetamine or its precursors; possession of a destructive device, weapons of mass destruction or restricted biological agents. (Pen. Code, § 629.52.)
   
5. Provides that the court may grant oral approval for an emergency interception of wire, electronic pager or electronic cellular telephone communications without an order as specified. Approval for an oral interception shall be conditioned upon filing with the court, within 48 hours of the oral approval, a written application for an order. Approval of the ex parte order shall be conditioned upon filing with the judge within 48 hours of the oral approval. (Pen. Code, § 629.56.)
   
6. Provides that no order entered under this chapter shall authorize the interception of any wire, electronic pager or electronic cellular telephone or electronic communication for any period loner than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days. (Pen. Code, § 629.58.)
   
7. Requires that written reports showing what progress has been made toward the achievement of the authorized objective, including the number of intercepted communications, be submitted at least every six days to the judge who issued the order allowing the interception. (Pen. Code, § 629.60.)
   
8. Provides that whenever an order authorizing an interception is entered the order shall require a report be made to the AG showing what persons, facilities, or places are to be intercepted pursuant to the application, and the action taken by the judge on each of these applications. (Pen. Code, § 629.61.)
   
9. Requires the AG to prepare and submit an annual report to the Legislature, the Judicial Council and the Director of the Administrative Office of the United States Court on interceptions conducted under the authority of the wiretap provisions and specifies what the report shall include. (Pen. Code, § 629.62.)
   
10. Provides that applications made and orders granted shall be sealed by the judge. Custody of the applications and orders shall be where the judge orders. The applications and orders shall be disclosed only upon a showing of good cause before a judge and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years. (Pen. Code, § 629.66.)
    
11. Provides that a defendant shall be notified that he or she was identified as the result of an interception prior to the entry of a plea of guilty or nolo contendere, or at least 10 days, prior to any trial, hearing or proceedings in the case other than an arraignment or grand jury proceeding. Within 10 days prior to trial, hearing or proceeding the prosecution shall provide to the defendant a copy of all recorded interceptions from which evidence against the defendant was derived, including a copy of the court order, accompanying application and monitory logs. (Pen. Code, § 629.70.)
    
12. Provides that any person may move to suppress intercepted communications on the basis that the contents or evidence were obtained in violation of the Fourth Amendment to the United States Constitution or of California electronic surveillance provisions. (Pen. Code, § 629.72.)
    
13. Provides that the AG, any deputy AG, district attorney or deputy district attorney or any peace officer who, by any means authorized by this chapter has obtained knowledge of the contents of any wire, electronic pager, or electronic cellular telephone communication or evidence derived there from, may disclose the contents to one of the individuals referred to in this section and to any investigative or law enforcement officer as defined in subdivision (7) of Section 2510 of Title 18 of the United State Code to the extent that the disclosure is permitted pursuant to Penal Code section 629.82 and is appropriate to the proper performance of the official duties of the individual making or receiving the disclosure. No other disclosure, except to a grand jury, of intercepted information is permitted prior to a public court hearing by any person regardless of how the person may have come into possession thereof. (Pen. Code, § 629.74.)
    
14. Provides that if a law enforcement officer overhears a communication relating to a crime that is not specified in the wiretap order, but is a crime for which a wiretap order could have been issued, the officer may only disclose the information and thereafter use the evidence, if, as soon as practical, he or she applies to the court for permission to use the information. If an officer overhears a communication relating to a crime that is not specified in the order, and not one for which a wiretap order could have been issued or any violent felony, the information may not be disclosed or used except to prevent the commission of a crime. No evidence derived from the wiretap can be used unless the officers can establish that the evidence was obtained through an independent source or inevitably would have been discovered. In all instances, the court may only authorize use of the information if it reviews the procedures used and determines that the interception was in accordance with state wiretap laws. (Pen. Code, § 629.82, subd. (b).)
    
15. Provides that the provisions governing wiretaps sunsets on January 1, 2020. (Pen. Code, § 629.98.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "The California State Wiretap Statute has allowed law enforcement to successfully respond to serious and dangerous crimes including organized crime and drug trafficking since 1989. This has been accomplished through thoughtful legislation that allows for the use of wiretaps in limited circumstances, following an order from the Superior Court so as to balance privacy concerns. This bill is a reasonable extension of that authority for an additional five years.”
   
2. Overview of Wiretap Law: In general, California law prohibits wiretapping. However, a judge may grant a wiretap if, after reviewing a law enforcement agency’s application, he or she makes specified findings. These findings include that law enforcement exhaust all normal investigative procedures and fail prior to applying for a wire intercept.
   
   Prior to the enactment of Pen. Code, § 629.50 et seq., wiretapping statutes did not permit the interception of oral or electronic communications and permitted wiretapping only during the investigation of specified offenses involving controlled substances.
   
   The Legislature enacted Section 629.50 et seq. in 1995 “in order to expand California wiretap law to conform with federal law” as it existed at the time. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1196.)
   
   Federal law regulates the interception of wire, oral, and electronic communications under 18 United States Code Sections 2510 to 2520.
   
3. Argument in Support: According to the Los Angeles County District Attorney’s Office, “California’s existing wiretap statute is set to expire on January 1, 2020. If the authorization of the wiretap statute is not extended law enforcement would no longer be able to intercept wire and electronic communications which would substantively impede their ability to remove dangerous narcotics from the community, curtail felonious gang activity, and bring those responsible for murder to justice.

"California's wiretap statute makes it a felony to intercept wire and electronic communications except for a narrow list of crimes. California's wiretap statute provides more privacy protections for ordinary, law-abiding persons than is currently provided for under federal law. There are substantial internal checks within law enforcement, district attorney offices and the courts to ensure that wiretap orders are only approved when there is probable cause to suspect that one of the enumerated offenses is being committed and that alternative methods of investigation and detection have been exhausted. The Los Angeles County District Attorney's Office was the sponsor of California's current wiretap statute.

"The Los Angeles County District Attorney's Office has a robust and highly effective wiretap program. Experienced deputies assigned to the Major Narcotics Division assist law enforcement agencies with wiretap applications and vertically prosecute narcotics cases which are derived from these wiretaps. Murder/gang cases are vertically prosecuted by deputies assigned to other prosecution divisions, particularly the Major Crimes Division and the Hardcore Gang Division. Narcotics wiretaps allow law enforcement to disrupt and dismantle drug trafficking organizations in Southern California. Murder/gang wiretaps have led to prosecutions of numerous gang-related and cold case murders that would never have been solved but for a wiretap."

1. Prior Legislation
   
   1. SB 35 (Pavley), Chapter 745, Statutes of 2014, extended the sunset date on California’s wiretapping law until January 1, 2020.
      
   2. SB 61 (Pavley), Chapter 663, Statutes of 2011, extended the sunset date on California’s wiretapping law until January 1, 2015.
      
   3. AB 74 (Washington), Chapter 605, Statutes of 2002, extended the sunset date on California wiretap law until January 1, 2008.
      
   4. AB 569 (Portantino), Chapter 391, Statutes of 2007, extended the sunset date on California wiretap law until January 1, 2012.

REGISTERED SUPPORT / OPPOSITION:

Support

Los Angeles County District Attorney's Office (Sponsor)
California State Sheriffs' Association

Opposition

None

Analysis Prepared by:

Gregory Pagan / PUB. S. / (916) 319-3744