Amended  IN  Assembly  July 11, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 439

Introduced by Senator Umberg

February 21, 2019

An act to amend Sections 629.78 and 629.82 of the Penal Code, relating to criminal procedure.


LEGISLATIVE COUNSEL'S DIGEST


SB 439, as amended, Umberg. Criminal procedure: wiretapping: authorization and disclosure.
Existing law establishes a procedure for a prosecutor to apply for, and the court to issue, an order authorizing law enforcement to intercept a wire or electronic communication.
Under existing law, in accordance with the procedures described above, the Attorney General, a deputy attorney general, district attorney, or deputy district attorney, or a peace officer who has obtained knowledge of the contents of any wire or electronic communication may disclose the contents, under specified circumstances, to a judge or magistrate, or to a state or federal investigative or law enforcement officer, if that disclosure is appropriate to the proper performance of the official duties of the individual making or receiving the disclosure.
Existing law also prohibits a peace officer or federal law enforcement officer from disclosing or using the contents of intercepted wire or electronic communications relating to crimes other than certain enumerated crimes, such as murder, human trafficking, and violent felonies, and those specified in the order of authorization, except to prevent the commission of a public offense.
This bill would authorize a peace officer or federal law enforcement officer to disclose those contents if they relate to serious felonies, as defined. grand theft involving a firearm or maliciously exploding or igniting a destructive device or any explosive causing bodily injury, mayhem or great bodily injury, or death. The bill would also authorize a peace officer or federal law enforcement officer to disclose those contents if they relate to a crime involving a peace officer and are disclosed in an administrative or disciplinary hearing. If an agency employing a peace officer uses those contents as evidence in an administrative or disciplinary proceeding, the bill would require the number of proceedings and the offenses for which the evidence was used to be reported to the Attorney General. The bill would require the Attorney General to report this information to the Legislature, as provided.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 629.78 of the Penal Code is amended to read:

629.78.
 Any person who has received, by any means authorized by this chapter, any information concerning a wire or electronic communication, or evidence derived therefrom, intercepted in accordance with the provisions of this chapter, may, pursuant to Section 629.82, disclose the contents of that communication or derivative evidence while giving testimony under oath or affirmation in any criminal court proceeding or in any grand jury proceeding, or in an administrative or disciplinary hearing involving the employment of a peace officer.

SEC. 2.

 Section 629.82 of the Penal Code is amended to read:

629.82.
 (a) If a peace officer or federal law enforcement officer, while engaged in intercepting wire or electronic communications in the manner authorized by this chapter, intercepts wire or electronic communications relating to crimes other than those specified in the order of authorization, but that are enumerated in subdivision (a) of Section 629.52, or any serious felony as defined in subdivision (c) of Section 1192.7, grand theft involving a firearm, a violation of Section 18750 or 18755, or a violent felony as defined in subdivision (c) of Section 667.5, (1) the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in Sections 629.74 and 629.76 and (2) the contents and any evidence derived therefrom may be used under Section 629.78 when authorized by a judge if the judge finds, upon subsequent application, that the contents were otherwise intercepted in accordance with the provisions of this chapter. The application shall be made as soon as practicable.
(b) If a peace officer or federal law enforcement officer, while engaged in intercepting wire or electronic communications in the manner authorized by this chapter, intercepts wire or electronic communications relating to crimes other than those specified in subdivision (a), the contents thereof, and evidence derived therefrom, may not be disclosed or used as provided in Sections 629.74 and 629.76, except to prevent the commission of a public offense. The contents and any evidence derived therefrom may not be used under Section 629.78, except where the evidence was obtained through an independent source or inevitably would have been discovered, and the use is authorized by a judge who finds that the contents were intercepted in accordance with this chapter.
(c) The use of the contents of an intercepted wire or electronic communication relating to crimes other than those specified in the order of authorization to obtain a search or arrest warrant entitles the person named in the warrant to notice of the intercepted wire or electronic communication and a copy of the contents thereof that were used to obtain the warrant.
(d) (1) If a peace officer or federal law enforcement officer, while engaged in intercepting wire or electronic communications in the manner authorized by this chapter, intercepts wire or electronic communications relating to crimes, other than those specified in subdivision (a), and involving the employment of a peace officer, the contents thereof, and evidence derived therefrom, may not be disclosed or used as provided in Sections 629.74 and 629.76, except to prevent the commission of a public offense or in an administrative or disciplinary hearing involving the employment of a peace officer. The contents and any evidence derived therefrom may not be used under Section 629.78, except if the evidence was obtained through an independent source or inevitably would have been discovered, and the use is authorized by a judge who finds that the contents were intercepted in accordance with this chapter.
(2) This section does not authorize the use of an intercepted wire or electronic communication involving acts that only involve a violation of a departmental rule or guideline that is not a public offense under California law.
(3) If an agency employing peace officers utilizes evidence obtained pursuant to this subdivision in an administrative or disciplinary proceeding, the agency shall, on an annual basis, report both of the following to the Attorney General:
(A) The number of administrative or disciplinary proceedings involving the employment of a peace officer in which the agency utilized evidence obtained pursuant to this subdivision.
(B) The specific offenses for which evidence obtained pursuant to this subdivision was used in those administrative or disciplinary proceedings.
(4) (A) The Attorney General may issue regulations prescribing the content and form of the reports required to be filed pursuant to paragraph (3) by an agency utilizing intercepted wire or electronic communications in an administrative or disciplinary proceeding against a peace officer.
(B) The Attorney General shall include information received pursuant to paragraph (3) in its annual report made pursuant to Section 629.62.