HOUSE BILL REPORT

HB 1966

BYRepresentatives Locke, Patrick, Ebersole, Wineberry, Armstrong, Belcher, Crane, Appelwick, Holland, Basich, Valle, O'Brien, Sanders, Silver, May, Todd and Sutherland

Authorizing one party consent to interception in drug cases.

House Committe on Judiciary

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  (11)

      Signed by Representatives Armstrong, Chair; Crane, Vice Chair; Appelwick, Belcher, Hargrove, P. King, Locke, Meyers, Scott, Wang and Wineberry.

Minority Report:  Do not pass.  (6)

      Signed by Representatives Brough, Lewis, Moyer, Padden, Patrick and Schmidt.

House Staff:Bill Perry (786-7123)

AS REPORTED BY COMMITTEE ON JUDICIARY FEBRUARY 4, 1988

BACKGROUND:

The state's Privacy Act generally prohibits the interception or recording of any conversation or communication without the consent of all parties concerned.

Washington law has four categories of exceptions to this general prohibition. The first of these involves telephone calls ("wire" communications or conversations) of an emergency, threatening or harassing nature. Such calls may be recorded with the consent of any party to the call. This exception applies to private citizens as well as government officials, and requires no prior authorization of any kind.  The second exception applies only to police, fire and emergency personnel, and allows the recording of incoming calls and arrest procedures. This exception also requires no prior approval.  The third exception applies when a police officer is a party to any an oral conversation involving a felony.  This exception requires that the officer get prior judicial authorization from a judge or magistrate.  The authorization may be by telephone and must be based on probable cause to believe a nonconsenting party to the conversation has or will commit a felony.  The fourth exception applies to conversations in which none of the parties has consented to an interception.  This exception requires the state attorney general or a county prosecuting attorney to get prior authorization (an "ex parte" order) from a superior court judge.  This exception is limited to situations involving national security, threat to human life, arson or riot.

The admissibility of evidence obtained by intercepting or recording conversations is also controlled by the Privacy Act.  Any evidence obtained in violation of the act is inadmissible except in a lawsuit by a person whose privacy rights have been violated, or in a case involving national security.  Generally, evidence obtained in compliance with the act is admissible.  However, evidence gathered pursuant to an ex parte order may be used only in privacy rights violation cases or national security cases.

SUMMARY:

SUBSTITUTE BILL:  A new exception is added to the Privacy Act's general prohibition against recording or intercepting conversations without the consent of all parties involved.  The exception applies to conversations involving illegal drug activity in which at least one party to the conversation has consented to its interception or recording.  In such situations, a law enforcement officer above the rank of first line supervisor may authorize the interception or recording for the sole purpose of protecting the safety of the consenting party.

The in-court use to which information obtained under this procedure may be put is limited.  The information is admissible with the permission of a party who did not consent to the interception of the conversation.  It is also admissible in a prosecution for a serious violent criminal offense or a civil suit for personal injury or wrongful death when a party who did consent to the interception is the victim.

Prior to the recording, the authorizing officer must prepare a written report with information as to the date and time, persons involved, and safety considerations surrounding the conversation.  Within fifteen days after the recording, the officer must submit the report to a judge and to the administrator for the courts.

The provision in the Privacy Act allowing interception with prior judicial approval in any felony case when one party to the conversation has consented to the interception is also amended.  If the prior judicial approval is subsequently invalidated by a court, the information obtained may nonetheless be used to impeach the testimony of any party to the conversation so long as the application for prior approval was made in good faith.

SUBSTITUTE BILL COMPARED TO ORIGINAL:  The original bill would have amended the ex parte exception to include drug offenses.  The substitute amends the one-party consent exception.  The substitute added the provision allowing use of evidence for impeachment purposes.

Fiscal Note:      Not Requested.

House Committee ‑ Testified For:    George Tellevick, WSP; Larry Erickson, Washington Association of Sheriffs and Police Chiefs.

House Committee - Testified Against:      Eugene Chellis, Seattle King County Bar Association; John Midgley, Washington Association of Criminal Defense Lawyers.

House Committee - Testimony For:    Officer safety is a real problem in drug cases and this bill will help reduce the danger to undercover officers and agents.  When recorded evidence of a conversation is available and the recording was judicially authorized, it should be admissible at least to prevent drug dealers from lying in court.

House Committee - Testimony Against:      The current law is a good balance between citizens' privacy rights and law enforcement needs.  Prior judicial authorization is routinely given and the criteria are broad enough to cover sophisticated drug operations.  If officer safety is a concern, signaling devices and monitoring of conversations without recording are sufficient protections.