AN ACT Relating to authorizing interception and recording of conversations concerning illegal controlled substances with prior judicial approval and allowing interception and transmission of such conversations without prior judicial approval for the sole purpose of protecting the safety of law enforcement officers; amending RCW 9.73.090; adding new sections to chapter 9.73 RCW; creating new sections; and repealing RCW 9.73.050.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that the manufacturing, selling, and distributing of unlawful controlled substances is becoming increasingly more prevalent and violent. Attempts by law enforcement officers to prevent the manufacture, sale, and distribution of illegal drugs is resulting in numerous life-threatening situations since drug dealers are using sophisticated weapons and modern technological devices to deter the efforts of law enforcement officials to enforce the controlled substance statutes. Dealers of unlawful drugs are employing a wide variety of violent methods to realize the enormous profits of the drug trade.

Therefore, the legislature finds that conversations regarding illegal drug operations may be intercepted and transmitted in certain limited circumstances without prior judicial approval to protect the life and safety of law enforcement officers and protect the constitutional guarantees of privacy.

NEW SECTION. Sec. 2. This act shall be known and may be cited as the law enforcement officers' safety and protection act of 1988.

Sec. 3. Section 1, chapter 48, Laws of 1970 ex. sess. as last amended by section 2, chapter 38, Laws of 1986 and RCW 9.73.090 are each amended to read as follows:

(1) The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police, fire, emergency medical service, emergency communication center, and poison center personnel in the following instances:

(a) Recording incoming telephone calls to police and fire stations, licensed emergency medical service providers, emergency communication centers, and poison centers;

(b) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following:

(i) The arrested person shall be informed that such recording is being made and the statement so informing him shall be included in the recording;

(ii) The recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof;

(iii) At the commencement of the recording the arrested person shall be fully informed of his constitutional rights, and such statements informing him shall be included in the recording;

(iv) The recordings shall only be used for valid police or court activities.

(2) It shall not be unlawful for a law enforcement officer acting in the performance of the officer's official duties to intercept, record, or disclose an oral communication or conversation where the officer is a party to the communication or conversation or one of the parties to the communication or conversation has given prior consent to the interception, recording, or disclosure: PROVIDED, That prior to the interception, transmission, or recording the officer shall obtain written or telephonic authorization from a judge or magistrate, who shall approve the interception, recording, or disclosure of communications or conversations with a nonconsenting party for a reasonable and specified period of time, if there is probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony: PROVIDED HOWEVER, That if such authorization is given by telephone the authorization and officer's statement justifying such authorization must be electronically recorded by the judge or magistrate on a recording device in the custody of the judge or magistrate at the time transmitted and the recording shall be retained in the court records and reduced to writing as soon as possible thereafter.

Any recording or interception of a communication or conversation incident to a lawfully recorded or intercepted communication or conversation pursuant to this subsection shall be lawful and may be divulged.

All recordings of communications or conversations made pursuant to this subsection shall be retained for as long as any crime may be charged based on the events or communications or conversations recorded.

(3) Communications or conversations authorized to be intercepted, recorded, or disclosed by this section shall not be inadmissible under RCW 9.73.050.

(4) Authorizations issued under subsection (2) of this section shall be effective for not more than seven days, after which period the issuing authority may upon application of the officer who secured the original authorization renew or continue the authorization for ((an)) additional periods not to exceed seven days.

(5) If the judge or magistrate determines that there is probable cause to believe that the communication or conversation concerns the unlawful manufacture, delivery, sale, or possession with intent to manufacture, deliver, or sell, controlled substances as defined in chapter 69.50 RCW, or legend drugs as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW, the judge or magistrate may authorize the interception, recording, or disclosure of communications or conversations under subsection (2) of this section even though the true name of the nonconsenting party, or the particular time and place for the interception, recording, or disclosure, is not known at the time of the request, if the authorization describes the nonconsenting party and subject matter of the communication or conversation with reasonable certainty under the circumstances. Any such communication or conversation may be intercepted, recorded, or disclosed as authorized notwithstanding a change in the time or location of the communication or conversation after the authorization has been obtained or the presence of or participation in the communication or conversation by any additional party not named in the authorization.

NEW SECTION. Sec. 4. A new section is added to chapter 9.73 RCW to read as follows:

(1) If a police commander or officer above the rank of first line supervisor determines that the safety of the consenting party is in danger and that there is insufficient time to apply for judicial authorization pursuant to RCW 9.73.090(2), law enforcement personnel may, for the sole purpose of protecting the safety of the consenting party, intercept and transmit a private conversation or communication concerning the unlawful manufacture, delivery, sale, or possession with intent to manufacture, deliver, or sell, controlled substances as defined in chapter 69.50 RCW, or legend drugs as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW.

(2) No conversation or communication intercepted and transmitted pursuant to subsection (1) of this section may be recorded by any device electronic or otherwise designed to record such conversation or communication regardless of how the device is powered or activated, nor may any contemporaneous written notes or transcriptions by made.

(3) Nothing in this section bars the admission of testimony of a person who overhears a conversation or communication intercepted and transmitted pursuant to subsection (1) of this section.

(4) Before any interception and transmission of a private conversation or communication pursuant to this section, the police commander or officer making the determination required by subsection (1) of this section shall complete a written authorization which shall include (a) the date and time the authorization is given; (b) the persons, including the consenting party, expected to participate in the conversation, to the extent known; (c) the expected date, location, and approximate time of the conversation; (d) the reasons for believing the consenting party's safety will be in danger; and (e) the time constraints preventing an application for judicial authorization.

(5) Within a reasonable time but not later than fifteen days after any interception and transmission of a conversation or communication pursuant to this section, the law enforcement agency which made the interception and transmission shall submit a report to a judge of a court having jurisdiction and to the administrator for the courts, which report shall include a copy of the written authorization required by subsection (1) of this section and shall identify (a) the persons, including the consenting party, who participated in the conversation and (b) the date, location, and approximate time of the conversation.

NEW SECTION. Sec. 5. A new section is added to chapter 9.73 RCW to read as follows:

(1) Any information obtained in violation of RCW 9.73.030 or pursuant to an order issued under RCW 9.73.040 shall be inadmissible in any civil or criminal case is all courts of general or limited jurisdiction in this state, except:

(a) For the limited purpose of allowing any person who did not consent to the recording to impeach a witness in any case;

(b) With the permission of the person whose communication or conversation was recorded without his or her knowledge; or

(c) In a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security.

(2) Nothing in this section bars the admission of testimony of a participant in the communication or conversation unaided by information obtained in violation of RCW 9.73.030.

NEW SECTION. Sec. 6. Section 3, chapter 93, Laws of 1967 ex. sess. and RCW 9.73.050 are each repealed.