5545-S AMH APPL SILV 148

SSB 5545 - H AMD TO PSEP COMM AMD (H2327.1/11) 447

By Representative Appleton

NOT CONSIDERED 04/22/2011

Beginning on page 1, after line 2 of the striking amendment, strike all material through "2011." on page 8, line 33 and insert the following:

"NEW SECTION. Sec. 1. A new section is added to chapter 9.73 RCW to read as follows:

(1) As part of a bona fide criminal investigation, the interception, transmission, or recording of a conversation or communication by officers may be authorized under the following circumstances:

(a) At least one party to the conversation or communication has consented to the interception, transmission, or recording;

(b) Probable cause exists to believe that the conversation or communication involves a party engaging in commercial sexual abuse of a minor under RCW 9.68A.100, promoting commercial sexual abuse of a minor under RCW 9.68A.101, or promoting travel for commercial sexual abuse of a minor under RCW 9.68A.102; and

(c)(i) A judge or magistrate has authorized the interception, transmission, or recording of the conversation or communication by officers. 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 must be retained in the court records and reduced to writing as soon as possible thereafter; or

(ii) The chief law enforcement officer of the law enforcement agency or his or her designee above the rank of first line supervisor has authorized the interception, transmission, or recording of the conversation or communication by officers and determined that the nonconsenting party poses a substantial risk of flight.

(2) The agency's chief officer or designee authorizing an interception, transmission, or recording under subsection (1)(c)(ii) of this section shall prepare and sign a written report at the time of authorization indicating:

(a) The circumstances that meet the requirements of subsection (1) of this section;

(b) The names of the authorizing and consenting parties, except that in those cases where the consenting party is a confidential informant, the name of the confidential informant need not be divulged;

(d) The identity of the particular person or persons, if known, who may have committed or may commit the offense;

(e) The details of the particular offense or offenses that may have been or may be committed and the expected date, location, and approximate time of the conversation or communication; and

(f) Whether there was an attempt to obtain authorization by a judge or magistrate pursuant to subsection (1)(c)(i) of this section or RCW 9.73.090(2) and, if there was such an attempt, the outcome of the attempt.

(3) An authorization made by a judge or magistrate under subsection (1)(c)(i) of this section is effective for not more than seven days, after which period the issuing authority may renew or continue the authorization for additional periods not to exceed seven days.

(4) An authorization made under subsection (1)(c)(ii) of this section is valid for no more than twenty-four hours from the time it is signed by the authorizing officer, and each authorization must independently meet all of the requirements of this section. The authorizing officer shall sign the written report required under subsection (2) of this section, certifying the exact date and time of his or her signature. An authorization under subsection (1)(c)(ii) of this section may be extended not more than twice for an additional consecutive twenty-four hour period based upon the same probable cause regarding the same suspected transaction. Each such extension shall be signed by the authorizing officer.

(5)(a) If authorization is granted under subsection (1)(c)(ii) of this section, within twenty-four hours after the signing of an authorization that results in any interception, transmission, or recording of a conversation or communication pursuant to this section, the law enforcement agency that made the interception, transmission, or recording shall submit a report including the original authorization under subsection (1) of this section to a judge of a court having jurisdiction which report must identify:

(i) The persons, including the consenting party, who participated in the conversation; and

(ii) The date, location, and approximate time of the conversation.

(b) In those cases where the consenting party is a confidential informant, the name of the confidential informant need not be divulged.

(c) A monthly report must be filed by the law enforcement agency with the administrator for the courts indicating the number of authorizations granted, the date and time of each authorization, interceptions made, arrests resulting from an interception, and subsequent invalidations.

(6)(a) Within two judicial days of receipt of a report under subsection (5) of this section, the court shall make an ex parte review of the authorization and shall make a determination whether the requirements of subsection (1) of this section were met. Evidence obtained as a result of the interception, transmission, or recording need not be submitted to the court. If the court determines that any of the requirements of subsection (1) of this section were not met, the court shall order that any recording and any copies or transcriptions of the conversation or communication be destroyed. Destruction of recordings, copies, or transcriptions must be stayed pending any appeal of a finding that the requirements of subsection (1) of this section were not met.

(b) Absent a continuation under (c) of this subsection, six months following a determination under (a) of this subsection that probable cause did not exist, the court shall cause a notice to be mailed to the last known address of any nonconsenting party to the conversation or communication that was the subject of the authorization. The notice must indicate the date, time, and place of any interception, transmission, or recording made pursuant to the authorization. The notice must also identify the agency that sought the authorization and must indicate that a review under (a) of this subsection resulted in a determination that the authorization was made in violation of this section.

(c) An authorizing agency may obtain six-month extensions to the notice requirement of (b) of this subsection in cases of active, ongoing criminal investigations that might be jeopardized by sending the notice.

(7) An authorization under this section is valid in all jurisdictions within Washington state and for the interception of communications from additional persons if the persons are brought into the conversation or transaction by the nonconsenting party or if the nonconsenting party or such additional persons cause or invite the consenting party to enter another jurisdiction.

(8) The recording of any conversation or communication under this section must be done in such a manner that protects the recording from editing or other alterations.

(9)(a) In any subsequent judicial proceeding, evidence obtained through the interception or recording of a conversation or communication pursuant to this section is admissible only if:

(i) The court finds that the requirements of subsection (1) of this section were met and the evidence is used in prosecuting commercial sexual abuse of a minor under RCW 9.68A.100, promoting commercial sexual abuse of a minor under RCW 9.68A.101, or promoting travel for commercial sexual abuse of a minor under RCW 9.68A.102;

(ii) The evidence is admitted with the permission of the person whose communication or conversation was intercepted, transmitted, or recorded;

(iii) The evidence is admitted in a prosecution for a serious violent offense as defined in RCW 9.94A.030 in which a party who consented to the interception, transmission, or recording was a victim of the offense; or

(iv) The evidence is admitted in a civil suit for personal injury or wrongful death arising out of the same incident, in which a party who consented to the interception, transmission, or recording was a victim of a serious violent offense as defined in RCW 9.94A.030.

(b) Nothing in this subsection bars the admission of testimony of a party or eyewitness to the intercepted, transmitted, or recorded conversation or communication when that testimony is unaided by information obtained solely by violation of RCW 9.73.030.

(10) Any determination of invalidity of an authorization under this section must be reported by the court to the administrative office of the courts.

(11) Any person who intentionally intercepts, transmits, or records or who intentionally authorizes the interception, transmission, or recording of a conversation or communication in violation of this section, is guilty of a class C felony punishable according to chapter 9A.20 RCW.

(12) An authorizing agency is liable for twenty-five thousand dollars in exemplary damages, in addition to any other damages authorized by this chapter or by other law, to a person whose conversation or communication was intercepted, transmitted, or recorded pursuant to an authorization under this section if:

(a) In a review under subsection (6) of this section, or in a suppression of evidence proceeding, it has been determined that the authorization was made without the probable cause required by subsection (1) of this section; and

(b) The authorization was also made without a reasonable suspicion that the conversation or communication would involve commercial sexual abuse of a minor under RCW 9.68A.100, promoting commercial sexual abuse of a minor under RCW 9.68A.101, or promoting travel for commercial sexual abuse of a minor under RCW 9.68A.102.

Sec. 2. RCW 9.73.240 and 1989 c 271 s 206 are each amended to read as follows:

(1) The attorney general shall have concurrent authority and power with the prosecuting attorneys to investigate violations of RCW 9.73.200 through 9.73.230 and section 1 of this act or RCW 9.73.090 and initiate and conduct prosecutions of any violations upon request of any of the following:

(a) The person who was the nonconsenting party to the intercepted, transmitted, or recorded conversation or communication; or

(b) The county prosecuting attorney of the jurisdiction in which the offense has occurred.

(2) The request shall be communicated in writing to the attorney general."

    EFFECT:   (1) Authorizes law enforcement to record a communication if: (a) At least one party consents; (b) there is probable cause to believe the communication involves Commercial Sexual Abuse of a Minor, Promoting Commercial Sexual Abuse of a Minor, or Promoting Travel for Commercial Sexual Abuse of a Minor; and (c) the recording is authorized by a judge or, if the nonconsenting party poses a substantial risk of flight, the chief law enforcement officer.
    (2) Provides that authorization granted by a judge is valid for seven days, while authorization granted by the chief law enforcement officer is valid for 24 hours.
    (3) Requires that if authorization is granted due to flight risk that the officer submit a report to a judge within 24 hours for review of probable cause.
    (4) Provides that evidence obtained as a result of the recording need not be submitted to the judge.
    (5) Provides other procedures consistent with the statute authorizing recording of communications regarding drug offenses with one-party consent.
    (6) Authorizes the Attorney General to investigate violations of the section.

(7) Removes the delayed effective date.

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