SENATE BILL REPORT

SB 6146

BYSenators Pullen, Talmadge, Halsan, McCaslin, Rasmussen, Nelson, Anderson and McMullen

Authorizing the interception and recording of certain conversations to protect law enforcement officers.

Senate Committee on Law & Justice

Senate Hearing Date(s):January 18, 1988; January 27, 1988; February 3, 1988

Majority Report:  That Substitute Senate Bill No. 6146 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Pullen, Chairman; McCaslin, Vice Chairman; Halsan, Madsen, Nelson, Talmadge.

Senate Staff:Dick Armstrong (786-7460)

                  February 3, 1988

AS REPORTED BY COMMITTEE ON LAW & JUSTICE, FEBRUARY 3, 1988

BACKGROUND:

Under a federal statute, states may authorize the recording of conversations.  The federal statute sets minimum standards for the restriction of this authorization.  States may be more, but not less restrictive than the federal law in authorizing recordings.  Washington has adopted a privacy law pursuant to the federal statute.

Both state and federal laws begin with a general prohibition against recording any conversation without the approval of all parties concerned.  Each law then makes various exceptions. Washington law differs significantly from the federal law with respect to one of these exceptions, the so-called one-party consent exception.  Under federal law,  any one party to a conversation may record it.  In the same one-party consent situation under state law, the recording can be made only under certain conditions.

Under state law, a one-party consent conversation may be recorded by the police if a district court judge has given prior authorization based on probable cause to believe that the conversation involves a felony.  In addition one-party consent telephone conversations may be recorded by any consenting party and without judicial authorization, if the conversation is part of a series of repeated or anonymous calls or if it involves certain emergencies, a threat or unlawful demand, or a hostage situation.

SUMMARY:

Existing law regarding the recording and transmission of conversations involving illegal controlled substances are modified to recognize the sophistication and escalation of the illegal drug trade in the state.

Prior Judicial Approval -- One Party Consent

If a judge determines there is probable cause to believe a conversation involves the possession or sale of illegal controlled substances and one party to the conversation consents to the recording, then the judge may authorize the recording of the conversation.  The recording may be made even though the name of the nonconsenting party and the time and place for the recording are unknown, if the person and circumstances are described with reasonable certainty.

 No Prior Judicial Approval -- One Party Consent

A conversation involving the possession or sale of illegal controlled substances may be intercepted and transmitted (but not recorded) with the consent of one party to the conversation for the purpose of protecting the safety of the consenting party when there is insufficient time to apply for judicial authorization.

The testimony of a person who overhears the transmitted conversation is admissible in a court of law.

Written authorization for the interception and transmission of the conversation must be completed by the police commander giving various specifics such as location, date, time, names of persons, and circumstances of the drug transaction.

Within 15 days of the interception and transmission of the conversation, a judge must receive a report regarding the intercepted conversation.

EFFECT OF PROPOSED SUBSTITUTE:

Technical changes are made.

Appropriation:    none

Revenue:    none

Fiscal Note:      none requested

Senate Committee - Testified: Rick Jensen, Washington State Patrol; Ron Dionne, Washington State Patrol; Dick Barrett, Seattle Police Guild; Ed Striedinger, Seattle Police Guild; John Ladenburg, Washington Association of Prosecuting Attorneys; Jim Rabie, Washington State Law Enforcement Association; Charlie Marsh, Police Council; Richard Hansen, Washington Association of Criminal Defense Lawyers