AN ACT Relating to limited admissibility, with prior judicial approval, of evidence obtained pursuant to interceptions or transmissions of conversations concerning illegal controlled substances; amending RCW 9.73.090; adding a new section to chapter 9.73 RCW; and creating a new section.

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. 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, 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) A conversation or communication intercepted and transmitted pursuant to subsection (1) of this section may be recorded by any electronic or other device designed to record the conversation or communication regardless of how the device is powered or activated, and contemporaneous written notes or transcriptions of the conversation or communication may be made. No recollection, recording, transcription, or notes of such an interception and transmission are admissible in any civil or criminal case in any court of general or limited jurisdiction in this state, except when introduced with approval of a court and pursuant to court rules and then only (a) with the permission of a party to the conversation or communication who has not consented to the interception or transmission; or (b) in a prosecution for a "serious violent offense" as defined in RCW 9.94A.030 or 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 and transmission was a victim of the offense.

(3) 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; and (d) the reasons for believing the consenting party's safety will be in danger.

(4) Within 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.

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. If any recording or interception is made pursuant to authorization from a judge or magistrate under this subsection and the authorization is subsequently invalidated by a court, the recording or interception may nonetheless be introduced to impeach any party to the communication or conversation provided the application for the authorization was made in good faith.

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 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 period not to exceed seven days.