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; 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 unlawful manufacture, sale, and distribution of controlled substances is becoming more prevalent and violent, resulting in increased danger to law enforcement officers engaged in the enforcement of the uniform controlled substances act, and that the interception of conversations between law enforcement officers and persons engaged in such unlawful activity is necessary in certain situations to protect against this increased danger.

Therefore, balancing the constitutional and statutory guarantees of privacy against the need to protect the lives and safety of law enforcement officers, the legislature finds that conversations regarding illegal drug operations may be intercepted, transmitted, and recorded under certain limited circumstances. The purpose of permitting limited interception, transmission, and recording shall be to protect the safety of law enforcement officers in those situations where the need for protection can be demonstrated.

Sec. 2. 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 commence with an indication of the time the recording is beginning and terminate with an indication of the time the recording is ending, and shall be delivered to the court within twenty-four hours of the time the recording was made. 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. If any crime is charged based on the events or communications or conversations recorded, then all related recordings or notes shall be preserved and made available to a defendant or his or her attorney subject to further order of the court.

(3) In each superior court judicial district in Washington there shall be available twenty-four hours a day at least one judge or magistrate designated to receive telephonic requests for authorizations that may be issued pursuant to subsection (2) of this section. The presiding judge in each superior court district shall establish a schedule of rotation for the judges of the courts and magistrates in that judicial district for purposes of ensuring the availability of at least one judge or magistrate at all times. During the period that each judge or magistrate is designated, he or she shall be equipped with an electronic paging device when not present at his or her usual telephone. It shall be the designated judge's or magistrate's responsibility to ensure that all attempts to reach him or her for purposes of requesting authorization pursuant to subsection (2) of this section are forwarded to the electronic page number when the judge or magistrate leaves the place where he or she would normally receive such calls.

(4) 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, 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.

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

((~~(4)~~)) (6) 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. The authorization is valid in other jurisdictions in Washington if unforeseen persons are introduced to the consenting party by the nonconsenting party and if the consenting party is invited by a nonconsenting party to enter another jurisdiction.

NEW SECTION. Sec. 3. A new section is added to chapter 9.73 RCW to read as follows:

(1) If a law enforcement officer is to be the consenting party to a communication or conversation permitted in RCW 9.73.090(2), and if the chief law enforcement officer of a law enforcement agency or his or her designee above the rank of first line supervisor determines that there are specific facts indicating that the safety of the law enforcement officer who is to be the consenting party is in danger, and attempts to contact the judge or magistrate designated in RCW 9.73.090(3) for purposes of obtaining judicial authorization pursuant to RCW 9.73.090(2) are unsuccessful, the agency's chief officer or designee may, for the sole purpose of protecting the safety of the law enforcement officer who is the consenting party, authorize the interception and transmission of 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, 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 notes or transcriptions of the conversation or communication may be made. However, 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;

(b) In a prosecution for a serious violent offense as defined in RCW 9.94.030; or

(c) In a civil action for personal injury or wrongful death arising out of the incident, in which a party who consented to the interception and transmission was a victim of the offense.

(3) Before any interception or transmission of a private conversation or communication pursuant to this section, the agency's chief officer or designee making the determination required by subsection (1) of this section shall complete a written authorization indicating:

(a) That unsuccessful good faith attempts were made to contact the judge or magistrate designated in RCW 9.73.090(2) for authorization for the interception under RCW 9.73.090. The report shall contain specific details regarding the attempted contacts, including:

(i) The name of the designated judge or magistrate whom the agency attempted to contact;

(ii) The exact dates and times of the attempted contacts; and

(iii) The method or methods of the attempted contacts;

(b) The basis for probable cause to believe that a nonconsenting party to the conversation or communication has committed or will commit an offense listed in subsection (1) of this section;

(d) The date the authorization is given;

(e) The identities of the persons, including the consenting party, expected to participate in the conversation, and including the particular person, if known, who may have committed or may commit the offense;

(f) The details of the particular offense that may have been or may be committed;

(g) The expected date, location, and approximate time of the conversation or communication to be intercepted; and

(h) A detailed statement of the reasons for believing that the consenting party's safety will be endangered.

(4) By the end of the next judicial day after any authorization under this section, the law enforcement agency making the authorization shall submit the report required by subsection (3) of this section to the presiding judge of a superior court having jurisdiction over the offense involved and shall mail a copy of the report to the office of the administrator for the courts and to any judge identified in the report. In a multicounty judicial district or in the absence of the presiding judge, the report may be submitted to the court clerk for the presiding judge.

(5) 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 in 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 proceeding;

(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.

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

NEW SECTION. Sec. 4. By December 1 of each year, the office of the administrator for the courts shall, submit a report to the legislature on information obtained under RCW 9.73.090 and section 3 of this act. The report shall include at least the following information:

(1) The number of authorizations made under RCW 9.73.090 and section 3 of this act;

(2) The number of requests for authorization under RCW 9.73.090 and section 3 of this act that were denied; and

(3) The number of authorizations under RCW 9.73.090 and section 3 of this act that were invalidated.

NEW SECTION. Sec. 5. Section 3, chapter 93, Laws of 1967 ex. sess. and RCW 9.73.050 are each repealed.