AN ACT Relating to admissibility of evidence obtained pursuant to interceptions or transmissions of conversations concerning illegal controlled substances without prior judicial approval; amending RCW 9.73.060 and 9.73.090; adding new sections to chapter 9.73 RCW; adding a new section to chapter 2.56 RCW; and prescribing penalties.

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

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

The legislature finds that the unlawful manufacturing, selling, and distributing of controlled substances is becoming increasingly more prevalent and violent. Attempts by law enforcement officers to prevent the manufacture, sale, and distribution of 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 should be intercepted and transmitted in certain circumstances without prior judicial approval in order to protect the life and safety of law enforcement personnel and to enhance prosecution of drug offenses, and that that interception and transmission can be done without violating the constitutional guarantees of privacy.

NEW SECTION. Sec. 2. A new section is added to chapter 9.73 RCW to read as follows:

(1) As part of a bona fide criminal investigation, the chief law enforcement officer of a law enforcement agency or his or her designee above the rank of first line supervisor may authorize the interception, transmission, and recording of a conversation or communication by officers under the following circumstances:

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

(b) The conversation or communication involves 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) Before authorizing an interception under subsection (1) of this section, the agency's chief officer or designee shall prepare a written report indicating:

(a) That there is probable cause for the chief law enforcement officer or designee to believe that the nonconsenting party to the conversation or communication has committed, is engaged in, or is about to commit an offense in subsection (1)(b) of this section, and that this conversation or communication will pertain to an offense described in subsection (1)(b) of this section;

(b) The names of the authorizing and consenting parties;

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

(e) The details of the particular offense or offenses that may have been or may be committed.

The authorization 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.

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

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

(4) An authorization made under this section is valid for no more than three days from the time it is signed by the authorizing officer. 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.

(5) Within fifteen days after any interception and transmission of a conversation or communications 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 which report 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.

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

A monthly report shall be filed by the law enforcement agency with the administrator for the courts indicating the number of authorizations granted, interceptions made and subsequent invalidations. (6) In any subsequent judicial proceeding, evidence obtained through the interception or recording of a conversation is admissible only if:

(a) The court finds that there was probable cause as required by subsection (2)(a) of this section and the evidence is used in prosecuting an offense listed in subsection (1)(b) of this section; or

(b) The evidence is admitted for the limited purpose of impeaching any witness in any case; or

(d) 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 conversation was a victim of the offense; or

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

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

(7) Any determination of invalidity of an authorization under subsection (4) or (6) of this section shall be reported by the court to the office of the administrator for the courts.

Sec. 3. Section 4, chapter 93, Laws of 1967 ex. sess. as amended by section 2, chapter 363, Laws of 1977 ex. sess. and RCW 9.73.060 are each amended to read as follows:

(1) Except as provided by subsection (2) of this section, any person who, directly or by means of a detective agency or any other agent, violates the provisions of this chapter shall be subject to legal action for damages, to be brought by any other person claiming that a violation of this statute has injured his or her business, ((~~his~~)) person, privacy, or ((~~his~~)) reputation. A person so injured shall be entitled to: (a) Actual damages, including mental pain and suffering endured by him on account of violation of the provisions of this chapter, or liquidated damages computed at the rate of one hundred dollars a day for each day of violation, not to exceed one thousand dollars((,)); and (b) a reasonable ((~~attorney's~~)) attorneys' fee and other costs of litigation.

(2) An employee of a law enforcement agency is not liable for damages under this section for acts undertaken in good faith by that employee and with the reasonable belief that the acts were lawful, or for the acts of another employee of the agency. However, this limited immunity is not available to the law enforcement agency.

Sec. 4. 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, except for conversations that may be intercepted, transmitted, and recorded under section 2 of this act, 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. The authorization 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.

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 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.

NEW SECTION. Sec. 5. A new section is added to chapter 2.56 RCW to read as follows:

The office of the administrator for the courts shall, by December 1 of each year, submit to the legislature a report on information received by it under section 2 of this act. The report shall include at least the following: The number of authorizations made; and the number of authorizations under section 2 of this act that are subsequently invalidated.