HOUSE BILL REPORT

HB 1352

BYRepresentatives Baugher, Patrick, Dellwo, Bumgarner, Meyers, Gallagher, Lewis, Rayburn, Padden, P. King, Silver, Schoon, Schmidt, Amondson, Ferguson, Butterfield, Taylor, May, Betrozoff, McLean, Ballard, Brough, Rasmussen, Doty, Hankins, Miller and Fuhrman;by request of State Patrol

Changing provisions relating to criminal activities involving controlled substances.

House Committe on Judiciary

Majority Report:  Do pass.  (12)

      Signed by Representatives Crane, Vice Chair; Appelwick, Brough, Hargrove, P. King, Lewis, Meyers, Moyer, Padden, Patrick, Schmidt and Scott.

Minority Report:  Do not pass.  (4)

      Signed by Representatives Armstrong, Chair; Belcher, Wang and Wineberry.

House Staff:Bill Perry (786-7123)

AS REPORTED BY COMMITTEE ON JUDICIARY FEBRUARY 4, 1988

BACKGROUND:

The state's Privacy Act generally prohibits the interception or recording of any conversation or communication without the consent of all parties concerned.

Washington law has four categories of exceptions to this general prohibition. The first of these involves telephone calls ("wire" communications or conversations) of an emergency, threatening or harassing nature. Such calls may be recorded with the consent of any party to the call. This exception applies to private citizens as well as government officials, and requires no prior authorization of any kind.  The second exception applies only to police, fire and emergency personnel, and allows the recording of incoming calls and arrest procedures. This exception also requires no prior approval.  The third exception applies when a police officer is a party to any an oral conversation involving a felony.  This exception requires that the officer get prior judicial authorization from a judge or magistrate.  The authorization may be by telephone and must be based on probable cause to believe a nonconsenting party to the conversation has or will commit a felony.  The fourth exception applies to conversations in which none of the parties has consented to an interception.  This exception requires the state attorney general or a county prosecuting attorney to get prior authorization (an "ex parte" order) from a superior court judge.  This exception is limited to situations involving national security, threat to human life, arson or riot.

The admissibility of evidence obtained by intercepting or recording conversations is also controlled by the Privacy Act.  Any evidence obtained in violation of the act is inadmissible except in a lawsuit by a person whose privacy rights have been violated, or in a case involving national security.  Generally, evidence obtained in compliance with the act is admissible.  However, evidence gathered pursuant to an ex parte order may be used only in privacy rights violation cases or national security cases.

SUMMARY:

Conversations involving drug transactions may be lawfully recorded with the consent of any party to the conversation.  No judicial authorization is required and the information obtained is admissible.  If the recording party is a law enforcement agency, the director of the agency must authorize the recording in writing indicating location, time, participants and relevance with respect to the conversation.  After a law enforcement recording, the agency director must determine whether the information obtained will be of use in a drug prosecution.  If the information is deemed not to be of such use, it is to be sealed for three years and then destroyed unless unsealed by court order.

The Privacy Act exception for "wire" communications or conversations is expanded to all communications or conversations. This exception includes the already existing categories of emergency, threatening or harassing conversations, and the added drug related conversations.

The rules about admissibility of evidence are changed.  The grounds are expanded upon which information obtained in violation of the law or pursuant to an ex parte order may be admissible.  Such information is admissible to impeach any witness in any case.

Fiscal Note:      Not Requested.

Effective Date:The bill takes effect on July 1, 1988.

House Committee ‑ Testified For:    George Tellevick, WSP; Larry Erickson, Washington Association of Sheriffs and Police Chiefs.

House Committee - Testified Against:      Eugene Chellis, Seattle King County Bar Association; John Midgley, Washington Association of Criminal Defense Lawyers.

House Committee - Testimony For:    The current law is too time consuming for police.  Drug traffickers know the law and how to change time, place and persons involved in drug deals in order to prevent prior judicial authorization for recordings.  Washington State Patrol has never been able to get authorization from a judge by phone.

House Committee - Testimony Against:      The current law is a good balance between citizens' privacy rights and law enforcement needs.  Prior judicial authorization is routinely given and the criteria are broad enough to cover sophisticated drug operations.