HB 204 Text

H. B. 204

(By Mr. Speaker, Mr. Thompson, and Delegate Armstead)
[By Request of the Executive] )
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[Introduced August 19, 2007; referred to the Committee on the Judiciary.]
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A BILL to amend and reenact §62-1D-3 and §62-1D-9 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §62-1F-1, §62-1F-2, §62-1F-3, §62-1F-4, §62-1F-5, §62-1F-6 and §62-1F-7 all relating to electronic interception of a non-consenting party's conduct or oral communications in his or her home by an investigative or law enforcement officer or an informant invited into said home; providing definitions; requiring court order to perform electronic interception; authorizing law- enforcement to apply for orders; authorizing magistrates and circuit court judges to issue electronic interception orders; setting forth requirements for electronic interception order applications; requiring orders setting forth information; setting forth scope and duration of orders; setting forth procedures for maintaining and disposing of electronic intercepts; requiring recording of electronic intercepts and keeping of related notes; establishing requirements for custody and destruction of said recordings; placing applications and orders under seal; placing restrictions on disclosure and use of electronically intercepted conduct and communications and related information derived therefrom; and providing for electronic intercepts in exigent circumstances subject to subsequent approval.

Be it enacted by the Legislature of West Virginia:
That §62-1D-3 and §62-1D-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §62-1F-1, §62-1F-2, §62-1F-3, §62-1F-4, §62-1F-5, §62-1F-6 and §62-1F-7, all to read as follows:
ARTICLE 1D. WIRETAPPING AND ELECTRONIC SURVEILLANCE ACT.
º62-1D-3. Interception of communications generally.
(a) Except as otherwise specifically provided in this article or article one-f of this chapter, it is unlawful for any person to:
(1) Intentionally intercept, attempt to intercept or procure any other person to intercept or attempt to intercept, any wire, oral or electronic communication; or
(2) Intentionally disclose or intentionally attempt to disclose to any other person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this article; and
(3) Intentionally use or disclose or intentionally attempt to use or disclose the contents of any wire, oral or electronic communication or the identity of any party thereto, knowing or having reason to know that such information was obtained through the interception of a wire, oral or electronic communication in violation of this article.
(b) Any person who violates subsection (a) of this section is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for not more than five years or fined not more than ten thousand dollars or both fined and imprisoned.
(c) It is lawful under this article for an operator of a switchboard or an officer, employee, or provider of any wire or electronic communication service whose facilities are used in the transmission of a wire communication to intercept, disclose or use that communication or the identity of any party to that communication in the normal course of his or her employment while engaged in any activity which is a necessary incident to the rendition of his or her service or to the protection of the rights or property of the carrier of the communication. Providers of wire or electronic communication services may not utilize service observing or random monitoring except for mechanical or service quality control checks.
~~(1)~~(d) Notwithstanding any other law, any provider of wire or electronic communications services, or the directors, officers, employees, agents, landlords or custodians of any such provider, are authorized to provide information, facilities or technical assistance to persons authorized by this article to intercept wire, oral or electronic communication if such provider or its directors, officers, employees, agents, landlords or custodians has been provided with a duly certified copy of a court order directing such assistance and setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities or assistance required. No cause of action shall lie in any court against any such provider of wire or electronic communication services, its directors, officers, agents, landlords or custodians for providing information facilities or assistance in accordance with the terms of any such order.
~~(2)~~(e) It is lawful under this article for a person to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or the constitution or laws of this state: Provided, That electronic interception, as defined in section two, article one-f of this chapter, is lawful under this article if it is undertaken in good faith: (1) for the purpose of investigation and prosecution of a criminal offense under the laws of the United States or this State; and (2) in accordance with the provisions of article one-f of this chapter.
§ 62-1D-9. Lawful disclosure or use of contents of communication.
(a) Any investigative or law-enforcement officer who has obtained knowledge of the contents of any wire, oral or electronic communication or evidence derived therefrom, may disclose the contents to another investigative or law-enforcement officer of any state or any political subdivision thereof, the United States or any territory, protectorate or possession of the United States, including the District of Columbia, only to the extent that the disclosure is required for the proper performance of the official duties of the officer making or receiving the disclosure, however, a record of such disclosure and the date, time, method of disclosure and the name of the person or persons to whom disclosure is made shall be forwarded, under seal, to the designated circuit judge who authorized such interception, or for an interception authorized pursuant to the provisions of article one-f of this chapter, to the magistrate or judge of a circuit court who authorized such interception, who shall preserve said record for not less than ten years. In the event the designated judge under this article shall leave office prior to the expiration of this ten-year period, he or she shall transfer possession of said record to another designated judge. In the event the magistrate or judge under article one-f of this chapter shall leave office prior to the expiration of this ten-year period, he or she shall transfer possession of said record to another magistrate or judge in the circuit.
(b) Any investigative or law-enforcement officer who has obtained knowledge of the contents of any wire, oral or electronic communication or evidence derived therefrom or any investigative or a law-enforcement officer of any state or any political subdivision thereof, the United States or any territory, protectorate or possession of the United States, including the District of Columbia, who obtains such knowledge by lawful disclosure may use the contents to the extent that the use is appropriate to the proper performance of his or her official duties under the provisions of this article or article one-f of this chapter.
(c) Any person who has received any information concerning a wire, oral or electronic communication intercepted in accordance with the provisions of this article, article one-f of this chapter, or evidence derived therefrom, may disclose the contents of that communication or the derivative evidence while giving testimony under oath or affirmation in any criminal proceeding held under the authority of this state or of any political subdivison of this state.
(d) An otherwise privileged wire, oral or electronic communication intercepted in accordance with, or in violation of, the provisions of this article or article one-f of this chapter does not lose its privileged character: Provided, That when an investigative or law-enforcement officer, while engaged in intercepting wire, oral or electronic communications in the manner authorized by this article or article one-f of this chapter, intercepts a wire, oral or electronic communication and it becomes apparent that the conversation is attorney-client in nature, the investigative or law-enforcement officer shall immediately terminate the monitoring of that conversation: Provided, however, That notwithstanding any provision of this article or article one-f of this chapter to the contrary, no device designed to intercept wire, oral or electronic communications shall be placed, or installed or carried in such a manner as to intercept wire, oral or electronic communications emanating from the place of employment of any attorney at law, licensed to practice law in this state.
(e)When an investigative or law-enforcement officer, while engaged in intercepting wire, oral or electronic communications in the manner authorized ~~herein~~ in this article or article one-f of this chapter, intercepts wire, oral or electronic communications relating to offenses other than those specified in the order of authorization, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (a) and (b) of this section. Such contents and any evidence derived therefrom may be used under subsection (c) of this section when authorized or approved by the designated circuit judge where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this article: Provided, That such contents and any evidence derived from electronic interception conducted in accordance with the provisions of article one-f of this chapter may be used under subsection (c) of this section when authorized or approved by the magistrate or circuit judge where such magistrate or judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of article one-f of this chapter. The application shall be made as soon as may be practicable after such contents or the evidence derived therefrom is obtained.
(f)Any law-enforcement officer of the United States, who has lawfully received any information concerning a wire, oral or electronic communication or evidence lawfully derived therefrom, may disclose the contents of that communication or the derivative evidence while giving testimony under oath or affirmation in any criminal proceeding held under the authority of this state.
(g)Any information relating to criminal activities other than those activities for which an order to intercept communications may be granted pursuant to section eight of this article may be disclosed only if such relates to the commission of a felony under the laws of this state, and such information may be offered, if otherwise admissible, as evidence in any such criminal proceeding, but shall not be used for the purpose of obtaining an arrest warrant, or an indictment under laws of this state .
(h)When used in this section in relation to oral or electronic communications intercepted in accordance with article one-f of this chapter, the term "investigative or law enforcement" shall have the same meaning ascribed to it in subdivision four, subsection (a), section one, article one-f of this chapter.
ARTICLE 1F. ELECTRONIC INTERCEPTION OF PERSON'S CONDUCT OR ORAL COMMUNICATIONS IN HOME BY LAW ENFORCEMENT
º62-1F-1. Definitions.
(a)For the purposes of this article, the following terms have the following meanings.
(1) "Body wire" means: (a) an audio and/or video recording device surreptitiously carried on or under the control of an investigative or law enforcement officer or informant to simultaneously record a non-consenting party's conduct or oral communications; or (2) radio equipment surreptitiously carried on or under the control of an investigative or law enforcement officer or informant to simultaneously transmit a non-consenting party's conduct or oral communications to recording equipment located elsewhere.
(2)"Home" means the residence of a non-consenting party to an electronic interception, provided that access to the residence is not generally permitted to members of the public and the party has a reasonable expectation of privacy in the residence under the circumstances.
(3)"Informant" means a person acting in concert with a law- enforcement officer as a witness to or acting as a co-conspirator to any criminal act in violation of the criminal laws of the United States or this State.
(4)"Investigative or law-enforcement officer" means any officer empowered by law to conduct investigations of or to make arrests for offenses enumerated in this code or an equivalent offense in another jurisdiction.
(5)"Electronically intercept" or "electronic interception" mean the simultaneous recording with a body wire of a non- consenting party's conduct or oral communications in his or her home by an investigative or law-enforcement officer or informant who is invited into the home and physically present with the non- consenting party in the home at the time of the recording.
(b)Words and phrases that are not defined in this section, but which are defined in article one-d of this chapter, shall have the same meanings established in article one-d unless otherwise noted.
º62-1F-2. Electronic interception of conduct or oral communications in the home authorized.
Prior to engaging in electronic interception, as defined in section one of this article, an investigative or law-enforcement officer shall, in accordance with this article, first obtain from a magistrate or a judge of a circuit court within the county wherein the non-consenting party's home is located an order authorizing said interception. The order shall be based upon an affidavit by the investigative or law-enforcement officer or an informant that establishes probable cause that the interception would provide evidence of the commission of a crime under the laws of the United States or this State. No such order or affidavit shall be required where probable cause and exigent circumstances exist.
º62-1F-3. Application for an order authorizing interception.
(a) Each application for an order authorizing electronic interception in accordance with the provisions of this article shall be made only to the magistrate or judge of the circuit court by petition in writing upon oath or affirmation and shall state the applicant's authority to make the application. Each application shall set forth the following:
(1) The identity of the investigative or law-enforcement officer making the application, and of the person authorizing the application, who shall be the head of the investigative or law- enforcement agency: Provided, That an application made by a member of the State Police or an officer assigned to a multijurisdictional task force authorized under section four, article ten, chapter fifteen of this code also may be authorized by the supervisor of that member or officer if the supervisor holds a rank of sergeant or higher;
(2) A full and complete statement of the facts and circumstances relied upon by the applicant, to justify his or her belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the home from which the conduct or communications are to be intercepted, unless the identity of the person committing the offense and whose conduct or communications are to be intercepted is known and the applicant makes an adequate showing that there is probable cause to believe that the actions of the person could have the effect of thwarting interception from a specified location, (iii) a particular description of the type of conduct or communications sought to be intercepted, and (iv) the identity of the person, if known, committing the offense and whose conduct or communications are to be intercepted;
(3) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described conduct or communication has been first obtained, a particular description of facts establishing probable cause to believe additional conduct or communications of the same type will occur thereafter; and (4) Where the application is for the extension of an order, a statement setting forth the results obtained pursuant to such order from the interception or a reasonable explanation of the failure to obtain any such results.
(b) The magistrate or judge of the circuit court may require the applicant to furnish additional testimony or documentary evidence in support of the application.
(c)Instead of the application by petition in writing upon oath or affirmation described in subsection (a) of this section, the magistrate or judge may take an oral statement under oath in which the applicant must set forth the information required in subsection (a) of this section. The applicant may swear the oath by telephone. A magistrate or judge administering an oath telephonically under this subsection must execute a declaration that recites the manner and time of the oath's administration. The oral statement shall be recorded and transcribed. The transcribed statement shall be considered to be an application for the purposes of this section. In such cases, the recording of the sworn oral statement and the transcribed statement shall be certified by the magistrate or judge receiving it and shall be retained as a part of the record of proceedings for the issuance of the order.
º62-1F-4. Order authorizing interception.
(a) Upon the application, the magistrate or judge of the circuit court may enter an ex parte order, as requested or as modified or moulded, authorizing an electronic interception if the magistrate or judge determines on the basis of the evidence and argument presented by the applicant that:
(1) There is probable cause to believe that one or more individuals are committing, have committed, or are about to commit one or more crimes under the laws of the United States or this State;
(2) There is probable cause for belief that particular conduct or communications concerning such offense or offenses will be obtained through the interception; and
(3) There is probable cause to believe that the home where the electronic interception is to occur is being used, or is about to be used, in connection with the commission of the offense, or offenses: Provided, That such determination shall not be required where the identity of the person committing the offense and whose conduct or communications are to be intercepted is known, and the applicant makes an adequate showing as required under paragraph (ii), subdivision two, subsection (a), section three of this article.
(b) Each order authorizing an electronic interception in accordance with the provisions of this article shall specify: (i) the identity of the person, if known, whose conduct or communications are to be intercepted, (ii) the nature and location of the home where authority to intercept is granted, if necessary under subdivision three, subsection (a) of this section, (iii) a particular description of the type of conduct or communications sought to be intercepted and a statement of the particular offense to which it relates, (iv) the identity of the law-enforcement officer or officers applying for authorization to electronically intercept and of the officer authorizing the application and (v) the period of time during which the interception is authorized, including a statement as to whether or not the interception automatically terminates when the described conduct or communication is first obtained.
(c) An order entered pursuant to this section may authorize the electronic interception for a period of time that is necessary to achieve the objective of the authorization, not to exceed twenty days. Such twenty-day period begins on the day on which the law- enforcement officer first begins to conduct an interception under the order or ten days after the order is entered, whichever is earliest. Extensions of an order may be granted, but only upon application for an extension made as provided in subsection (a) of this section and upon the magistrate or judge of the circuit court making the findings required by subsection (b) of this section. The period of extension may be no longer than the magistrate or judge deems necessary to achieve the purposes for which it was granted and, in no event, for longer than twenty days. Every order and extension thereof shall contain a provision that the authorization to electronically intercept be executed as soon as practicable, be conducted in such a way as to minimize the interception of conduct or communications not otherwise subject to interception under this article and terminate upon attainment of the authorized objective, or in any event within the hereinabove described twenty-day period relating to initial applications.
º62-1F-5. Recording of intercepted communications.
(a) The contents of any conduct or oral communications electronically intercepted shall be recorded on tape or wire or other comparable device and done in such a way or ways as will protect the recording from editing or alterations thereto.
(b)Whenever practicable, the investigative or law enforcement officer overseeing the recording of an electronic interception shall keep a signed, written record of:
(1)

The date and hours of the surveillance;

(2)

The time and duration of each electronic interception;

(3)

The participant, if known, in each electronic interception; and

(4)

A summary of the content of each intercepted communication.

(c)Immediately upon the expiration of the period of time during which interception and recording is authorized by the order, or extensions thereof, such recordings shall be made available to the magistrate or judge issuing such order. Custody of the recordings shall be with the law-enforcement officer authorizing the application underlying the order. Such recordings may not be destroyed except upon an order of the magistrate or judge to whom application was made or a circuit judge presiding over any subsequent prosecution related to the electronic interception and in any event shall be retained for a period of ten years or until conclusion of a prosecution related to the interception, post habeas corpus proceeding and decision, whichever is earlier. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (a) and (b), section nine, article one-d of this chapter for investigations by law-enforcement agencies.
º62-1F-6. Sealing of applications, orders and supporting papers.
Applications made and orders granted under this article shall be ordered sealed by the magistrate or judge of the circuit court to whom the application is made, and shall remain in the custody of the magistrate or judge. The applications and orders may be disclosed only upon a showing of good cause and may not be destroyed except upon order of such magistrate or judge and in any event shall be kept for not less than ten years. In the event the magistrate or judge shall leave office, he or she shall transfer possession of said applications and orders to his or her successor or another magistrate or judge of the circuit court.
º62-1F-7. Emergency orders.
Notwithstanding any other provision of this article, when (1) a situation exists with respect to engaging in electronic interception before an order authorizing such interception can with due diligence be obtained;(2) the factual basis for issuance of an order under this article exists; and (3) it is determined that exigent circumstances exist which prevent the submission of an application under section three of this article, conduct or oral communications in the person's home may be electronically intercepted on an emergency basis if an application submitted in accordance with section three of this article is made to a magistrate or judge of the circuit within the county wherein the person's home is located as soon as practicable, but not more than three business days after the aforementioned determination. If granted, the order shall recite the exigent circumstances present and be retroactive to the time of such determination. In the absence of an order approving such electronic interception, the interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earliest.

NOTE: The purpose of this bill is to require law enforcement to obtain judicial authorization prior to sending an investigative or law enforcement officer or informant working with law enforcement to surreptitiously intercept a person's conduct or oral communications in the person's home with a body wire.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added. §62-1F-1, §62-1F-2, §62-1F-3, §62-1F-4, §62-1F-5, §62-1F- 6 and §62-1F-7 are new, therefore, strike-throughs and underscoring have been omitted.

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