H. B. 204
(By
Mr. Speaker, Mr. Thompson, and Delegate Armstead)
[By Request of the Executive]
)
____________
[Introduced August 19, 2007; referred to the Committee on the
Judiciary.]
____________
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.