CSHB 135(JUD): "An Act relating to use of eavesdropping and recording devices by peace officers."
00CS FOR HOUSE BILL NO. 135(JUD) 01 "An Act relating to use of eavesdropping and recording devices by peace 02 officers." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. FINDINGS AND INTENT. (a) The legislature finds that, in State v. Glass, 05 583 P.2d 872 (Alaska 1978), the Alaska Supreme Court held that a peace officer must obtain 06 a warrant from a judicial officer before monitoring or recording a conversation between an 07 informant and a person being investigated for having committed a crime. In its decision, 08 however, the court acknowledged the possibility of an exception to the warrant requirement 09 under certain circumstances. Glass, supra, at 881, n. 34. The legislature finds that the safety 10 of peace officers conducting undercover investigations is such a circumstance. 11 (b) The legislature finds that, in 1978, undercover peace officers rarely encountered 12 suspects armed with a firearm. However, in the ensuing years, the investigation of certain 13 crimes, particularly drug offenses, has become much more hazardous to peace officers. Drug 14 dealers are usually armed.
01 (c) The legislature finds that it is not always possible to obtain a warrant to monitor 02 a conversation during the beginning phases of an investigation. An officer may have 03 suspicions that do not rise to the level of probable cause, the standard for obtaining a warrant. 04 In order to collect sufficient evidence to obtain a warrant, the officer may have to go 05 undercover, thereby creating risk of harm to that officer. Currently, peace officers are often 06 required to perform undercover investigations of drug offenses and other crimes without 07 adequate backup protection from fellow officers, and in situations where the persons being 08 investigated are commonly armed with firearms. 09 (d) The legislature finds that by prohibiting the recording of monitored conversations 10 and prohibiting the testimony of the monitoring officer regarding the fact that the monitoring 11 occurred or the content of the monitored conversation, the intrusion on an individual's privacy 12 is minor. This minimal intrusion to protect the safety and lives of peace officers is one that 13 society acknowledges is reasonable. 14 (e) It is the intent of this legislation to allow peace officers investigating a crime or 15 making an arrest to wear monitoring devices, so that back-up law enforcement may monitor 16 the investigation and, if a dangerous situation arises, provide help and protection to the 17 undercover officer. 18 * Sec. 2. AS 09.65 is amended by adding a new section to read: 19 Sec. 09.65.215. Immunity of peace officer for use of body wire 20 eavesdropping device. (a) A peace officer who intercepts an oral communication by 21 use of an electronic, mechanical, or other eavesdropping device that is concealed on 22 or carried on the person of the peace officer and that transmits that oral communication 23 by means of radio to a receiving unit that is monitored by other peace officers, or who 24 monitors the receiving unit, is not liable for damages to a person whose oral 25 communication is intercepted if 26 (1) the interception and monitoring occurs 27 (A) during the investigation of a crime or the arrest of a person 28 for a crime; 29 (B) for the purpose of ensuring the safety of the peace officer 30 conducting the investigation or making the arrest; 31 (2) the peace officer who intercepts the oral communication is a party
01 to the communication; and 02 (3) the communication intercepted is not recorded. 03 (b) In this section, 04 (1) "intercept" has the meaning given in AS 42.20.390; 05 (2) "oral communication" has the meaning given in AS 42.20.390; 06 (3) "peace officer" has the meaning given in AS 11.81.900(b). 07 * Sec. 3. AS 12.37 is amended by adding a new section to read: 08 Article 3A. Police Use of Body Wires. 09 Sec. 12.37.400. Police use of body wire. A peace officer may intercept an 10 oral communication by use of an electronic, mechanical, or other eavesdropping device 11 that is concealed on or carried on the person of the peace officer and that transmits 12 that oral communication by means of radio to a receiving unit that is monitored by 13 other peace officers, if 14 (1) the interception and monitoring occurs 15 (A) during the investigation of a crime or the arrest of a person 16 for a crime; and 17 (B) for the purpose of ensuring the safety of the peace officer 18 conducting the investigation or making the arrest; 19 (2) the peace officer intercepting the conversation is a party to the oral 20 communication and has consented to the interception; and 21 (3) the communication intercepted is not recorded. 22 (b) A peace officer monitoring a receiving unit under (a) of this section is not 23 competent to testify in a criminal proceeding involving a party to the oral 24 communication about the contents of the oral communication that was intercepted or 25 the fact that the communication occurred. 26 * Sec. 4. AS 42.20.320(a) is amended to read: 27 (a) The following activities are exempt from the provisions of AS 42.20.300 28 and 42.20.310: 29 (1) listening to a radio or wireless communications of any sort where 30 the same are publicly made; 31 (2) hearing conversation when heard by employees of a common carrier
01 by wire incidental to the normal course of their employment in the operation, 02 maintenance, or repair of the equipment of the common carrier by wire, provided the 03 information obtained is not used or divulged in any manner by the hearer; 04 (3) a broadcast by radio or other means whether it is a live broadcast 05 or recorded for the purpose of later broadcasts of any function where the public is in 06 attendance and the conversations that are overheard are incidental to the main purpose 07 for which the broadcast is then being made; 08 (4) recording or listening with the aid of any device to an emergency 09 communication made in the normal course of operations by a federal, state, or local 10 law enforcement agency or institutions dealing in emergency services, including 11 hospitals, clinics, ambulance services, fire fighting agencies, a public utility emergency 12 repair facility, civilian defense establishment, or military installations; 13 (5) inadvertent interception of telephone conversations over party lines; 14 (6) a peace officer, or a person acting at the direction or request of a 15 peace officer, engaging in conduct authorized by or under AS 12.37; 16 (7) interception, listening, or recording of communications by a peace 17 officer, or a person acting under the direction or request of a peace officer, in an 18 emergency where the communications are received from a device that intercepts the 19 communications of a person 20 (A) barricaded and not exiting or surrendering at the direction 21 or request of a peace officer, in circumstances where there is an imminent risk 22 of harm to life or property; 23 (B) holding another person hostage; or 24 (C) threatening the imminent illegal use of an explosive ; 25 (8) the interception by a peace officer of an oral communication by 26 use of an electronic, mechanical, or other eavesdropping device that is concealed 27 on or carried on the person of the peace officer and that transmits that oral 28 communication by means of radio to a receiving unit that is monitored by other 29 peace officers, if 30 (A) the interception and monitoring occurs 31 (i) during the investigation of a crime or the arrest
01 of a person for a crime; and 02 (ii) for the purpose of ensuring the safety of the 03 peace officer conducting the investigation or making the arrest; and 04 (B) the peace officer who intercepts the oral communication 05 is a party to the communication and has consented to the interception; and 06 (C) the communication intercepted is not recorded .