Legislature(1999 - 2000)
04/21/1999 01:10 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 135 - POLICE USE OF EAVESDROPPING DEVICES
CHAIRMAN KOTT announced the next order of business is HB 135, "An
Act relating to use of eavesdropping and recording devices by peace
officers."
Number 1045
PAT HARMAN, Legislative Administrative Assistant to Representative
Pete Kott, Alaska State Legislature, came before the committee to
present the sponsor statement. He said social changes have
occurred since the State v. Glass (1978) decision over two decades
ago. Illegal drugs are now a major social issue. Violence and
potential violence is a major concern to law enforcement because
drug dealers are usually armed. This bill is for peace officer
safety. It would allow an officer to wear a wire without a warrant
for purposes of safety. It would allow backup officers to monitor
a conversation and come to the rescue if an officer's safety is at
risk. Presently, they use hand signals or other visual signals to
call for backup. However, many conversations are out of sight of
the backup and requires this bill to improve an officer's safety.
He noted that the following restrictions are included:
- The monitoring can only occur during the investigation
or arrest of a person for a crime and if that officer is
a party to that conversation;
- It must be for the safety of the officer;
- The conversation cannot be recorded; and
- The backup officer(s) may not testify in a criminal
proceeding involving the content of the conversation or
that it actually occurred.
MR. HARMAN further noted that there are constitutional issues that
need to be discussed which can only be resolved by the courts. The
issue for this committee is whether or not officer safety is
important enough to test its constitutionality, if it were to
become law. The American Civil Liberties Union has submitted an
amendment that the sponsor agrees with. He explained that page 2,
line 23, would be changed to read, "communications and consented to
the interception," which means that an officer would have to
consent to wearing a wire. In other words, a peace officer could
not be required to wear a wire.
Number 1229
CORY WINCHELL, Administrative Assistant to Representative Pete
Kott, Alaska State Legislature, came before the committee to
discuss the legal and constitutional issues of the bill. He noted
that the seminal case on point is State v. Glass. In Glass, the
police used a wiretap and sought to admit it as evidence. The bill
does not seek to do that, however. It is solely for the safety of
peace officers. Mr. Winchell further noted that in Glass the court
grappled with the issue of privacy. It talked a lot about the
supreme court decisions, particularly Justice Harlan's decision on
an expectation of privacy and a reasonable belief that privacy is
there. The court adopted that rationale. It also said that the
state has the right to extend rights of privacy further than what
the supreme court did. He referred to page 9, of the Glass
decision, and read the following:
"Legitimate interests of law enforcement authorities,
however, may generally be met in the same manner as in
other searches and seizures. In the absence of limited
exceptions, a search warrant should be obtained from an
impartial magistrate, based on probable cause to believe
that criminal activity will be discovered, before
electronic monitoring of conversations should be allowed.
It may be that, as in other search and seizure contexts,
the requirement of a warrant may be obviated under
exigent circumstances. We withhold passing on that issue
until presented with a specific case."
MR. WINCHELL noted that the bill would be the case. It would
probably wind its way up the courts. The exigent circumstance is
officer safety. In addition, the person listening to the
electronic communication cannot testify as to any of the matters.
Number 1428
REPRESENTATIVE JAMES said this all sounds well and good for officer
safety, but once a person hears something, she wonders how there
can be assurance that it is not used for other reasons.
Number 1461
MR. WINCHELL stated it is a policy call that this committee and the
legislature have to make. He informed Representative James that
this is being limited to the safety of peace officers.
Number 1489
REPRESENTATIVE JAMES asked Mr. Winchell to show her the language.
MR. WINCHELL replied the language is in Section 2(b) - "(b) A peace
officer monitoring a receiving unit under (a) of this section is
not competent to testify in a criminal proceeding involving a party
to the oral communication about the contents of the oral
communication that was intercepted or the fact that the
communication occurred." The officer who is bugged can testify,
write a report, or swear upon an affidavit. After all, it is a
face-to-face conversation.
Number 1552
REPRESENTATIVE JAMES said that isn't the scenario she is worried
about. She is worried about somebody listening to a recording when
an officer is shot and killed. That person can't tell anybody, but
he will.
MR. WINCHELL said there is a theory called the, "fruit of the
poisonous tree." If a person hears incriminating words that lead
to evidence further on, that evidence can be excluded based on that
theory, and a good defense attorney would argue and protect a
person under that doctrine.
Number 1638
REPRESENTATIVE JAMES said therein lies the problem in the current
legal system - utilizing the truth, but it can't be told. That is
one of the reasons the public has so much discomfort with the
decisions that come out of the courts. She sees some real problems
by opening this door and at the same time keeping it shut to the
room in certain circumstances that are not necessarily good for
society.
Number 1671
MR. WINCHELL stated other states permit this, but Alaska has a
right of privacy that is a little bit higher than other states in
the union, which the supreme court recognized as important in
Glass. At this point, our hands are tied, unless there is a
constitutional amendment sweeping away that right.
Number 1701
REPRESENTATIVE CROFT confirmed that whether the Glass decision says
it can't be done or whether it can't be used as evidence.
MR. WINCHELL read the following:
"One argument advanced is that bugging aids in
safeguarding informants. This may be questionable since
the presence of electronic devices on the informant may
add to his risk, because sophisticated 'anti-bugging'
technology may disclose the presence of the device or it
may otherwise be discovered. In any event, New Hampshire
has met that contention by holding that a statute which
permits participant monitoring does not permit the
introduction at trial of a tape recording of a
conversation transmitted by such a device. The court
held that the purpose of the statute's exception was to
allow police officers to protect the undercover officer
and that monitoring for purposes of rescue was not
equivalent to monitoring for purposes of introduction of
the conversation at trial." [n34 of Glass]
MR. WINCHELL noted that is exactly what the bill is trying to do.
The bill is asking the court to recognize that there are exigent
circumstances for the safety of peace officers.
Number 1782
REPRESENTATIVE CROFT stated the case from New Hampshire has a rule
like Glass, but the court said that their statute is okay because
it doesn't require using it.
MR. WINCHELL said their statute permits participants to monitor [a
conversation] for safety reasons as long as they don't introduce
the tape in a trial.
Number 1806
REPRESENTATIVE CROFT clarified that whether the State v. Ayers case
[State v. Ayers, 118 N.H. 90, 383 A.2d 87, 88 (N.H. 1978)] was a
question of statutory interpretation rather than a constitutional
limitation.
MR. WINCHELL replied it is the same kind of case that would come
down the pipe, if the bill passed out of the committee.
REPRESENTATIVE CROFT referred to the State v. Brackman case [State
v. Brackman, 582 P.2d 1216 (Mont. 1978)] and noted that at least
Montana has the same rule that Alaska does in Glass.
MR. WINCHELL replied the case held that privacy protections were of
such a large degree that it was distinguished between federal case
law and other states such as California. The bill asks, as a
matter of policy, for the legislature to empower peace officers to
protect themselves.
Number 1843
REPRESENTATIVE CROFT wondered why a statute is needed to do this.
Glass is an evidentiary limitation. He asked Mr. Winchell whether
he agrees that peace officers can wear a wire now; they just can't
use it as evidence.
Number 1864
MR. WINCHELL replied perhaps peace officers can wear a wire now,
but it might incur civil liabilities for constitutional violations.
Number 1894
REPRESENTATIVE CROFT asked Mr. Winchell why this should be exempted
from the warrant requirements. This arguably is the right thing to
do for the safety of officers, but these are planned setups. There
is plenty of time to go to a judge and get a warrant.
Number 1933
MR. WINCHELL replied it would streamline the system, perhaps to the
detriment of rights. But, if peace officers have to go to a
magistrate every time [to get a warrant] for a buy, they would
flood the magistrates. Yes, they have to do it anyway. The bill
just says that it would not be used for evidence.
Number 1962
REPRESENTATIVE CROFT said: "So, they can do it now. They just
have to get a warrant to do it."
MR. WINCHELL replied yes a Glass warrant.
REPRESENTATIVE CROFT noted that it is standard enough now to even
have a name - Glass warrant.
MR. WINCHELL noted that there is worry about the propensity of
violence. He reiterated the gist of the bill is for the safety of
peace officers.
Number 1987
CHAIRMAN KOTT stated when he introduced the bill there was
discussion from the Municipality of Anchorage that some of the
courts do not go along with it and some do, therefore,
clarification is needed on whether or not this is legal. In
addition, there are special circumstances that do not allow an
officer to go to a magistrate. For example, there are unusual
types of things that occur on the spur of the moment when there
isn't time to get a Glass warrant.
Number 2038
MR. WINCHELL noted that the court recognized in Glass the existence
of AS 11.60.290. He's not sure whether that statute is still on
the books, however. It is unlawful to eavesdrop, and an officer
shouldn't be subjected to those kinds of problems.
Number 2077
REPRESENTATIVE GREEN referred to a rendering by Judge Sigurd Murphy
- a judge that he holds in high regard - and stated a person can
never be sure about how a judge may come down on something. He
can, therefore, see why there is this kind of "belt-and-suspenders"
approach to protect an officer. He asked Mr. Winchell to address
Representative James' concern regarding a murdered officer.
Number 2108
MR. WINCHELL replied, if an officer is murdered and somebody is
listening on the other end, that testimony can be used if a
compelling state interest is shown. Baring that, other types of
evidence would have to be used to prove that a murder occurred. He
reiterated the bill is trying to comply with the constitutional
right to privacy and the Glass decision.
Number 2160
CHAIRMAN KOTT noted that's how people commit homicides and "get off
the hook."
Number 2165
REPRESENTATIVE KERTTULA said there are many, many exceptions to
hearsay, which is one of the problems here, but the fundamental
rule of the constitution is started out with, which is freedom from
unreasonable searches.
MR. WINCHELL said it's unreasonable searches and an express right
to privacy.
REPRESENTATIVE KERTTULA referred to the language - "(8) the making
by a uniformed peace officer of an audio recording in conjunction
with the video recording of traffic and other law enforcement
patrol contact;" - and stated it seems to go off on a different
tangent.
Number 2217
MR. WINCHELL replied when he read that portion he thought of a
"COPS" show on television. He doesn't know whether routine traffic
stops are so important and dangerous that they need to be carved
out as an exception.
Number 2240
REPRESENTATIVE KERTTULA said she can see the intent of the bill,
but this went off on another tangent. She isn't real clear on
whether it might or might not cause damage to the intent of the
rest of the bill.
Number 2266
REPRESENTATIVE MURKOWSKI stated this is a crazed world anymore. An
officer can respond to a domestic violence call, for example, and
get "nailed." She asked Mr. Winchell, in recognizing the concern
of the safety of officers, how can we keep from going down a
slippery slope. In other words, what's to stop an officer from
saying anytime he puts his badge on he is in a life threatening
situation?
MR. WINCHELL replied one response is the vigilance of the
legislature and a decision not to walk down that slippery slope.
The other response is in trusting the prosecutors and peace
officers. There has to be hope and trust that the peace officers
would act accordingly, and when they don't, that the court systems
would pick it up.
CHAIRMAN KOTT opened the meeting to public testimony.
Number 2370
DUANE UDLAND, Chief, Anchorage Police Department, testified via
teleconference from Anchorage. He is also president of the Alaska
Chiefs of Police Association. He thanked the sponsor for bringing
the bill in. This is an important issue for law enforcement. He
noted that twenty-five years ago, when doing undercover work,
officers rarely came upon guns. Now, it's almost the norm. The
nature of the business has changed and it has become more violent
out there. This issue is near and dear to the working cops out on
the streets.
CHIEF UDLAND further stated, in response to Representative James'
frustration with the limitations of the statute, officers are stuck
with the boundaries where the supreme court has already ruled. In
response to Representative Croft, as far as the existing statutes
are concerned, he has looked at that for years, and the district
attorney has always recommended that the law is not clear enough
and that peace officers would be committing a misdemeanor if safety
wires were used. Therefore, universally, peace officers across the
state have not used safety wires. He does not let his officers
wear safety wires, under the current law, knowing that they may be
committing a misdemeanor. In reference to the question of getting
warrants now and just continuing to do so, sometimes there isn't
enough information to get one. Often times, officers go out and
make a drug-buy to establish probable cause then go get a Glass
warrant. And, unfortunately, an officer can't wear a safety wire
on that first buy requiring officers to go in cold without any
resources or monitoring of what's going on around them. He noted
that this is not just limited to drug-buys...
TAPE 99-36, SIDE B
Number 0001
CHIEF UDLAND continued. There are decoy officers, such as women
officers dressed as prostitutes, that cannot be monitored. If a
"John" pulls up and puts a gun to that officer's head, they would
not be able to hear any of that transaction making it very
difficult to protect that officer. In reference to Representative
Murkowski's [Kerttula's] concern regarding traffic, officers share
the same concern. He's not sure why it should be in statute. The
law is already very clear on videotaping and electronically
monitoring conversations with a uniformed officer performing his
duties when a person knows that he is dealing with a peace officer.
Personally, he would like to see that language taken out. In
regards to the slippery slope concern, he agrees with the comments
made in terms of trusting peace officers, but the reality is an
officer can wear a recorder now while performing his duties. The
peace officers are asking to wear that recorder when there's danger
and where a person doesn't know that they are officers, which
inherently involves undercover work and a lot of risk. The peace
officers are asking that the legislature take a look at this. They
fully expect this to be litigated, and hopefully, there will be a
favorable ruling. He would be happy to answer any questions.
Number 0070
REPRESENTATIVE CROFT asked Chief Udland whether officers have tried
to apply for a safety Glass warrant to wear a wire going into a buy
that is possibly dangerous with a magistrate.
CHIEF UDLAND replied he can't say that there hasn't been a peace
officer who tried that approach. He said:
"The problem is, you know, say you are a citizen and you call
us, you think that there is dope activity going on in a house
down the street. And, that's about all you know. You just
know that you have cars coming and going late at night and you
see a bunch of strange people hanging around there all the
time stopping in for brief moments. And, that's all the
information you have. Well, that probably describes a dope
house or crack house of some sort. I don't know what
information we could possibly develop based on that to tell a
magistrate that we think we've got a dangerous situation and
we need a safety warrant. There's no authorization for, in
the current law, for safety warrant. And, so it looks like
the dilemma that in order to get information we have to go up
to the house, and believe it or not a lot of the cases we make
are just on situation I outlined where an officer walks up and
knocks on the door and says, 'Hey, I heard you're selling
dope. Anybody buying dope?' And, then we go back and then we
get a warrant to do what we call a Glass warrant so we can get
a recorded buy. And, then we go back with that first--that
first contact with the crack house that we simply there's not
enough information to articulate so, even if there was an
allowance for a safety wire I don't know how we would ever
develop the information, you know, to be able to articulate
before a magistrate."
Number 0140
REPRESENTATIVE CROFT said that's an interesting distinction. It
doesn't have to rise to the level of a full probable cause. It can
be crafted however. While he can see how it would be difficult to
articulate a probable cause standard, he asked Chief Udland whether
there is some other standard that could be included to justify the
danger. There are lower standards - reasonable suspicion or
articulated facts justifying a danger.
Number 0173
CHIEF UDLAND suggested the language, "upon the belief of the police
officer." He doesn't see the need to do that, however, because of
the prostitute example mentioned earlier. Would an officer have to
have a wire warrant for every citizen that was in a car that
stopped to talk to the decoy based on fear? He doesn't know what
the standard would be and it seems somewhat impractical.
Number 0198
REPRESENTATIVE KERTTULA asked Chief Udland what situations this
would have helped with in the past. She also asked what would
change with this.
CHIEF UDLAND replied it would change any times in the past and
present where officers are being sent into situations that are
dangerous. "We" are asking officers now to go into a dangerous
situation without backup and monitoring, which goes on every day
across the state, particularly with drug investigations. More
times than not, when knocking on that hypothetical house he
mentioned earlier, some form of weapon is found and that house
later ends up being searched with a warrant. He reiterated "we"
are sending officers into those situations without any protection
knowing that they are at great risk. This bill would fix that.
This is not unusual. A lot of states and the federal government
get by just fine allowing this. The Glass decision never really
anticipated the direction that violence has taken in this country.
Number 0261
REPRESENTATIVE KERTTULA said she understands what he is saying and
she certainly respects and admires peace officers. She noted that
everything is done to protect officers, therefore, she is concerned
about the vigilance in terms of it becoming a reliance on
monitoring rather than actually watching the officer. She is
trying to think of a concrete example where this would have helped
in terms of stopping violence towards an officer. She agrees with
Representative Murkowski that an officer can face a violent
situation on a simple call.
Number 0291
CHIEF UDLAND replied a uniformed officer can wear a tape recorder
right now on a call. He is talking about undercover work where
people don't know that the person is an officer. Every day peace
officers are going behind closed doors into potentially dangerous
situations and nobody is able to monitor them for safety. If an
officer goes into an apartment and a gun is pulled to him, the
backup officers have no idea what is taking place.
Number 0341
REPRESENTATIVE ROKEBERG asked Chief Udland what misdemeanor would
an officer be breaking if that officer wore a safety wire.
CHIEF UDLAND replied that officer would be breaking a misdemeanor
in AS 42.20.300 - "Unauthorized publication or use of
communications."
Number 0367
DAVID HUDSON, First Sergeant, Division of Alaska State Trooper,
Department of Public Safety, testified via teleconference from
Anchorage. He is not here to talk about the legal issues. He is
here to talk about officer safety. In 1993 and 1994, he worked in
a combined task force with the Anchorage Police Department. During
that time frame, he worked on one of the largest heroin cases ever
held in Alaska. He noted that often times, there isn't time in a
drug case to develop appropriate probable cause - because of its
tempo - to go before a magistrate in order to get a Glass warrant.
He cited an example of buying heroin in Spenard [Anchorage] in
January. It was extremely hard to stay close to his partner. He
was not in sight or hearing range of him when he would go into a
particular house for a buy. They had decided beforehand how long
to stay in a particular place. It was an extremely tenuous
situation and often he would proceed to locate his partner. He
noted that, in these types of cases, the dynamics change very
rapidly. In addition, the bad guys recognize the procedures. They
watch "COPS" just like everybody else. They realize that it takes
time to set up an operation and to do other things. They naturally
want to avoid getting caught, so they often change locations,
directions, names and places rapidly. "We don't have time to do
all the things that you see in 'COPS' where they set up a raid team
and they get backup and they do all this other stuff." He has been
in places in Anchorage during the winter where a gun shot could
have gone off and his partner and backup would not have heard it.
They were in locales that weren't close enough to visually watch
him or touch him. He thanked Representative Kott for taking the
initiative on this issue. He would be glad to answer any
questions.
Number 0540
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency, Department of Administration, testified via teleconference
from Anchorage. The agency is concerned with the bill because it
believes that it is unconstitutional. It is a difficult legal
area. In a wiretapping situation, "A" is talking to "B" and
someone who is not a party to the conversation, "C," taps in and
listens to the conversation. In a situation that the bill targets,
"A" is talking to "B," and "B" consents to a recording and/or to
broadcasting the conversation, which is not illegal under the
federal constitution or under most state constitutions. He cited
in Vermont and Massachusetts their supreme courts have ruled that
it violates the right to privacy when done in a home. The Glass
case is older and has recently been reaffirmed in a case that
involves a slightly different fact-pattern - State v. Page.
MR. McCUNE noted it is important to understand what can be done
now. If an officer identifies him or herself as a peace officer,
that officer can tape or broadcast with or without the consent of
the person being contacted. That was made possible by a decision
in the City and Borough of Juneau v. Quinto case [684 P.2d 127
(Alaska 1984)]. In addition, if an officer has probable cause,
that officer can get a Glass warrant for participant monitoring.
The legislature has made a lot of changes to the statute for the
judiciary to issue a warrant. For example, it can be issued over
a telephone with telephonic testimony - AS 12.35.015. In addition,
he noted that the statute refers to peace officers and stated that
there are special commissioned peace officers and he's not certain
whether they would be covered. They are not regular peace
officers, but people who are brought in specifically for drug
undercover work. The basic concern is the right of privacy, of
going into a person's home without probable cause by an undercover
agent. In reference to the "fruit of the poisonous tree doctrine,"
if an officer monitors a conversation, it is questionable whether
or not that information can be used to develop further leads and
probable cause. It could taint a further warrant, even though the
information was clear. In conclusion, he echoes the concern of the
fact that there are more dangerous situations today. Other
societies have taken steps to de-arm their citizens rather than
going after constitutional rights. That's probably not a popular
thing to say these days, but there are other ways to deal with
safety concerns.
Number 1007
REPRESENTATIVE CROFT said he's not sure that he buys the "fruit of
the poisonous tree doctrine." He asked Mr. McCune how is it
materially different from an officer who heard something live
versus an officer who heard it outside.
Number 1047
MR. McCUNE replied it's a situation where "A" and "B" are talking
together and "C" overhears the conversation. "B" can certainly go
to a magistrate and furnish probable case for a warrant. But, it's
against the constitution for "C" who overheard the conversation to
go to a magistrate and furnish probable cause for a warrant.
Number 1122
REPRESENTATIVE KERTTULA said one of the problems is the issue of
whether or not a person could have gotten a warrant. There'll be
a lot of challenges to whether or not an officer wore a wire for
safety reasons.
Number 1149
REPRESENTATIVE ROKEBERG said, he thought, the question is whether
the probable cause is issued by one of the witnesses to the event.
He wondered how getting a Glass warrant after the fact would be
tainted.
Number 1187
CHAIRMAN KOTT questioned Mr. McCune as to whether there is a
distinction between the Page and Glass cases because the bill
requires an officer to wear a recording device on his person. The
circumstances were not the same in Page. A bugging device planted
in a wall would clearly be unconstitutional.
Number 1222
MR. McCUNE replied in Page a video camera was set up with the
consent of one of the participants. It is distinguishable, but the
courts looked at the people who set up the video camera as agents
and closely associated with one of the participants. The case went
to the supreme court and Chief Justice Warren W. Mathews provided
a long legal opinion on participant monitoring, which is a real
primer and good source of information for the committee to
consider.
CHAIRMAN KOTT asked Mr. Gerald Luckhaupt [Attorney, Legislative
Counsel, Legislative Legal and Research Services, Legislative
Affairs Agency] to clarify the inclusion of an officer using audio
recording in conjunction with video recording.
Number 1340
GERALD LUCKHAUPT, Attorney, Legislative Counsel, Legislative Legal
and Research Services, Legislative Affairs Agency, came before the
committee to answer questions. He noted that the language was
included based on discussion with staff. He didn't want to make it
seem that the legislature was finding a practice - that is now
legal and constitutional - illegal. Currently, uniformed officers
can secretly tape-record conversations with suspects. Even if they
aren't in uniform, if they are known to the person they are talking
to as a police officer, they can secretly tape-record and video
tape conversations. The addition of the language talks about how
undercovered officers can do this without authorizing the
activities that the supreme court and court of appeals have found
to be legal and constitutional. This line of thought came to him
from a footnote in Glass which excluded surreptitious tape
recordings by peace officers, not on a constitutional ground, but
because it was excluded from a statute like AS 42.20.300. Because
of Glass, any amendments made to the statute could be argued as
illegal, therefore, he felt it was necessary to put that language
in to authorize those activities.
Number 1534
REPRESENTATIVE CROFT asked Mr. Luckhaupt why doesn't the language
- "(6) a peace officer, or a person acting at the direction or
request of a peace officer, engaging in conduct authorized by or
under AS 12.37" - take care of that.
MR. LUCKHAUPT replied AS 12.37 is the wiretapping statute. Maybe,
it is something that he overlooked. It is a different level of law
and probable cause and a warrant is required for a wiretap.
Number 1580
REPRESENTATIVE CROFT asked Mr. Luckhaupt why does it need to be
repeated because Section 2, of the bill, puts this instance in AS
12.37.
MR. LUCKHAUPT replied, "We may not. Now that I think about it."
There may be a way around that. He noted that subparagraph (6) may
need to be amended to indicate that a warrant is not required for
these types of activities.
Number 1635
REPRESENTATIVE CROFT asked Mr. Luckhaupt why Glass warrants aren't
misdemeanors now.
MR. LUCKHAUPT replied they aren't misdemeanors now because of the
supreme court decision. He doesn't know whether that decision has
been codified, however. There were changes made in the wiretapping
law to accommodate the Glass decision, which is why it is unique to
Alaska. He noted that it is participant-monitored activities, so
they would not be illegal.
Number 1719
REPRESENTATIVE CROFT said it seems that AS 42.20.310
["Eavesdropping"] is clear. A person may not use an eavesdropping
device, and there is no exception for police conduct (indisc.) a
warrent. He questioned whether every Glass warrant has been
violating this statute for twenty years.
MR. LUCKHAUPT said he doesn't know. He would have to think about
that.
REPRESENTATIVE CROFT said it could be true, but there isn't a
district attorney in the world who would prosecute an officer that
had a warrant to wear a wire as part of his duties.
Number 1813
REPRESENTATIVE KERTTULA asked Mr. Luckhaupt to look into the
eavesdropping exemption in AS 42.20.320(a)(4) as well. It looks
like the situations being discussed might already be covered, and
maybe, it's something that hasn't been utilized.
Number 1885
MR. LUCKHAUPT referred Representative Croft to AS 42.20.300(a), in
response to his question regarding an officer who is transmitting
pursuant to a Glass warrant. The officer who has a Glass warrant
is doing the transmitting and assisting others in receiving,
therefore, he would not be subject to prosecution. The supreme
court requires an officer to get a warrant under Glass, if that
officer is undercover and not known to the person he is speaking to
as a peace officer. That does not clearly exempt the parties
listed, so he can see the concern of Representative Croft.
Number 1955
REPRESENTATIVE CROFT asked Mr. Luckhaupt why the exceptions in the
bill do not talk about covers. He referred to AS 12.37.
MR. LUCKHAUPT noted that AS 12.37 is the wiretapping statute, which
requires a different type of warrant to engage in that activity.
When the statute was written, the drafters didn't want to tie them
together.
Number 2009
REPRESENTATIVE CROFT asked Mr. Luckhaupt whether there is any
statutory section that codifies Glass warrants.
MR. LUCKHAUPT replied no.
Number 2026
REPRESENTATIVE KERTTULA asked Mr. Luckhaupt whether the exemption
in AS 42.20.320(a)(4) reaches the same result.
MR. LUCKHAUPT replied that was added about two years ago to allow
law enforcement to tap into a phone during a hostage situation. It
doesn't apply to anything at all in this bill. He cited a hostage
situation, a barricade, and imminent illegal use of an explosive as
examples. That operates as an exemption in the normal wiretapping
statute as well. It basically codifies exemptions that other
courts have found to be exigent circumstances, and have recognized
police activities to intercept those types of communications as
warranted due to the danger to the public.
Number 2170
REPRESENTATIVE KERTTULA clarified that whether an officer can
already monitor in those types of situations.
MR. LUCKHAUPT replied the exemptions apply by meeting the
subparagraphs - AS 42.20.320(a)(b) and (c).
REPRESENTATIVE KERTTULA noted that she is reading the section a
little bit more broadly than Mr. Luckhaupt, particularly AS
42.20.320 (a)(4).
MR. LUCKHAUPT stated he reads AS 42.20.320 (a)(4) as the
communications that are not being made by a law enforcement agency.
He has not seen that exemption applied towards allowing an officer
to use a wiretap, which is why he added the other statute in order
to allow wiretapping in these emergency situations.
Number 2375
REPRESENTATIVE KERTTULA questioned Mr. Luckhaupt as to whether
there has been any court case since this exemption was put in
place.
MR. LUCKHAUPT replied not in Alaska.
Number 2420
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, came before
the committee to testify. The Glass decision specifically states
that the monitoring or recording of private conversations without
a warrant violates the constitution - Article 1, Section 14; and
Article 1, Section 22. The decision was more than evidentiary; it
was a decision based on a person's right to privacy, which has a
higher protection under the state constitution than the federal
constitution and many other state constitutions...
TAPE 99-37, SIDE A
Number 0001
MS. CARPENETI continued. The Ayers decision found that monitoring
for the safety of police officers is okay, but the use of the
evidence is not. The department would suggest, as one way to help
litigate this in court, adopting specific legislative findings that
repeat what Chief Udland has said regarding the times since the
Glass decision was handed down. Life has changed since then in
this state and the country. Certain investigations are a lot more
dangerous.
MS. CARPENETI further stated that one thing to consider is an
individual coming into an officer's automobile and having the
conversation recorded even though the wire is not on the officer's
person, but in the car itself. That would not be allowed under the
bill as it is presently drafted.
Number 0187
CHAIRMAN KOTT asked Ms. Carpeneti whether she is talking about a
privately owned automobile or a black-and-white police automobile.
MS. CARPENETI replied she is talking about an unmarked police
officer's car.
CHAIRMAN KOTT said, so a person wouldn't know it was a police
officer.
MS. CARPENETI said right.
MS. CARPENETI referred to Section 3(8), of the bill, and stated the
department would recommend that it not be included. This activity
has been upheld by the courts in Quinto and Reynolds. A peace
officer in uniform can record a suspect's conversation, and even if
an officer is not in uniform as long as the suspect knows he is an
officer. By including it in the bill, the courts may question the
language - "uniformed peace officer" - and interpret it to not mean
a peace officer who is not in uniform is not included and may not
be covered under this exemption. She suggested considering the
issue of when an officer is killed and provisions on whether or not
what the monitoring officer heard can be used [as evidence]. In
addition, she suggested considering Evidence Rule 412 where, in
cases of perjury, evidence can be used that was obtained from a
confession in a prosecution for perjury, or specifically provide
for otherwise.
Number 0388
REPRESENTATIVE GREEN asked Ms. Carpeneti whether there is an avenue
to take to help law enforcement enhance their ability to catch "bad
guys" in terms of letting them off because what was heard is not
admissible.
MS. CARPENETI replied there could be language indicating, in the
event the officer who is wearing the body wire is killed, the
evidence can be used by the monitoring officer. It could be an
exemption.
Number 0456
REPRESENTATIVE GREEN asked Ms. Carpeneti whether the bill could
read - "put in harm's way" - rather then "killed." In other words,
where does it stop? Things have changed in the past twenty years;
it's dangerous out there.
MS. CARPENETI said everybody has said, this bill would be litigated
and it's not clear whether it would be upheld.
Number 0546
REPRESENTATIVE CROFT said: "Let me understand that perjury idea.
So, we--it would pass this bill and somebody may have a security
wiretap on a police--undercover police officer who goes in to make
a buy. They make a buy. They prosecute the guy for it. The guy
stands up and says, 'I didn't do it,' in court and is convicted.
Well, even before conviction, stands up testifies and says, 'I
wasn't there' or 'I didn't say--sell it to him.' And, then we say
'ah ha' now that you've said that we're bringing in the officer who
was out in the car and say, 'What did you hear on the wire?'
Didn't you hear him say, 'I'll sell you twenty pounds of
heroin.'...
MS. CARPENETI interjected and said she was thinking of it more as
a separate prosecution.
REPRESENTATIVE CROFT noted that is possible too under evidentiary
rule. It doesn't go to prove the truth of the matter, but to
impeach the person who said it.
MS. CARPENETI reiterated she was thinking of it more as a separate
prosecution. It's probably safer to keep the bill as it is, but at
a certain point it won't work if an officer is lost.
Number 0652
REPRESENTATIVE CROFT asked Ms. Carpeneti whether he is right about
the impeachment possibility, if there isn't a caveat in the bill.
MS. CARPENETI said it couldn't be used in any circumstances under
the bill the way it is drafted.
Number 0680
REPRESENTATIVE KERTTULA wondered, if a defendant perjury himself,
whether it can be used as impeachment since the evidence is
suppressed because of a constitutional ruling.
MS. CARPENETI said it can be used if there is a violation of a
person's Miranda rights.
Number 0728
CHAIRMAN KOTT stated it is the intent of the Chairman to hold the
bill over until tomorrow [April 22, 1999].
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