Legislature(1999 - 2000)
05/14/1999 02:48 PM Senate JUD
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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 TAYLOR informed committee members his concern with HB 135
is that he is fearful that the utilization of it may actually
preclude vital evidence from flowing into a courtroom, because none
of the evidence arrived at by having a "safety device" on an
officer can ever be used as a basis for a search warrant.
CORY WINCHELL, staff to the House Judiciary Committee, explained HB
135 is about officer safety. Alaskans enjoy a heightened degree of
privacy, a right embedded in the Alaska Constitution and laid down
in the Glass decision. HB 135 carefully carves a niche around the
Glass decision; it complies with that decision as much as possible
but it allows an officer to wear a wire for his or her own safety.
Any transmissions used or received by another officer, or anyone
else hearing the transmission, are inadmissible as evidence. In
addition, an officer cannot be forced to wear a wire, the officer
must consent. HB 135 will allow officers, when doing first-time
contacts with drug dealers, to wear safety wires.
Number 050
CHAIRMAN TAYLOR noted after watching a "cop show" on television
recently, he realized the patrol cars have built-in video cameras
and outdoor microphones that pick up conversations and road noise,
and the officers are frequently carrying a radio or tape recorder
to record conversations between the officer and the alleged
criminal. He questioned how that differs from the premise of HB
135, and why the videotape or recording should be precluded from
being used for evidentiary purposes. He noted there is no
restriction on any Alaskan from walking around with a tape recorder
and recording conversations.
MR. WINCHELL replied other jurisdictions around the United States
follow United States Supreme Court federal case law which uses an
expectation of privacy test. For example, if he and another were
discussing a drug deal, the fact that the discussion occurs lessens
the expectation of privacy because either person can tell others.
Alaska diverges from the Glass decision because Alaska's privacy
protections are a little bit different. The Department of Public
Safety (DPS) is so concerned about civil rights violations it will
not allow its officers to wear wires without a warrant, and it
wants clarification in statute. DPS was worried that if it did
violate a person's privacy rights, an action would be filed against
the Department.
CHAIRMAN TAYLOR asked whether an officer who pulls a suspected
drunk driver over can record the conversation. MR. WINCHELL said
a uniformed officer can.
CHAIRMAN TAYLOR asked if that is because of a lower expectation of
privacy.
MR. WINCHELL replied a recognized exception to the rule is that
when an officer is in uniform and engages a person in a
conversation, the general expectation is that the officer will be
taking notes or taping the conversation. He said if an undercover
officer showed a person a badge or informed a person of his/her
status, the same would apply. If an officer is undercover,
however, that is a different circumstance.
Number 105
CHAIRMAN TAYLOR repeated that his fear is that an officer cannot
communicate the conversation or use the information from the
conversation, even though it may reveal criminal activities about
to take place.
MR. WINCHELL clarified that the officer that hears the conversation
can use that information.
CHAIRMAN TAYLOR asked what would happen if that officer was killed.
MR. WINCHELL said that scenario is one that he and others are
working on, however no solution has been found yet because of the
Glass decision. He pointed out that the State of Pennsylvania
carved out an exception, but he was unaware of whether
Pennsylvania's Constitution is as stringent as Alaska's on the
matter of privacy. Pennsylvania's law allows use of the recorded
information if an officer is killed.
CHAIRMAN TAYLOR stated Alaska's Constitution is unique in that it
elevates privacy as a specific constitutional right. That right
has received numerous interpretations from Alaska's Supreme Court,
making it difficult to do all sorts of things that may infringe on
that right. He said he believes the legislation can work for the
limited purpose stated, but he is very troubled by the fact that
information may be received that cannot be used to prevent
additional or worse crimes than the crime the recording was
intended to protect the officer from.
MR. WINCHELL said Representative Kott echoes Chairman Taylor's
concern.
Number 174
CHAIRMAN TAYLOR asked whether the person listening to the wire
would not be part of the team working the case, because the sponsor
summary states that the back up officer may not testify in a
criminal proceeding involving a party to the oral communication
about the contents of the monitored conversation.
MR. WINCHELL replied they were trying to exclude the person
monitoring the conversation from a court proceeding, where they
might say, "...I heard Joe and then Fred talking about the cocaine
deal...." The wire would be for first-time encounters, and once
the relationship is established, more than sufficient probable
cause should be available to get a warrant so that officers can use
recordings from subsequent encounters. He repeated the intent of
HB 135 is to provide for officer safety to prevent an encounter
from elevating to a life-threatening situation.
SENATOR ELLIS asked for a copy of the Glass decision which Chairman
Taylor was able to provide.
SENATOR HALFORD asked if the Legislature can do anything to reverse
the Glass decision.
MR. WINCHELL thought the only thing Alaska could do is repeal the
privacy provision in the Constitution.
CHAIRMAN TAYLOR announced he would put HB 135 aside to give
committee members the chance to read the Glass decision, and HB 135
up later in the meeting.
HB 135-POLICE USE OF EAVESDROPPING DEVICES
MR. WINCHELL explained a proposed amendment (Amendment 1) to HB
135, an amendment offered by Representative Kerttula on the House
floor. It clarifies that the officer doing the undercover work is
competent to testify, which was the House Judiciary Committee's
intent. Amendment 1 reads as follows.
Page 3, lines 22-23"
Delete "A peace officer monitoring a receiving unit under (a)
of this section or any other person intercepting an oral
communication transmitted under (a) of this section,"
Insert "A peace officer, or other person, who receives by any
means the transmission of an oral communication that has been
transmitted under (a) of this section"
Page 3, line 25:
Delete "intercepted"
Insert "transmitted"
CHAIRMAN TAYLOR asked if a person who picks up the transmission on
a scanner would be incompetent to testify. MR. WINCHELL said that
is correct. He explained that third parties, not privy to the
conversation but who hear it via the transmission, will become
incompetent. The original undercover officer would still be
competent to testify.
CHAIRMAN TAYLOR asked if HB 135 has to contain that provision to
comply with the Glass decision. MR. WINCHELL said yes, for the
reason that the court wants the warrant requirements for privacy
reasons. Warrants may not be obtainable for first time encounters
because probable cause may not be established.
SENATOR HALFORD moved to adopt Amendment 1. There being no
objection, Amendment 1 was adopted.
SENATOR DONLEY moved SCSHB 135(JUD) from committee with individual
recommendations. There being no objection, the motion carried.
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