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.