Regular Session 2015-2016 Senate Bill 0976 P.N. 1372

PRIOR PRINTER'S NO. 1205

PRINTER'S NO. 1372

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

976

Session of

2015

INTRODUCED BY GREENLEAF, BREWSTER, TEPLITZ, BROOKS, COSTA,

RAFFERTY, ALLOWAY, TARTAGLIONE, VULAKOVICH, HUGHES AND

BROWNE, AUGUST 13, 2015

SENATOR GREENLEAF, JUDICIARY, AS AMENDED, OCTOBER 27, 2015

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

Consolidated Statutes, in wiretapping and electronic

surveillance, further providing for definitions and for

exceptions to prohibition of interception and disclosure of

communications.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The introductory paragraph of the definition of

"crime of violence" and paragraph (3) of the definition of

"electronic, mechanical or other device" in section 5702 of

Title 18 of the Pennsylvania Consolidated Statutes are amended

and the section is amended by adding definitions to read:

SECTION 1. PARAGRAPH (3) OF THE DEFINITION OF "ELECTRONIC,

MECHANICAL OR OTHER DEVICE" IN SECTION 5702 OF TITLE 18 OF THE

PENNSYLVANIA CONSOLIDATED STATUTES IS AMENDED AND THE SECTION IS

AMENDED BY ADDING DEFINITIONS TO READ:

§ 5702. Definitions.

As used in this chapter, the following words and phrases

shall have the meanings given to them in this section unless the

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context clearly indicates otherwise:

* * *

"Crime of violence." [Any] Subject to section 5704(19)(i)(B)

(III) (relating to exceptions to prohibition of interception and

disclosure of communications), any of the following:

* * *

"Custodial interrogation." An interview:

(1) which occurs when an individual interviewed is in

custody; and

(2) in which a question, statement or other conduct is

reasonably likely to elicit an incriminating response from

the individual.

"Custody." A state of affairs in which an individual is:

(1) physically deprived of freedom in a significant way

while being interviewed by a law enforcement officer; or

(2) placed in a situation in which the individual

reasonably believes that his freedom of action or movement is

restricted.

* * *

"Electronic, mechanical or other device." Any device or

apparatus, including, but not limited to, an induction coil or a

telecommunication identification interception device, that can

be used to intercept a wire, electronic or oral communication

other than:

* * *

(3) Equipment or devices used to conduct interceptions

under section 5704(15) [(relating to exceptions to

prohibition of interception and disclosure of

communications)].

"Electronic recording." An audiovisual or audio recording of

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a statement.

* * *

"Interview." A conversation between a law enforcement

officer and another individual which takes place in the course

of a criminal investigation.

* * *

"Law enforcement agency." A government entity charged with

enforcement of criminal statutes or the investigation of

suspected criminal activity.

* * *

Section 2. Section 5704 of Title 18 is amended by adding a

paragraph PARAGRAPHS to read:

§ 5704. Exceptions to prohibition of interception and

disclosure of communications.

It shall not be unlawful and no prior court approval shall be

required under this chapter for:

* * *

(19) A law enforcement officer, whether or not certified

under section 5724, acting in the performance of official

duties to intercept and record an oral communication between

an individual and the law enforcement OFFICER in accordance

with the following:

(i) Except as set forth in subparagraph (iv), a t the

time of the interception, all of the following apply:

(A) The oral communication occurs inside a room

which:

(I) is designated or used for interrogations

and interviews within a police facility; and

(II) has a clearly visible notice posted to

inform individuals that they may be recorded.

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(B) The law enforcement officer complies with

all of the following:

(I) Is in uniform or otherwise clearly

identifiable as a law enforcement officer.

(II) Is using an electronic, mechanical or

other device to make an electronic recording of

the the oral communication.

(III) Is interrogating or interviewing the

individual about an actual or suspected crime of

violence. As used in this subclause, the term

"crime of violence" includes an offense under

Chapter 25 (relating to criminal homicide) or 31

Subch. B (relating to definition of offenses).

(IV) Records the law enforcement officer's

warning of constitutional rights to the

individual.

(V) Records the entire exchange in an

unedited and unaltered manner between the law

enforcement officer and the individual.

(VI) Documents the interception and

recording for administrative and evidentiary

obligations in compliance with section 5749

(relating to retention of certain records).

(ii) The law enforcement officer shall explain and

document an exception under subparagraph (iv).

Documentation under this subparagraph must include all of

the following as to the interview or custodial

interrogation:

(A) Date.

(B) Time and duration.

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(D) Summary of the content of each oral

communication.

(E) Explanation of the justification under

subparagraph (iv).

(iii) An electronic recording under this paragraph

shall be preserved until:

(A) the applicable Federal and State limitation

of actions expires; or

(B) appellate, postconviction and habeas corpus

relief applicable to the individual are concluded or

barred by time.

(iv) Subparagraph (i) shall not apply in any of the

following circumstances:

(A) A question and response is part of the

routine processing of the individual for arrest.

(B) The individual agrees to respond to the law

enforcement officer's questions only if the

individual's statements are not electronically

recorded.

faith and inadvertently fails to operate the

recording equipment properly.

(D) Without the knowledge of the law enforcement

officer, the recording equipment malfunctions.

(E) The interview or custodial interrogation

takes place in another jurisdiction and is conducted

by officials of that jurisdiction in compliance with

the law of that jurisdiction.

(F) The law enforcement officer reasonably

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believes that making the electronic recording would

jeopardize the safety of a person or the identity of

a confidential informant.

(G) The law enforcement officer reasonably

believes that subparagraph (i)(B)(III) is not

applicable.

(H) There are exigent circumstances which

prevent or impede making the electronic recording.

(I) AT THE TIME OF THE INTERCEPTION, THE ORAL

COMMUNICATION OCCURS INSIDE A ROOM DESIGNATED OR USED FOR

INTERROGATIONS OR INTERVIEWS WITHIN A POLICE FACILITY.

(II) AT THE TIME OF THE INTERCEPTION, THE LAW

ENFORCEMENT OFFICER:

(A) IS IN UNIFORM OR OTHERWISE CLEARLY

IDENTIFIABLE AS A LAW ENFORCEMENT OFFICER.

(B) PLACES THE OTHER PARTY ON NOTICE OF THE

INTERCEPTION AND RECORDING, ORALLY OR IN WRITING OR

BY THE POSTING OF A CLEARLY VISIBLE NOTICE THAT THE

INDIVIDUAL'S WORDS AND ACTIONS ARE BEING RECORDED.

DEVICE TO INTERCEPT AND RECORD THE ORAL

COMMUNICATION.

(D) IS CONDUCTING A CUSTODIAL INTERROGATION OF

AN INDIVIDUAL ABOUT ANY REPORTED CRIME.

(E) RECORDS A WARNING OF CONSTITUTIONAL RIGHTS

TO THE INDIVIDUAL.

(F) RECORDS THE ENTIRE INTERACTION OCCURRING IN

THE INTERROGATION ROOM BETWEEN THE LAW ENFORCEMENT

OFFICER AND THE INDIVIDUAL INTERROGATED IN AN

UNEDITED AND UNALTERED MANNER.

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(G) DOCUMENTS THE INTERCEPTION AND RECORDING OF

THE INTERROGATION.

(III) AN ORAL AND VIDEO RECORDING MADE UNDER THIS

PARAGRAPH SHALL NOT BE SUBJECT TO PRODUCTION UNDER THE

ACT OF FEBRUARY 14, 2008 (P.L.6, NO.3), KNOWN AS THE

RIGHT-TO-KNOW LAW, AND MUST BE PRESERVED UNTIL ALL:

(A) APPEALS, POSTCONVICTION AND HABEAS CORPUS

PROCEEDINGS REGARDING THE INDIVIDUAL RECORDED ARE

CONCLUDED; OR

(B) APPLICABLE FEDERAL AND STATE STATUTES OF

LIMITATIONS BAR PROSECUTION OF THE INDIVIDUAL

RECORDED.

(IV) AN ELECTRONIC RECORDING OF A CUSTODIAL

INTERROGATION REGARDING A REPORTED VIOLENT CRIME MUST BE

CONDUCTED PURSUANT TO THIS PARAGRAPH UNLESS:

(A) AN ELECTRONIC RECORDING OF THE CUSTODIAL

INTERROGATION IS NOT FEASIBLE, INCLUDING, BUT NOT

LIMITED TO, CASES IN WHICH RECORDING EQUIPMENT

MALFUNCTIONS;

(B) A SPONTANEOUS STATEMENT IS MADE OUTSIDE THE

COURSE OF CUSTODIAL INTERROGATION;

QUESTIONING THAT IS ROUTINELY ASKED DURING THE

PROCESSING OF THE ARREST OF THE SUSPECT;

(D) A STATEMENT IS MADE BY AN ACCUSED IN OPEN

COURT DURING TRIAL, BEFORE A GRAND JURY OR AT A

PRELIMINARY HEARING;

(E) A SUSPECT REFUSES TO HAVE THE CUSTODIAL

INTERROGATION ELECTRONICALLY RECORDED AND THE REFUSAL

ITSELF IS ELECTRONICALLY RECORDED;

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(F) A STATEMENT IS MADE DURING A CUSTODIAL

INTERROGATION THAT IS CONDUCTED IN ANOTHER STATE BY

LAW ENFORCEMENT OFFICERS OF THAT STATE;

(G) A STATEMENT IS GIVEN THAT OCCURS AT A TIME

WHEN THE INTERROGATORS HAVE NO KNOWLEDGE THAT A CRIME

FOR WHICH RECORDING IS REQUIRED HAS BEEN COMMITTED;

(H) A STATEMENT IS GIVEN IN ANOTHER JURISDICTION

AND IS CONDUCTED BY OFFICIALS OF THAT JURISDICTION IN

COMPLIANCE WITH THE LAW OF THAT JURISDICTION; OR

(I) EXIGENT CIRCUMSTANCES EXIST WHICH PREVENT

THE MAKING OF OR RENDER IT NOT FEASIBLE TO MAKE AN

ELECTRONIC RECORDING OF THE CUSTODIAL INTERROGATION.

(V) A FAILURE OF A LAW ENFORCEMENT OFFICER TO

INTERCEPT AND RECORD AN ORAL COMMUNICATION UNDER

SUBPARAGRAPH (IV) ABOUT A REPORTED VIOLENT CRIME MUST BE

DOCUMENTED IN WRITING, EXCEPT THAT A FAILURE TO COMPLY

WITH THE PROVISIONS OF SUBPARAGRAPH (IV) OR OF THIS

SUBPARAGRAPH SHALL NOT RENDER THE STATEMENT OR

COMMUNICATION INADMISSIBLE.

(VI) THE TERM "VIOLENT CRIME" WHEN USED IN THIS

PARAGRAPH SHALL MEAN ANY OF THE FOLLOWING CRIMES:

(A) CRIMINAL HOMICIDE AS DEFINED IN SECTION 2501

(RELATING TO CRIMINAL HOMICIDE).

(B) MURDER AS DEFINED IN SECTION 2502 (RELATING

TO MURDER).

2503 (RELATING TO VOLUNTARY MANSLAUGHTER).

(D) INVOLUNTARY MANSLAUGHTER AS DEFINED IN

SECTION 2504 (RELATING TO INVOLUNTARY MANSLAUGHTER).

(E) CAUSING OR AIDING SUICIDE AS DEFINED IN

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SECTION 2505 (RELATING TO CAUSING OR AIDING SUICIDE).

(F) DRUG DELIVERY RESULTING IN DEATH AS DEFINED

IN SECTION 2506 (RELATING TO DRUG DELIVERY RESULTING

IN DEATH).

(G) CRIMINAL HOMICIDE OF LAW ENFORCEMENT OFFICER

AS DEFINED IN SECTION 2507 (RELATING TO CRIMINAL

HOMICIDE OF LAW ENFORCEMENT OFFICER).

(H) RAPE AS DEFINED IN SECTION 3121 (RELATING TO

RAPE).

(I) STATUTORY SEXUAL ASSAULT AS DEFINED IN

SECTION 3122.1 (RELATING TO STATUTORY SEXUAL

ASSAULT).

(J) INVOLUNTARY DEVIATE SEXUAL INTERCOURSE AS

DEFINED IN SECTION 3123 (RELATING TO INVOLUNTARY

DEVIATE SEXUAL INTERCOURSE).

(K) SEXUAL ASSAULT AS DEFINED IN SECTION 3124.1

(RELATING TO SEXUAL ASSAULT).

(L) INSTITUTIONAL SEXUAL ASSAULT AS DEFINED IN

SECTION 3124.2 (RELATING TO INSTITUTIONAL SEXUAL

ASSAULT).

(M) SEXUAL ASSAULT BY SPORTS OFFICIAL, VOLUNTEER

OR EMPLOYEE OF NONPROFIT ASSOCIATION AS DEFINED IN

SECTION 3124.3 (RELATING TO SEXUAL ASSAULT BY SPORTS

OFFICIAL, VOLUNTEER OR EMPLOYEE OF NONPROFIT

ASSOCIATION).

(N) AGGRAVATED INDECENT ASSAULT AS DEFINED IN

SECTION 3125 (RELATING TO AGGRAVATED INDECENT

ASSAULT).

(O) INDECENT ASSAULT AS DEFINED IN SECTION 3126

(RELATING TO INDECENT ASSAULT).

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(20) A LAW ENFORCEMENT OFFICER, WHETHER OR NOT CERTIFIED

UNDER SECTION 5724, ACTING IN THE PERFORMANCE OF HIS OFFICIAL

DUTIES TO INTERCEPT AND RECORD AN ORAL COMMUNICATION BETWEEN

INDIVIDUALS IN ACCORDANCE WITH THE FOLLOWING:

(I) AT THE TIME OF THE INTERCEPTION, THE ORAL

COMMUNICATION DOES NOT OCCUR INSIDE THE RESIDENCE OF ANY

OF THE INDIVIDUALS EXCEPT UNDER THE FOLLOWING

CIRCUMSTANCES:

(A) THE LAW ENFORCEMENT OFFICER IS EXECUTING AN

ARREST OR SEARCH WARRANT;

(B) AN INDIVIDUAL WITH EITHER ACTUAL AUTHORITY

OR APPARENT AUTHORITY HAS GIVEN CONSENT TO INTERCEPT

AND RECORD; OR

(II) ORAL AND VIDEO RECORDINGS BY LAW ENFORCEMENT

OFFICERS MADE UNDER THIS SECTION SHALL NOT BE SUBJECT TO

PRODUCTION UNDER THE RIGHT-TO-KNOW LAW .

Section 3. The addition of 18 Pa.C.S. § 5704(19) AND (20)

shall apply to law enforcement actions which take place on or

after the effective date of this section.

Section 4. This act shall take effect in 60 days.

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