S0976B1372A10646 MSP:CMD 10/18/16 #90 A10646
AMENDMENTS TO SENATE BILL NO. 976
Sponsor: SENATOR GREENLEAF
Printer's No. 1372
Amend Bill, page 1, line 1, by striking out "Title" and
inserting
Titles
Amend Bill, page 1, line 1, by inserting after "Offenses)"
and 42 (Judiciary and Judicial Procedure)
Amend Bill, page 1, line 3, by striking out "and" and
inserting a comma
Amend Bill, page 1, line 5, by striking out the period after
"communications" and inserting
and for exceptions to prohibitions in possession, sale,
distribution, manufacture or advertisement of electronic,
mechanical or other devices; and providing for recordings by
law enforcement officers.
Amend Bill, page 1, lines 13 through 19; pages 2 through 9,
lines 1 through 30; page 10, lines 1 through 21; by striking out
all of said lines on said pages and inserting
Section 1. The definition of "oral communication" in section
5702 of Title 18 of the Pennsylvania Consolidated Statutes is
amended 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
context clearly indicates otherwise:
* * *
"Oral communication." As follows:
(1) Any oral communication uttered by a person
possessing an expectation that such communication is not
subject to interception under circumstances justifying such
expectation. The term does not include any electronic
communication[.] or a communication made in the presence of a
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law enforcement officer on official duty who is in uniform or
otherwise clearly identifiable as a law enforcement officer
and who is using an electronic, mechanical or other device
which has been approved under section 5706(b)(4) (relating to
exceptions to prohibitions in possession, sale, distribution,
manufacture or advertisement of electronic, mechanical or
other devices) to intercept the oral communication in the
course of law enforcement duties.
(2) For purposes of this definition, a law enforcement
officer means a member of the Pennsylvania State Police or an
individual employed as a police officer who holds a current
certificate under 53 Pa.C.S. Ch. 21 Subch. D (relating to
municipal police education and training).
* * *
Section 2. Sections 5704(13), (14) and (16) and 5706(b)(4)
of Title 18 are amended 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:
* * *
(13) An investigative officer, a law enforcement officer
or employees of the Department of Corrections for State
correctional facilities to intercept, record, monitor or
divulge any [telephone calls] oral, electronic or wire
communication from or to an inmate in a facility under the
following conditions:
(i) The Department of Corrections shall adhere to
the following procedures and restrictions when
intercepting, recording, monitoring or divulging any
[telephone calls] oral, electronic or wire communication
from or to an inmate in a State correctional facility as
provided for by this paragraph:
(A) Before the implementation of this paragraph,
all inmates of the facility shall be notified in
writing that, as of the effective date of this
paragraph, their [telephone conversations] oral,
electronic or wire communications may be intercepted,
recorded, monitored or divulged.
(B) Unless otherwise provided for in this
paragraph, after intercepting or recording [a
telephone conversation] any oral, electronic or wire
communication, only the superintendent, warden or a
designee of the superintendent or warden or other
chief administrative official or his or her designee,
or law enforcement officers shall have access to that
recording.
(C) The contents of an intercepted and recorded
[telephone conversation] oral, electronic or wire
communication shall be divulged only as is necessary
to safeguard the orderly operation of the facility,
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in response to a court order or in the prosecution or
investigation of any crime.
(ii) So as to safeguard the attorney-client
privilege, the Department of Corrections shall not
intercept, record, monitor or divulge any [conversation]
oral, electronic or wire communication between an inmate
and an attorney.
(iii) [Persons who are calling in to a facility to
speak to an inmate shall be notified that the call may be
recorded or monitored.] Persons who are engaging in an
oral, electronic or wire communication with an inmate
shall be notified that the communication may be recorded
or monitored. Notice may be provided by any means
reasonably designed to inform the non-inmate party to the
communication of the recording or monitoring.
(iv) The Department of Corrections shall promulgate
guidelines to implement the provisions of this paragraph
for State correctional facilities.
(14) An investigative officer, a law enforcement officer
or employees of a county correctional facility to intercept,
record, monitor or divulge any [telephone calls] oral,
electronic or wire communication from or to an inmate in a
facility under the following conditions:
(i) The county correctional facility shall adhere to
the following procedures and restrictions when
intercepting, recording, monitoring or divulging any
[telephone calls] oral, electronic or wire communication
from or to an inmate in a county correctional facility as
provided for by this paragraph:
(A) Before the implementation of this paragraph,
all inmates of the facility shall be notified in
writing that, as of the effective date of this
paragraph, their [telephone conversations] oral,
electronic or wire communications may be intercepted,
recorded, monitored or divulged.
(B) Unless otherwise provided for in this
paragraph, after intercepting or recording [a
telephone conversation] any oral, electronic or wire
communication, only the superintendent, warden or a
designee of the superintendent or warden or other
chief administrative official or his or her designee,
or law enforcement officers shall have access to that
recording.
(C) The contents of an intercepted and recorded
[telephone conversation] oral, electronic or wire
communication shall be divulged only as is necessary
to safeguard the orderly operation of the facility,
in response to a court order or in the prosecution or
investigation of any crime.
(ii) So as to safeguard the attorney-client
privilege, the county correctional facility shall not
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intercept, record, monitor or divulge any [conversation]
oral, electronic or wire communication between an inmate
and an attorney.
(iii) [Persons who are calling into a facility to
speak to an inmate shall be notified that the call may be
recorded or monitored.] Persons who are engaging in an
oral or wire communication with an inmate shall be
notified that the communication may be recorded or
monitored. Notice may be provided by any means reasonably
designed to inform the non-inmate party to the
communication of the recording or monitoring.
(iv) The superintendent, warden or a designee of the
superintendent or warden or other chief administrative
official of the county correctional system shall
promulgate guidelines to implement the provisions of this
paragraph for county correctional facilities.
* * *
[(16) A law enforcement officer, whether or not
certified under section 5724 (relating to training), 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.
(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) is in close proximity to the individuals'
oral communication;
(C) is using an electronic, mechanical or other
device which has been approved under section 5706(b)
(4) (relating to exceptions to prohibitions in
possession, sale, distribution, manufacture or
advertisement of electronic, mechanical or other
devices) to intercept the oral communication; and
(D) informs, as soon as reasonably practicable,
the individuals identifiably present that he has
intercepted and recorded the oral communication.
(iii) As used in this paragraph, the term "law
enforcement officer" means a member of the Pennsylvania
State Police or an individual employed as a police
officer who holds a current certificate under 53 Pa.C.S.
Ch. 21 Subch. D (relating to municipal police education
and training).]
* * *
§ 5706. Exceptions to prohibitions in possession, sale,
distribution, manufacture or advertisement of
electronic, mechanical or other devices.
* * *
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(b) Responsibility.--
* * *
(4) The Pennsylvania State Police shall annually
establish equipment standards for any electronic, mechanical
or other device which is to be used by law enforcement
officers [for purposes of interception as authorized under
section 5704(16).] to record communications made in the
presence of a law enforcement officer that are excepted from
the definition of "oral communication" in section 5702
(relating to definitions). The equipment standards shall be
published annually in the Pennsylvania Bulletin.
Section 3. Title 42 is amended by adding a chapter to read:
CHAPTER 67
RECORDINGS BY LAW ENFORCEMENT OFFICERS
Sec.
6701. Definitions.
6702. Production of an audio or video recording.
6703. Procedure for requesting prod uction of a law enforcement
audio or video recording.
§ 6701. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Audio or video recording pertaining to an investigation."
An audio or video recording pertains to an investigation if it
includes:
(1) Complaints of potential criminal conduct.
(2) The identity of a confidential source or the
identity of a suspect who has not been charged with an
offense to whom confidentiality has been promised.
(3) Information made confidential by law or court order.
(4) Victim information, including any information that
would jeopardize the safety of the victim.
(5) Information that would, if disclosed, do any of the
following:
(i) Reveal the institution, progress or result of a
criminal investigation, except for the filing of criminal
charges.
(ii) Deprive an individual of the right to a fair
trial or an impartial adjudication.
(iii) Impair the ability of a law enforcement
officer, a district attorney or the Attorney General to
locate a defendant or codefendant.
(iv) Hinder a law enforcement officer's, a district
attorney's or the Attorney General's ability to secure an
arrest, prosecution or conviction.
(v) Endanger the life or physical s afety of an
individual.
"Law enforcement officer." A member of the Pennsylvania
State Police or an individual employed as a police officer who
holds a current certificate under 53 Pa.C.S. Ch. 21 Subch. D
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(relating to municipal police education and training).
§ 6702. Production of an audio or video recording.
An audio or video reco rding by a law enforcement officer
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 .
§ 6703. Procedure for requesting production of a law
enforcement audio or video recording.
(a) Written request.--A party seeking production of an audio
or video recording made by a law enforcement officer shall,
within 14 days of the date on which the audio or video recording
was made, serve a written request on the person who is
designated a s the Right-to-Know officer under the act of
February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law,
for the law enforcem ent agency that employs the law enforcement
officer that ma de the audio or video rec ording. The following
shall apply:
(1) The written request must identify with particularity
an incident or event that is the subject of the audio or
video recording, including the date, time and location of the
incident or event.
(2) The written request must identify each individual
who was present at the time of the audio or video recording
or, if the identity of an individual is unknown, describe the
individual.
(3) If the audio or video recording has been identified
by the law enforcement agency as potential evidence in a
criminal matter, the law enforcement agency shall notify the
appropriate district attorney or the Attorney General, who
shall be permitted to certify that the audio or video
recording pertains to an investigation.
(4) It shall be grounds for denial of the written
request if the district attorney or Attorney General
certifies that the audio or video recording pertains to an
investigation.
(5) A law enforcement agency may establish reasonable
fees relating to the costs incurred to disclose audio or
video recordings. The fees shall be paid by the requesting
party at the time of disclosure of the audio or video
recording.
(b) Petition.--A party seeking production of an audio or
video recording made by a law enforcement officer may, within 14
days of the date on which the written request was denied or
deemed to be denied by the law enforcement agency, file a
petition in the court of common pleas having jurisdiction of the
matter. The following shall apply:
(1) The petitioner shall pay a filing fee of $250.
(2) The petitioner shall certify that notice of the
petition has been served or that service was attempted on
each individual who was present at the time of the audio or
video recording and, if the requested audio or video
recording was made inside a structure, the owner and occupant
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of the structure.
(3) The petition shall include a copy of the written
request that was served on the law enforcement agency and any
written response by the law enforcement agency to the
request.
(c) Summary dismissal.--It shall be grounds for summary
dismissal of the petition under subsection (b) if any of the
following apply:
(1) The written request to the law enforcement agency or
the filing of the petition was untimely.
(2) The written request to the law enforcement agency
failed to describe with sufficient particularity the incident
or event that is the subject of the audio or video recording,
including the date, time and location of the incident or
event.
(3) The district attorney or Attorney General certified
in response to the written request that the audio or video
recording pertains to an investigation.
(d) Order.--
(1) The court may grant the petition under subsection
(b), in whole or in part, and order disclosure of the audio
or video recording if the court determines that the
petitioner has established all of the following by a
preponderance of the evidence:
(i) Neither the district attorney nor the Attorney
General has certified that the audio or video recording
pertains to an investigation.
(ii) Disclosure of the audio or video recording
would be permissible under the Right-to-Know Law.
(iii) The public interest in disclosure outweighs
the interests of the law enforcement agency, the
Commonwealth or any individual's interest in
nondisclosure.
(2) When making a determination under paragraph (1)
(iii), the court may consider the public's interest in
understanding how law enforcement officers interact with the
public, the interests of crime victims and others in safety
and privacy and the resources available to review and
disclose audio or video recordings.
Section 4. This act shall take effect in 60 days.
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