SENATE AMENDED
PRIOR PRINTER'S NO. 1714 PRINTER'S NO. 3660
No. 1450 Session of 1999
INTRODUCED BY MAYERNIK, L. I. COHEN, KAISER, READSHAW, FEESE,
STEVENSON, HENNESSEY, WOGAN, BARRAR, ORIE, DALLY, SCHULER,
JOSEPHS, WILLIAMS, CORRIGAN, VAN HORNE, GIGLIOTTI, FARGO,
SOLOBAY, MICHLOVIC, BELARDI, HARHAI, CIVERA, BENNINGHOFF AND
COSTA, MAY 5, 1999
SENATOR GREENLEAF, JUDICIARY, IN SENATE, AS AMENDED,
JUNE 6, 2000
AN ACT
1 Amending Titles 18 (Crimes and Offenses) and 75 (Vehicles) of
2 the Pennsylvania Consolidated Statutes, authorizing police
3 officers to record certain oral communications; providing for
4 authority to purchase surveillance devices; and providing for
5 windshield obstructions and wipers.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Paragraph (3) of the definition of "electronic, <--
9 mechanical or other device" in section 5702 of Title 18 of the
10 Pennsylvania Consolidated Statutes is amended to read:
11 § 5702. Definitions.
12 As used in this chapter, the following words and phrases
13 shall have the meanings given to them in this section unless the
14 context clearly indicates otherwise:
15 * * *
16 "Electronic, mechanical or other device." Any device or
17 apparatus, including, but not limited to, an induction coil or a
1 telecommunications identification interception device, that can
2 be used to intercept a wire, electronic or oral communication
3 other than:
4 * * *
5 (3) Equipment or devices used to conduct interceptions
6 under section 5704(15) or (16) (relating to exceptions to
7 prohibition of interception and disclosure of
8 communications).
9 * * *
10 Section 2. Section 5704 of Title 18 is amended by adding a
11 paragraph to read:
12 § 5704. Exceptions to prohibition of interception and
13 disclosure of communications.
14 It shall not be unlawful and no prior court approval shall be
15 required under this chapter for:
16 * * *
17 (16) (i) A police officer who has the authority to
18 enforce Title 75 (relating to vehicles) and who stops a
19 vehicle for a suspected violation of Title 75 while on
20 duty and utilizing an audio intercepting device to
21 intercept the oral communications occurring between that
22 police officer and any other person present at the
23 location of and during the vehicle stop. During the time
24 of the vehicle stop, the officer shall notify the driver
25 and other occupants of the vehicle that their oral
26 communications are being recorded. During the time of the
27 vehicle stop, any person in the vehicle may request that
28 his oral communication not be recorded. If such request
29 is made, any statement made by that person shall be
30 excluded from evidence in any civil or criminal
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1 proceeding. Except as provided in the preceding sentence,
2 evidence obtained on an audio-intercepting device as a
3 result of a Title 75 stop under this subparagraph shall
4 not be excluded in any civil or criminal proceeding. A
5 police department, agency or office shall not by order,
6 regulation or otherwise require an officer to activate an
7 audio device mounted or carried in the officer's vehicle
8 except in the following situations:
9 (A) when the police officer makes use of the
10 audible warning system authorized by 75 Pa.C.S. §
11 4571 (relating to visual and audible signals on
12 emergency vehicles);
13 (B) when the police officer is making use of the
14 visual signals authorized by 75 Pa.C.S. § 4571; or
15 (C) when the police officer is making use of the
16 audible warning system and visual signals.
17 (ii) For purposes of this paragraph, the term
18 "police officer" shall mean an individual who has the
19 authority to enforce Title 75.
20 Section 3. Section 5717 of Title 18 is amended by adding a
21 subsection to read:
22 § 5717. Investigative disclosure or use of contents of wire,
23 electronic or oral communications or derivative
24 evidence.
25 * * *
26 (d) Limitation on certain interceptions.--Any audio
27 communications recorded under section 5704(16) (relating to
28 exceptions to prohibition of interception and disclosure of
29 communications) and any evidence derived therefrom shall be
30 admissible only when giving testimony under oath or affirmation
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1 in any proceeding in any court of this Commonwealth on matters
2 relating to alleged misconduct by any individual recorded on the
3 audio recording.
4 SECTION 1. SECTION 5704 OF TITLE 18 OF THE PENNSYLVANIA <--
5 CONSOLIDATED STATUTES IS AMENDED BY ADDING A PARAGRAPH TO READ:
6 § 5704. EXCEPTIONS TO PROHIBITION OF INTERCEPTION AND
7 DISCLOSURE OF COMMUNICATIONS.
8 IT SHALL NOT BE UNLAWFUL UNDER THIS CHAPTER FOR:
9 * * *
10 (16) (1) A LAW ENFORCEMENT OFFICER WHO IS ACTING IN THE
11 PERFORMANCE OF OFFICIAL DUTIES AND WHO IS IN PROXIMITY TO
12 PARTIES TO A COMMUNICATION IN AN AREA WHERE, UNDER THE THEN-
13 EXISTING CIRCUMSTANCES, THE INDIVIDUAL WOULD HAVE NO
14 REASONABLE EXPECTATION OF PRIVACY, TO RECORD SUCH
15 COMMUNICATION BY AN ELECTRONIC OR MECHANICAL DEVICE CAPABLE
16 OF INTERCEPTING OR RECORDING ORAL COMMUNICATIONS. DURING SUCH
17 A COMMUNICATION, OR AS SOON AS PRACTICABLE, THE OFFICER SHALL
18 NOTIFY AT THE LOCATION ALL INDIVIDUALS IDENTIFIABLY PRESENT
19 THAT THEIR ORAL COMMUNICATIONS ARE BEING RECORDED. A
20 RECORDING OF ORAL COMMUNICATIONS UNDER THIS PARAGRAPH SHALL
21 BE MAINTAINED BY THE OFFICER'S DEPARTMENT FOR A MINIMUM OF 28
22 DAYS AFTER THE DATE OF THE RECORDING, AND SHALL BE DESTROYED
23 NO LATER THAN 90 DAYS AFTER THE DATE OF THE RECORDING UNLESS:
24 (I) THE DEPARTMENT OR THE OFFICER ON THE RECORDING
25 REASONABLY BELIEVES THAT THE RECORDING MAY BE USEFUL FOR
26 ITS EVIDENTIARY VALUE AT SOME LATER TIME;
27 (II) AN ALLEGED AGGRIEVED PARTY WHO IS A PARTICIPANT
28 ON THE RECORDING REASONABLY BELIEVES THAT THE RECORDING
29 MAY BE USEFUL FOR ITS EVIDENTIARY VALUE AT SOME LATER
30 TIME AND REQUESTS IN WRITING THAT THE DEPARTMENT CONTINUE
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1 TO MAINTAIN THE RECORDING;
2 (III) THE DEPARTMENT INTENDS TO USE THE RECORDING
3 FOR TRAINING PURPOSES AND HAS SECURED THE CONSENT OF THE
4 OFFICER AND ALL INDIVIDUALS ON THE RECORDING, EXCEPT THAT
5 CONSENT OF AN INDIVIDUAL SHALL NOT BE NECESSARY IF THE
6 INDIVIDUAL IS CONVICTED OF A CRIMINAL OFFENSE ARISING
7 FROM THE RECORDING, OR IF SUCH CHARGES DO NOT RESULT IN A
8 CONVICTION, THE INDIVIDUAL MAY REQUIRE THAT THE RECORDING
9 BE DESTROYED; OR
10 (IV) THE DEPARTMENT HAS IN EFFECT ON THE EFFECTIVE
11 DATE OF THIS PARAGRAPH, A WRITTEN POLICY OR REGULATION
12 THAT PROVIDES FOR THE MAINTENANCE AND DESTRUCTION OF SUCH
13 RECORDINGS.
14 FOR PURPOSES OF THIS SECTION, "LAW ENFORCEMENT OFFICER" SHALL
15 INCLUDE ANY POLICE OFFICER CERTIFIED PURSUANT TO 53 PA.C.S.
16 CH. 21 SUBCH. D (RELATING TO MUNICIPAL POLICE EDUCATION AND
17 TRAINING), MEMBERS OF THE PENNSYLVANIA STATE POLICE, AND ANY
18 INDIVIDUAL WHO HAS THE AUTHORITY TO ENFORCE 75 PA.C.S.
19 (RELATING TO VEHICLES).
20 (2) A POLICE DEPARTMENT, AGENCY OR OFFICE SHALL NOT BY
21 ORDER, REGULATION OR OTHERWISE REQUIRE AN OFFICER TO ACTIVATE
22 AN AUDIO DEVICE MOUNTED OR CARRIED IN THE OFFICER'S VEHICLE
23 EXCEPT IN THE FOLLOWING SITUATIONS:
24 (I) WHEN THE LAW ENFORCEMENT OFFICER MAKES USE OF
25 THE AUDIBLE WARNING SYSTEM AUTHORIZED BY 75 PA.C.S. §
26 4571 (RELATING TO VISUAL AND AUDIBLE SIGNALS ON EMERGENCY
27 VEHICLES);
28 (II) WHEN THE LAW ENFORCEMENT OFFICER IS MAKING USE
29 OF VISUAL SIGNALS AUTHORIZED BY 75 PA.C.S. § 4571; OR
30 (III) WHEN THE POLICE OFFICER IS MAKING USE OF THE
19990H1450B3660 - 5 -
1 AUDIBLE WARNING SYSTEM AND VISUAL SIGNALS.
2 SECTION 2. SECTIONS 5705 AND 5706 OF TITLE 18 ARE AMENDED TO
3 READ:
4 § 5705. POSSESSION, SALE, DISTRIBUTION, MANUFACTURE OR
5 ADVERTISEMENT OF ELECTRONIC, MECHANICAL OR OTHER
6 DEVICES AND TELECOMMUNICATION IDENTIFICATION
7 INTERCEPTION DEVICES.
8 EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN SECTION 5706
9 (RELATING TO EXCEPTIONS TO PROHIBITIONS IN POSSESSION, SALE,
10 DISTRIBUTION, MANUFACTURE OR ADVERTISEMENT OF ELECTRONIC,
11 MECHANICAL OR OTHER DEVICES AND TELECOMMUNICATION IDENTIFICATION
12 INTERCEPTION DEVICE), A PERSON IS GUILTY OF A FELONY OF THE
13 THIRD DEGREE IF HE DOES ANY OF THE FOLLOWING:
14 (1) INTENTIONALLY POSSESSES AN ELECTRONIC, MECHANICAL OR
15 OTHER DEVICE, KNOWING OR HAVING REASON TO KNOW THAT THE
16 DESIGN OF SUCH DEVICE RENDERS IT PRIMARILY USEFUL FOR THE
17 PURPOSE OF THE SURREPTITIOUS INTERCEPTION OF A WIRE,
18 ELECTRONIC OR ORAL COMMUNICATION.
19 (2) INTENTIONALLY SELLS, TRANSFERS OR DISTRIBUTES AN
20 ELECTRONIC, MECHANICAL OR OTHER DEVICE, KNOWING OR HAVING
21 REASON TO KNOW THAT THE DESIGN OF SUCH DEVICE RENDERS IT
22 PRIMARILY USEFUL FOR THE PURPOSE OF THE SURREPTITIOUS
23 INTERCEPTION OF A WIRE, ELECTRONIC OR ORAL COMMUNICATION.
24 (3) INTENTIONALLY MANUFACTURES OR ASSEMBLES AN
25 ELECTRONIC, MECHANICAL OR OTHER DEVICE, KNOWING OR HAVING
26 REASON TO KNOW THAT THE DESIGN OF SUCH DEVICE RENDERS IT
27 PRIMARILY USEFUL FOR THE PURPOSE OF THE SURREPTITIOUS
28 INTERCEPTION OF A WIRE, ELECTRONIC OR ORAL COMMUNICATION.
29 (4) INTENTIONALLY PLACES IN ANY NEWSPAPER, MAGAZINE,
30 HANDBILL, OR OTHER PUBLICATION ANY ADVERTISEMENT OF AN
19990H1450B3660 - 6 -
1 ELECTRONIC, MECHANICAL OR OTHER DEVICE, KNOWING OR HAVING
2 REASON TO KNOW THAT THE DESIGN OF SUCH DEVICE RENDERS IT
3 PRIMARILY USEFUL FOR THE PURPOSE OF THE SURREPTITIOUS
4 INTERCEPTION OF A WIRE, ELECTRONIC OR ORAL COMMUNICATION OR
5 OF AN ELECTRONIC, MECHANICAL OR OTHER DEVICE WHERE SUCH
6 ADVERTISEMENT PROMOTES THE USE OF SUCH DEVICE FOR THE PURPOSE
7 OF THE SURREPTITIOUS INTERCEPTION OF A WIRE, ELECTRONIC OR
8 ORAL COMMUNICATION.
9 (5) INTENTIONALLY POSSESSES A TELECOMMUNICATION
10 IDENTIFICATION INTERCEPTION DEVICE.
11 § 5706. EXCEPTIONS TO PROHIBITIONS IN POSSESSION, SALE,
12 DISTRIBUTION, MANUFACTURE OR ADVERTISEMENT OF
13 ELECTRONIC, MECHANICAL OR OTHER DEVICES AND
14 TELECOMMUNICATION IDENTIFICATION INTERCEPTION DEVICE.
15 (A) UNLAWFUL ACTIVITIES.--IT SHALL NOT BE UNLAWFUL UNDER
16 THIS CHAPTER FOR:
17 (1) A PROVIDER OF WIRE OR ELECTRONIC COMMUNICATION
18 SERVICE OR AN OFFICER, AGENT OR EMPLOYEE OF, OR A PERSON
19 UNDER CONTRACT WITH, SUCH A PROVIDER, IN THE NORMAL COURSE OF
20 THE BUSINESS OF PROVIDING THE WIRE OR ELECTRONIC
21 COMMUNICATION SERVICE; OR
22 (2) A PERSON UNDER CONTRACT WITH THE UNITED STATES, THE
23 COMMONWEALTH OR A POLITICAL SUBDIVISION THEREOF, A STATE OR A
24 POLITICAL SUBDIVISION THEREOF, OR AN OFFICER, AGENT OR
25 EMPLOYEE OF THE UNITED STATES, THE COMMONWEALTH OR A
26 POLITICAL SUBDIVISION THEREOF, OR A STATE OR A POLITICAL
27 SUBDIVISION THEREOF,
28 TO POSSESS, SELL, DISTRIBUTE, MANUFACTURE, ASSEMBLE OR ADVERTISE
29 AN ELECTRONIC, MECHANICAL OR OTHER DEVICE OR TELECOMMUNICATION
30 IDENTIFICATION INTERCEPTION DEVICE, WHILE ACTING IN FURTHERANCE
19990H1450B3660 - 7 -
1 OF THE APPROPRIATE ACTIVITIES OF THE UNITED STATES, THE
2 COMMONWEALTH OR A POLITICAL SUBDIVISION THEREOF, A STATE OR A
3 POLITICAL SUBDIVISION THEREOF OR A PROVIDER OF WIRE OR
4 ELECTRONIC COMMUNICATION SERVICE.
5 (B) RESPONSIBILITY.--
6 (1) EXCEPT AS PROVIDED UNDER PARAGRAPH (2), THE ATTORNEY
7 GENERAL AND THE DISTRICT ATTORNEY OR THEIR DESIGNEES SO
8 DESIGNATED IN WRITING SHALL HAVE THE SOLE RESPONSIBILITY TO
9 BUY, POSSESS AND LOAN ANY ELECTRONIC, MECHANICAL OR OTHER
10 DEVICE WHICH IS TO BE USED BY INVESTIGATIVE OR LAW
11 ENFORCEMENT OFFICERS FOR PURPOSES OF INTERCEPTION AS
12 AUTHORIZED UNDER SECTION 5704(2), (5) [AND] (12), (15) AND
13 (16) (RELATING TO EXCEPTIONS TO PROHIBITION OF INTERCEPTION
14 AND DISCLOSURE OF COMMUNICATIONS), 5712 (RELATING TO ISSUANCE
15 OF ORDER AND EFFECT), 5713 (RELATING TO EMERGENCY SITUATIONS)
16 OR 5713.1 (RELATING TO EMERGENCY HOSTAGE AND BARRICADE
17 SITUATIONS).
18 (2) THE DIVISION OR BUREAU OR SECTION OF THE
19 PENNSYLVANIA STATE POLICE RESPONSIBLE FOR CONDUCTING THE
20 TRAINING IN THE TECHNICAL ASPECTS OF WIRETAPPING AND
21 ELECTRONIC SURVEILLANCE AS REQUIRED BY SECTION 5724 (RELATING
22 TO TRAINING) MAY BUY AND POSSESS ANY ELECTRONIC, MECHANICAL
23 OR OTHER DEVICE WHICH IS TO BE USED BY INVESTIGATIVE OR LAW
24 ENFORCEMENT OFFICERS FOR PURPOSES OF INTERCEPTION AS
25 AUTHORIZED UNDER SECTION 5704(2), (5) [AND (12)], (15) AND
26 (16), 5712, 5713 OR 5713.1 FOR THE PURPOSE OF TRAINING.
27 HOWEVER, ANY ELECTRONIC, MECHANICAL OR OTHER DEVICE BOUGHT OR
28 POSSESSED UNDER THIS PROVISION MAY BE LOANED TO OR USED BY
29 INVESTIGATIVE OR LAW ENFORCEMENT OFFICERS FOR PURPOSES OF
30 INTERCEPTION AS AUTHORIZED UNDER SECTION 5704(2), (5) [AND
19990H1450B3660 - 8 -
1 (12)], (15) AND (16), 5712, 5713 OR 5713.1 ONLY UPON WRITTEN
2 APPROVAL BY THE ATTORNEY GENERAL OR A DEPUTY ATTORNEY GENERAL
3 DESIGNATED IN WRITING BY THE ATTORNEY GENERAL, OR THE
4 DISTRICT ATTORNEY OR AN ASSISTANT DISTRICT ATTORNEY
5 DESIGNATED IN WRITING BY THE DISTRICT ATTORNEY OF THE COUNTY
6 WHEREIN THE INTERCEPTION IS TO BE MADE.
7 (3) WITH THE PERMISSION OF THE ATTORNEY GENERAL OR A
8 DISTRICT ATTORNEY WHO HAS DESIGNATED ANY SUPERVISING LAW
9 ENFORCEMENT OFFICER FOR PURPOSES OF INTERCEPTIONS AS
10 AUTHORIZED UNDER SECTION 5713.1, THE LAW ENFORCEMENT AGENCY
11 WHICH EMPLOYS THE SUPERVISING LAW ENFORCEMENT OFFICER MAY
12 BUY, POSSESS, LOAN OR BORROW ANY ELECTRONIC, MECHANICAL OR
13 OTHER DEVICE WHICH IS TO BE USED BY INVESTIGATIVE OR LAW
14 ENFORCEMENT OFFICERS AT THE DIRECTION OF THE SUPERVISING LAW
15 ENFORCEMENT OFFICER SOLELY FOR THE PURPOSE OF INTERCEPTION AS
16 AUTHORIZED UNDER SECTIONS 5704(12) AND 5713.1.
17 SECTION 3. SECTION 5717 OF TITLE 18 IS AMENDED BY ADDING A
18 SUBSECTION TO READ:
19 § 5717. INVESTIGATIVE DISCLOSURE OR USE OF CONTENTS OF WIRE,
20 ELECTRONIC OR ORAL COMMUNICATIONS OR DERIVATIVE
21 EVIDENCE.
22 * * *
23 (D) LIMITATION ON CERTAIN INTERCEPTIONS.--ANY AUDIO
24 COMMUNICATIONS RECORDED UNDER SECTION 5704(16) (RELATING TO
25 EXCEPTIONS TO PROHIBITION OF INTERCEPTION AND DISCLOSURE OF
26 COMMUNICATIONS) AND ANY EVIDENCE DERIVED THEREFROM SHALL BE
27 INADMISSIBLE AS EVIDENCE IN ANY ADMINISTRATIVE PROCEEDING OR
28 HEARING AGAINST A LAW ENFORCEMENT OFFICER EXCEPT WHERE THE
29 OFFICER IS CHARGED WITH AN OFFENSE THAT IS A MISDEMEANOR OR
30 FELONY VIOLATION OF PENNSYLVANIA OR FEDERAL LAW.
19990H1450B3660 - 9 -
1 Section 4. Section 4524 of Title 75 is amended by adding a
2 subsection to read:
3 § 4524. Windshield obstructions and wipers.
4 * * *
5 (f) Exception for video equipment in police or sheriff
6 vehicles.--This section does not prevent the installation or use
7 of video recording or projection equipment, that has been
8 approved by the department, upon the windshield or any window of
9 a police or sheriff vehicle used exclusively for official
10 purposes.
11 Section 5. This act shall take effect in 60 days.
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