SENATE AMENDED
PRIOR PRINTER'S NOS. 2522, 2976 PRINTER'S NO. 3505
No. 1933 Session of 2001
INTRODUCED BY MAYERNIK, PERZEL, COLAFELLA, GEIST, CALTAGIRONE,
CLARK, CORNELL, CORRIGAN, CREIGHTON, D. EVANS, J. EVANS,
FEESE, FRANKEL, GABIG, GEORGE, HARHAI, HENNESSEY, HERSHEY,
LAUGHLIN, MARKOSEK, S. MILLER, PIPPY, PISTELLA, SAINATO,
SCHULER, B. SMITH, STERN, T. STEVENSON, J. TAYLOR, TRICH,
WALKO, WATERS, WATSON, WOJNAROSKI, M. WRIGHT, YOUNGBLOOD,
CAPPELLI, KAISER, CASORIO, C. WILLIAMS, McILHATTAN, McCALL,
WASHINGTON, PALLONE, COSTA, STEELMAN AND PICKETT,
SEPTEMBER 26, 2001
SENATOR GREENLEAF, JUDICIARY, IN SENATE, AS AMENDED,
MARCH 26, 2002
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; and further
4 PROVIDING FOR THE RETENTION OF CERTAIN RECORDS; REQUIRING THE <--
5 PROMULGATION OF REGULATIONS; AND FURTHER providing for
6 windshield obstructions and wipers.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Sections 5704 and 5706(b) of Title 18 of the <--
10 Pennsylvania Consolidated Statutes are amended by adding
11 paragraphs 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:
1 * * *
2 (16) A law enforcement officer, whether or not certified
3 under section 5724 (relating to training), acting in the
4 performance of his official duties to intercept and record an
5 oral communication between individuals in accordance with the
6 following:
7 (i) At the time of the interception, the oral
8 communication does not occur inside the residence of any
9 of the individuals.
10 (ii) At the time of the interception, the law
11 enforcement officer:
12 (A) is operating the visual or audible warning
13 system of the law enforcement officer's vehicle
14 authorized by 75 Pa.C.S. § 4571 (relating to visual
15 and audible signals on emergency vehicles) or
16 otherwise identifies himself as a law enforcement
17 officer;
18 (B) is in close proximity to the individuals'
19 oral communication; and
20 (C) notifies, as soon as practicable, the
21 individuals identifiably present at the location that
22 the oral communication is being or has been
23 intercepted and recorded.
24 (iii) The commander shall maintain all recordings of
25 oral communications intercepted under this paragraph for
26 SECTION 1. TITLE 18 OF THE PENNSYLVANIA CONSOLIDATED <--
27 STATUTES IS AMENDED BY ADDING SECTIONS TO READ:
28 § 5749. RETENTION OF CERTAIN RECORDS.
29 (A) RETENTION.--THE COMMANDER SHALL MAINTAIN ALL RECORDINGS
30 OF ORAL COMMUNICATIONS INTERCEPTED UNDER SECTION 5704(16)
20010H1933B3505 - 2 -
1 (RELATING TO EXCEPTIONS TO PROHIBITION OF INTERCEPTION AND
2 DISCLOSURE OF COMMUNICATIONS) FOR a minimum of 31 days after the
3 date of the interception. All recordings made under this <--
4 paragraph SECTION 5704(16) shall be recorded over or otherwise <--
5 destroyed no later than 90 days after the date of the recording
6 unless any of the following apply:
7 (A) The contents of the recording may result in <--
8 (1) THE CONTENTS OF THE RECORDING MAY RESULT IN the <--
9 issuance of a citation or the filing of criminal charges.
10 Except as otherwise authorized under this subparagraph <--
11 SUBSECTION, if no criminal charges are filed within the <--
12 applicable statute of limitations, any recording maintained
13 under this clause PARAGRAPH shall be recorded over or <--
14 destroyed no later than 90 days after the expiration of the
15 statute of limitations. All recordings under this clause <--
16 PARAGRAPH shall be maintained in accordance with section <--
17 5714(a) (RELATING TO RECORDING OF INTERCEPTED <--
18 COMMUNICATIONS), except that monitors need not be certified
19 under section 5724 (RELATING TO TRAINING). <--
20 (B) The commander or a law enforcement officer <--
21 on the recording reasonably believes that the
22 (2) THE COMMANDER OR A LAW ENFORCEMENT OFFICER ON THE <--
23 RECORDING BELIEVES THAT THE contents of the recording, or
24 evidence derived from the recording, may be necessary in a
25 proceeding for which disclosure is authorized under section
26 5717 (RELATING TO INVESTIGATIVE DISCLOSURE OR USE OF CONTENTS <--
27 OF WIRE, ELECTRONIC OR ORAL COMMUNICATIONS OR DERIVATIVE
28 EVIDENCE) or 5721.1 (relating to evidentiary disclosure of
29 contents of intercepted communication or derivative evidence)
30 or in a civil proceeding. All recordings under this clause <--
20010H1933B3505 - 3 -
1 PARAGRAPH shall be maintained in accordance with section <--
2 5714(a), except that monitors need not be certified under
3 section 5724.
4 (C) A criminal defendant, who is a participant <--
5 (3) A CRIMINAL DEFENDANT, WHO IS A PARTICIPANT on the <--
6 recording, reasonably believes that the recording may be
7 useful for its evidentiary value at some later time in a
8 specific criminal proceeding and, no later than 30 days
9 following the filing of criminal charges, provides written
10 notice to the commander indicating a desire that the
11 recording be maintained. The written notice must specify the
12 date, time and location of the recording; the names of the
13 parties involved; and, if known, the case docket number.
14 (D) An individual who is a participant on the <--
15 (4) AN INDIVIDUAL WHO IS A PARTICIPANT ON THE recording <--
16 intends to pursue a civil action or has already initiated a
17 civil action and, no later than 30 days after the date of the
18 recording, gives written notice to the commander indicating a
19 desire that the recording be maintained. The written notice
20 must specify the date, time and location of the recording;
21 the names of the parties involved; and, if a civil action has
22 be initiated, the case caption and docket number.
23 (E) The commander intends to use the recording <--
24 for training purposes.
25 (iv) In addition to any disclosure authorized under
26 sections 5717 and 5721.1, any recording maintained:
27 (A) under subparagraph (iii)(D) shall be
28 (5) THE COMMANDER INTENDS TO USE THE RECORDING FOR <--
29 TRAINING PURPOSES.
30 (B) DISCLOSURE.--IN ADDITION TO ANY DISCLOSURE AUTHORIZED
20010H1933B3505 - 4 -
1 UNDER SECTIONS 5717 AND 5721.1, ANY RECORDING MAINTAINED:
2 (1) UNDER SUBSECTION (A)(4) SHALL BE disclosed pursuant
3 to an order of court or as required by the Pennsylvania Rules
4 of Civil Procedure or the Pennsylvania Rules of Evidence; and
5 (B) under subparagraph (iii)(E) shall be <--
6 (2) UNDER SUBSECTION (A)(5) SHALL BE disclosed <--
7 consistent with written consent obtained from the law
8 enforcement officer and all participants required to consent
9 to such use.
10 (v) The Commissioner of the Pennsylvania State <--
11 (C) DEFINITIONS.--AS USED IN THIS SECTION, THE FOLLOWING <--
12 WORDS AND PHRASES SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS
13 SUBSECTION:
14 "COMMANDER." THE:
15 (1) COMMISSIONER OR A DESIGNEE, IF THE RECORDING AT
16 ISSUE WAS MADE BY A MEMBER OF THE PENNSYLVANIA STATE POLICE;
17 OR
18 (2) CHIEF OR A DESIGNEE OF THE LAW ENFORCEMENT AGENCY
19 WHICH MADE THE RECORDING AT ISSUE.
20 "LAW ENFORCEMENT OFFICER." A MEMBER OF THE PENNSYLVANIA
21 STATE POLICE OR AN INDIVIDUAL EMPLOYED AS A POLICE OFFICER WHO
22 IS REQUIRED TO BE TRAINED UNDER 53 PA.C.S. CH. 21 SUBCH. D
23 (RELATING TO MUNICIPAL POLICE EDUCATION AND TRAINING).
24 § 5782. REGULATIONS.
25 THE COMMISSIONER OF THE PENNSYLVANIA STATE Police, in
26 consultation with the Attorney General, shall promulgate
27 regulations consistent with this paragraph SECTION 5704(16) <--
28 (RELATING TO EXCEPTIONS TO PROHIBITION OF INTERCEPTION AND
29 DISCLOSURE OF COMMUNICATIONS) AND SECTION 5749 (RELATING TO
30 RETENTION OF CERTAIN RECORDS) setting forth procedures to be
20010H1933B3505 - 5 -
1 followed by law enforcement officers regarding the interception,
2 maintenance and destruction of recordings made under this <--
3 paragraph SECTION 5704(16). <--
4 (vi) As used in this paragraph, the following words <--
5 and phrases shall have the meanings given to them in this
6 subparagraph:
7 "Commander." The:
8 (A) commissioner or a designee, if the recording
9 at issue was made by a member of the Pennsylvania
10 State Police; or
11 (B) chief or a designee of the law enforcement
12 agency which made the recording at issue.
13 "Law enforcement officer." A member of the
14 Pennsylvania State Police or an individual employed as a
15 police officer who received training under 53 Pa.C.S. Ch.
16 21 Subch. D (relating to municipal police education and
17 training).
18 § 5706. Exceptions to prohibitions in possession, sale,
19 distribution, manufacture or advertisement of
20 electronic, mechanical or other devices.
21 * * *
22 (b) Responsibility.--
23 * * *
24 (4) The Pennsylvania State Police shall annually
25 establish equipment standards for any electronic, mechanical
26 or other device which is to be used by law enforcement
27 officers for purposes of interception as authorized under
28 section 5704(16). The equipment standards shall be published
29 annually in the Pennsylvania Bulletin.
30 Section 2. Section 4524 of Title 75 is amended by adding a
20010H1933B3505 - 6 -
1 subsection to read:
2 § 4524. Windshield obstructions and wipers.
3 * * *
4 (f) Exception.--This section does not apply to mobile video
5 recording equipment installed in a vehicle exclusively used for
6 official police purposes.
7 Section 3. This act shall take effect in 60 days. <--
8 SECTION 3. THE AMENDMENT OR ADDITION OF 18 PA.C.S. §§ 5749 <--
9 AND 5782 AND 75 PA.C.S. § 4524(F) SHALL APPLY UPON ENACTMENT OF
10 A STATUTE PROVIDING FOR THE INTERCEPTING AND RECORDING OF ORAL
11 COMMUNICATIONS UNDER 18 PA.C.S. § 5704.
12 SECTION 4. THIS ACT SHALL TAKE EFFECT IMMEDIATELY.
F13L18MSP/20010H1933B3505 - 7 -