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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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(C) Names of participants.
(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.
(C) The law enforcement officer acts in good
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.
(C) IS USING AN ELECTRONIC, MECHANICAL OR OTHER
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;
(C) A STATEMENT IS MADE IN RESPONSE TO
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).
(C) VOLUNTARY MANSLAUGHTER AS DEFINED IN SECTION
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
(C) EXIGENT CIRCUMSTANCES ARE PRESENT.
(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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