Current Status Bill Number:3861 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19950323 Primary Sponsor:Fleming, All Sponsors:Fleming, Herdklotz, Sandifer, Seithel, Tripp, Limehouse, Mason, Meacham, Huff, Felder, Simrill, Fulmer, Robinson, A. Young, Phillips, McCraw, Walker, Haskins, Cain, Littlejohn, Davenport, Harrell, D. Smith, Klauber, H. Brown, Fair, Quinn, Easterday and Harrison Drafted Document Number:DKA\3817CM.95 Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Wiretapping and electronic surveillance
Body Date Action Description Com Leg Involved
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House 19950323 Introduced, read first time, 25 HJ
referred to Committee
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TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 30 TO TITLE 17 SO AS TO ESTABLISH PROCEDURES TO CONDUCT WIRETAPPING AND ELECTRONIC SURVEILLANCE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 17 of the 1976 Code is amended by adding:
Section 17-30-10. Except as otherwise provided in this chapter, a person is guilty of a felony and, upon conviction, must be imprisoned not more than five years if he wilfully:
(1) intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept any wire or oral communication;
(2) discloses or endeavors to disclose to another person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication; or
(3) uses or endeavors to use the contents of any wire or oral communication, knowing or having reason to know, that the information was obtained through the interception of a wire or oral communication.
Section 17-30-15. It is not unlawful under this chapter for:
(1) an operator of a switchboard, or an officer, agent, or employee of a communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in an activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of the communication. However, no communication common carrier shall utilize its service for observing or random monitoring except for mechanical or service quality control checks;
(2) a law enforcement officer or a person acting at the direction or request of a law enforcement officer to intercept a wire or oral communication involving suspected criminal activities where:
(i) the officer or person is a party to the communication; or
(ii) one of the parties to the communication has given prior consent to the interception. However, no interception under this subitem may be made unless the Attorney General or his designee, or the solicitor or his designee of the county in which the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception. The Attorney General, or his designee, or the solicitor, or his designee, is the custodian of recorded evidence obtained.
(3) police and emergency communication systems to record telephone communications coming into and going out of the communications system of a police department, fire department, or county emergency center, if all of the following apply:
(i) The telephones are limited to the exclusive use of the communication system for administrative purposes and the communication system employs a periodic warning which indicates to the parties to the conversation that the call is being recorded.
(ii) A recording made pursuant to this item, notes made from the recording, and transcriptions of the recording may be destroyed at any time, unless required for a pending judicial proceeding.
(iii) At least one nonrecorded telephone line is made available for public use at a police department, fire department, or county emergency center.
(4) a person to intercept a wire or oral communication where the parties to the communication have given prior consent to the interception;
(5) any law enforcement officer or communication common carrier acting at the direction of a law enforcement officer or in the normal course of its business, to use a pen register or a trap and trace device;
(6) personnel of a public utility to record telephone conversations with utility customers or the general public relating to receiving and dispatching or emergency and service calls provided there is, during the recording, a periodic warning which indicates to the parties to the conversation that the call is being recorded.
Section 17-30-20. Except as provided in Section 17-30-25, a person is guilty of a felony and, upon conviction, must be imprisoned not more than five years if he wilfully:
(1) possesses an intercepting device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of a wire or oral communication;
(2) sells, transfers, or distributes an intercepting device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of a wire or oral communication;
(3) manufacturers or assembles an intercepting device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of a wire or oral communication; or
(4) places in any newspaper, magazine, handbill, or another publication an advertisement of an intercepting device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of a wire or oral communication or of any intercepting device where the advertisement promotes the use of a device for the purpose of the surreptitious interception of a wire or oral communication.
Section 17-30-25. (A) It is not unlawful under this chapter for a communication common carrier or an officer, agent, or employee, or a person under contract with a communication common carrier, in the usual course of the communication common carrier's business, or a person under contract with the United States, a state or a political subdivision, or an officer, agent, or employee of a state or a political subdivision to possess, sell, distribute, manufacture, assembly, or advertise an intercepting device, while acting in furtherance of the appropriate activities of the United States, a state or a political subdivision or a communication common carrier.
(B) The Attorney General and the solicitor, or their designees, shall buy, possess, and loan an intercepting device which is to be used by a law enforcement officer for purposes of interception authorized under this chapter.
Section 17-30-30. (A) A law enforcement officer may use an intercepting device under this chapter when there is probable cause to believe that a person is committing or has committed an act which endangers the national security of the United States or the security of this State or that the person is committing or has committed the crime of treason, insurrection, rebellion, espionage, sabotage, or a felony involving bodily harm, or a crime involving arson, kidnapping, narcotics, dangerous drugs, importation or sale of marijuana or a controlled substance, burglary, prostitution, theft, blackmail, extortion, bribery, gambling, racketeering activity, or a felony involving alcoholic beverage laws or auto thefts, or there is probable cause to believe that a private place is being utilized or has been utilized for the commission of a crime contained in this subsection.
(B) Upon written application to a Circuit Court Judge by the solicitor of the circuit where an intercepting device is to be physically placed, or the Attorney General, which affirms that there is probable cause to believe that a person is committing or has committed a crime contained in this section, or a private place is being utilized or has been utilized for the commission of a crime contained in this section and sets forth the basis of probable cause and describes the person or place, the crime or crimes, the device to be used, and the specific conversations and activities to be overheard or observed, a Circuit Court Judge may issue a warrant permitting the use of an intercepting device for the surveillance of the person or place. The warrant must specify the device or devices to be used, the purpose, duration, and circumstances of use, the crime or crimes allegedly being committed, and the person or persons and place or places to be subject to surveillance.
(C) The Circuit Court Judge, before issuing a warrant to allow the device to be used, shall find that the party initiating the application for the warrant is aware of the facts and circumstances through his personal knowledge which are sufficient to lead a person of reasonable caution to believe that the alleged crime contained in the application has been committed or that the person has been informed of the facts and circumstances by a reasonably trustworthy informational source. The judge also shall find that the application contains exigencies supported by facts and circumstances which override the need for giving of notice of the surveillance to the parties to be overhead or observed by the use of the devices.
(D) Warrants issued under this section are valid for not more than thirty days after issuance, unless renewed for an additional twenty-day-period for good cause shown at the time of written application for renewal.
(E) The law enforcement officer executing the warrant shall make a return of the warrant to the judge which must contain how the warrant was used and employed and what was obtained. The return must reflect that the investigation or search was terminated immediately upon the conversation or activities which were authorized to be overheard, intercepted, or observed were obtained. The return must identify the law enforcement officer or his agent who employed the device used in the execution of the warrant.
(F) The application for an investigation warrant obtained pursuant to this section, supporting evidence in connection with the warrant, and entry of the issuance of an investigation warrant must remain confidential and in the custody of the judge and must not be released, except upon written order of the judge or at the time of trial of the case in which the evidence is used or in which evidence derived from the surveillance is used.
(G) The applicant for the warrant shall return it and report to the judge issuing it within thirty days of the issuance of the warrant. If no evidence of one of the crimes contained in this section has been obtained through the use of a device, it is the duty of the applicant to destroy all evidence obtained by surveillance and to certify that fact in writing to the judge under oath.
(H) If evidence of or information concerning the crime contained in the warrant is obtained through the use of a device, the applicant shall certify that fact in writing under oath in his report under subsection (G) of this section. Upon the return of an indictment, the solicitor shall notify the accused of the existence and substance of the evidence or information obtained through the use of a device or devices and if it has been reduced to a permanent form, it must be made available to the accused for inspection and copying.
(I) Publication of the evidence or information obtained under a warrant issued under this section that is not necessary and essential for the prosecution of the crime specified in the warrant is an unlawful invasion of privacy and causes the evidence and information to be inadmissible in a criminal prosecution.
(J) Evidence obtained pursuant to this section is admissible only in the courts of this State having felony and misdemeanor jurisdiction. When a law enforcement officer, while engaged in intercepting wire or oral communication, intercepts wire or oral communication other than those specified in the warrant, the evidence derived may be disclosed or used in the same manner as if a surveillance warrant covering the crimes had been used initially.
(K) An officer, employee, or agent of a communication common carrier may provide facilities or technical assistance to a law enforcement officer who, pursuant to this section, is authorized by warrant to intercept a wire or oral communication.
(L) An order authorizing the interception of a wire or oral communication, upon request of the applicant, must direct that the communication common carrier, landlord, custodian, or other person shall furnish the applicant with technical information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the carrier, landlord, custodian, or person is according the person whose communications are to be intercepted. The communication common carrier, landlord, custodian, or another person furnishing facilities or technical assistance must be compensated by the applicant.
(M) A good faith reliance on a court order or legislative authorization constitutes a complete defense to a civil or criminal action brought under this title or under another law.
Section 17-30-35. An aggrieved person in a trial, hearing, or other adversary proceeding or an authority of this State may move to suppress the contents of an intercepted wire or oral communication, or evidence derived, on the following grounds:
(1) The communication was unlawfully intercepted.
(2) The warrant is insufficient on its face.
(3) The interception, unless made in accordance with Section 17-30-15, was not made pursuant to the warrant or in accordance with the requirements of Section 17-30-30.
Section 17-30-40. The Attorney General and the Chief of the State Law Enforcement Division shall establish a course of training in the legal and technical aspects of wiretapping and electronic surveillance, and shall establish regulations necessary and proper for the training program and minimum standards for certification and periodic recertification of a law enforcement officer eligible to conduct wiretapping or electronic surveillance under this chapter. SLED shall charge a law enforcement officer who enrolls in this training program an enrollment fee to offset the costs of the training."
SECTION 2. This act takes effect upon approval by the Governor.