ENROLLED
H. B. 204
(By
Mr. Speaker, Mr. Thompson, and Delegate Armstead)
[By Request of the Executive]
)
____________
[Passed August 21, 2007; in effect from passage.]
____________
AN ACT to
amend and reenact §62-1D-3 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new article, designated §62-1F-1, §62-1F-2, §62-1F-3, §62-1F-
4, §62-1F-5, §62-1F-6, §62-1F-7, §62-1F-8 and §62-1F-9, all
relating to electronic interception of a nonconsenting party's
conduct or oral communications in his or her home by an
investigative or law enforcement officer or an informant
invited into said home; excepting electronic interceptions of
a nonconsenting party's conduct or communications occurring in
his or her home from the wiretapping and electronic
surveillance act; providing definitions; requiring court
order to perform electronic interception of a nonconsenting
party's conduct or communications occurring in his or her
home
and exceptions thereto; providing for state supreme court to
establish requirements for providing after hours availability of magistrates and judges; authorizing law-enforcement to
apply for interception orders and providing criteria therefor;
authorizing magistrates and circuit court judges to issue
electronic interception orders; setting forth requirements for
electronic interception order applications; requiring orders
setting forth information; setting forth scope and duration of
orders; setting forth procedures for maintaining, disclosing
and disposing of electronic intercepts; requiring recording
and summaries of electronic intercepts; establishing
requirements for custody and destruction of said recordings;
placing applications and orders under seal; authorizing use of
information relating to other criminal violations under
certain circumstances; placing restrictions on disclosure and
use of electronically intercepted conduct and communications
and related information derived therefrom; and providing for
electronic intercepts in exigent circumstances without prior
judicial approval subject to retroactive approval.
Be it enacted by the Legislature of West Virginia:
That §62-1D-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new article, designated §62-1F-1, §62-1F-2, §62-1F-3,
§62-1F-4, §62-1F-5, §62-1F-6, §62-1F-7, §62-1F-8 and §62-1F-9, all
to read as follows:
ARTICLE 1D. WIRETAPPING AND ELECTRONIC SURVEILLANCE ACT.
º62-1D-3. Interception of communications generally.
(a) Except as otherwise specifically provided in this article
it is unlawful for any person to:
(1) Intentionally intercept, attempt to intercept or procure
any other person to intercept or attempt to intercept, any wire,
oral or electronic communication; or
(2) Intentionally disclose or intentionally attempt to
disclose to any other person the contents of any wire, oral or
electronic communication, knowing or having reason to know that the
information was obtained through the interception of a wire, oral
or electronic communication in violation of this article; and
(3) Intentionally use or disclose or intentionally attempt to
use or disclose the contents of any wire, oral or electronic
communication or the identity of any party thereto, knowing or
having reason to know that such information was obtained through
the interception of a wire, oral or electronic communication in
violation of this article.
(b) Any person who violates subsection (a) of this section is
guilty of a felony, and, upon conviction thereof, shall be
imprisoned in the penitentiary for not more than five years or
fined not more than ten thousand dollars or both fined and
imprisoned.
(c) It is lawful under this article for an operator of a
switchboard or an officer, employee, or provider of any wire or electronic communication service whose facilities are used in the
transmission of a wire communication to intercept, disclose or use
that communication or the identity of any party to that
communication in the normal course of his or her employment while
engaged in any activity which is a necessary incident to the
rendition of his or her service or to the protection of the rights
or property of the carrier of the communication. Providers of wire
or electronic communication services may not utilize service
observing or random monitoring except for mechanical or service
quality control checks.
(d) Notwithstanding any other law, any provider of wire or
electronic communications services, or the directors, officers,
employees, agents, landlords or custodians of any such provider,
are authorized to provide information, facilities or technical
assistance to persons authorized by this article to intercept wire,
oral or electronic communication if such provider or its directors,
officers, employees, agents, landlords or custodians has been
provided with a duly certified copy of a court order directing such
assistance and setting forth the period of time during which the
provision of the information, facilities, or technical assistance
is authorized and specifying the information, facilities or
assistance required. No cause of action shall lie in any court
against any such provider of wire or electronic communication
services, its directors, officers, agents, landlords or custodians for providing information facilities or assistance in accordance
with the terms of any such order.
(e) It is lawful under this article for a person to intercept
a wire, oral or electronic communication where the person is a
party to the communication or where one of the parties to the
communication has given prior consent to the interception unless
the communication is intercepted for the purpose of committing any
criminal or tortious act in violation of the constitution or laws
of the United States or the constitution or laws of this state:
(f) Notwithstanding the provisions of this article or any
other provision of law, an electronic interception as defined by
section one, article one-f of this chapter, is regulated solely by
the provisions of article one-f of this chapter, and no penalties
or other requirements of this article are applicable.
ARTICLE 1F. ELECTRONIC INTERCEPTION OF PERSON'S CONDUCT OR ORAL
COMMUNICATIONS IN HOME BY LAW ENFORCEMENT
º62-1F-1.
Definitions.
(a)For the purposes of this article, the following terms
have the following meanings.
(1)
"Body wire" means: (a) an audio and/or video recording
device surreptitiously carried on or under the control of an
investigative or law enforcement officer or informant to
simultaneously record a non-consenting party's conduct or oral
communications; or (2) radio equipment surreptitiously carried on or under the control of an investigative or law enforcement officer
or informant to simultaneously transmit a non-consenting party's
conduct or oral communications to recording equipment located
elsewhere or to other law-enforcement officers monitoring the radio
transmitting frequency.
(2)"Home" means the residence of a non-consenting party to
an electronic interception, provided that access to the residence
is not generally permitted to members of the public and the non-
consenting party has a reasonable expectation of privacy in the
residence under the circumstances.
(3)"Informant" means a person acting in concert with and at
the direction of a law-enforcement officer in the investigation of
possible violations of the criminal laws of this state or the
United States.
(4)"Investigative or law-enforcement officer" means any
officer empowered by law to conduct investigations of or to make
arrests for criminal offenses enumerated in this code or an
equivalent offense in another jurisdiction.
(5)"Electronically intercept" or "electronic interception"
mean the simultaneous recording with a body wire of a non-
consenting party's conduct or oral communications
in his or her
home by an investigative or law-enforcement officer or informant
who is invited into the home and physically present with the non-
consenting party in the home at the time of the recording.
(b)Words and phrases that are not defined in this article,
but which are defined in article one-d of this chapter, shall have
the same meanings established in article one-d unless otherwise
noted.
º62-1F-2. Electronic interception of conduct or oral
communications in the home authorized.
(a) Prior to engaging in electronic interception, as defined
in section one of this article, an investigative or law-enforcement
officer shall, in accordance with this article, first obtain from
a magistrate or a judge of a circuit court within the county
wherein the non-consenting party's home is located an order
authorizing said interception. The order shall be based upon an
affidavit by the investigative or law-enforcement officer or an
informant that establishes probable cause that the interception
would provide
evidence of the commission of a crime under the
laws
of this state or the United States.
(b) The Legislature hereby requests the supreme court of
appeals to promptly undertake all necessary actions and promulgate
any requisite rules to assure a magistrate or circuit judge is
available after normal business hours to authorize warrants.
º62-1F-3. Application for an order authorizing interception.
(a) Each application for an order authorizing electronic
interception in accordance with the provisions of this article
shall be made only to the magistrate or judge of the circuit court by petition in writing upon oath or affirmation and shall state the
applicant's authority to make the application. Each application
shall set forth the following:
(1) The identity of the investigative or law-enforcement
officer making the application, and of the person authorizing the
application, who shall be the head of the investigative or law-
enforcement agency or an officer of the investigative or law
enforcement agency designated in writing by the head of that
agency: Provided, That an application made by a member of the State
Police or an officer assigned to a multijurisdictional task force
authorized under section four, article ten, chapter fifteen of this
code also may be authorized by the supervisor of that member or
officer if the supervisor holds a rank of sergeant or higher;
(2) A full and complete statement of the facts and
circumstances relied upon by the applicant, to justify his or her
belief that an order should be issued, including (i) details as to
the particular offense that has been, is being, or is about to be
committed, (ii) a description of the person whose conduct or
communications are sought to be intercepted and a particular
description of the home at which it is anticipated that the
interception would occur: Provided, That the description of the
home may be omitted where there is good cause to believe that the
location is subject to change, (iii) a particular description of
the type of conduct or communications sought to be intercepted, and (iv) the identity of the person, if known, committing the offense
and whose conduct or communications are to be intercepted;
(3) A statement of the period of time for which the
interception is required to be maintained. If the nature of the
investigation is such that the authorization for interception
should not automatically terminate when the described conduct or
communication has been first obtained, a particular description of
facts establishing probable cause to believe additional conduct or
communications of the same type will occur thereafter; and
(4) Where the application is for the extension of an order, a
statement setting forth the results obtained pursuant to such order
from the interception or a reasonable explanation of the failure to
obtain any such results.
(b) The magistrate or judge of the circuit court may require
the applicant to furnish additional testimony or documentary
evidence in support of the application.
(c)Notwithstanding the provisions of subsection (a) of this
section, the magistrate or judge may take an oral statement under
oath in which the applicant must set forth the information required
in subsection (a) of this section. The applicant shall swear the
oath by telephone. A magistrate or judge administering an oath
telephonically under this subsection shall execute a declaration
that recites the manner and time of the oath's administration. The
oral statement shall be recorded. The recording shall be considered to be an application for the purposes of this section. In such
cases, the recording of the sworn oral statement and the
transcribed statement shall be certified by the magistrate or judge
receiving it and shall be retained as a part of the record of
proceedings for the issuance of the order.
º62-1F-4. Order authorizing interception.
(a) Upon application filed pursuant to the provisions of
section three of this article, the magistrate or judge of the
circuit court may enter an ex parte order, as requested or as
modified or moulded, authorizing an electronic interception in a
home if the magistrate or judge determines on the basis of the
evidence and argument presented by the applicant that:
(1) There is probable cause to believe that one or more
individuals are committing, have committed, or are about to commit
one or more specified crimes under the laws of this state or the
United States will be obtained through interception; and
(2) There is probable cause to believe that the home where the
electronic interception is to occur is being used, or is about to
be used, in connection with the commission of the offense, or
offenses: Provided, That such determination shall not be required
where the identity of the person committing the offense and whose
conduct or communications are to be intercepted is known, and the
applicant makes an adequate showing as required pursuant to
paragraph (ii), subdivision two, subsection (a), section three of this article that the location cannot be predetermined.
(b) Each order authorizing an electronic interception in
accordance with the provisions of this article shall specify: (i)
the identity of the person, if known, whose conduct or
communications are to be intercepted, (ii) the nature and location
of the home for which authority to intercept is granted, if
necessary under subdivision three, subsection (a) of this section,
(iii) a particular description of the type of conduct or
communications sought to be intercepted and a statement of the
particular offense to which it relates, (iv) the identity of the
law-enforcement officer or officers applying for authorization to
electronically intercept and of the officer authorizing the
application and (v) the period of time during which the
interception is authorized, including a statement as to whether or
not the interception automatically terminates when the described
conduct or communication is first obtained.
(c) An order entered pursuant to the provisions of this
section may authorize the electronic interception for a period of
time that is necessary to achieve the objective of the
authorization, not to exceed twenty days. Such twenty-day period
begins on the day the order is entered. Extensions of an order may
be granted, but only upon application for an extension made as
provided in subsection (a) of this section and upon the magistrate
or judge of the circuit court making the findings required by subsection (b) of this section. The period of extension may be no
longer than the magistrate or judge deems necessary to achieve the
purposes for which it was granted and, in no event, for longer than
twenty days. Every order and extension thereof shall contain a
provision that the authorization to electronically intercept be
executed as soon as practicable, be conducted in such a way as to
minimize the interception of conduct or communications not
otherwise subject to interception under this article and terminate
upon attainment of the authorized objective, or in any event within
the hereinabove described twenty-day period relating to initial
applications.
º62-1F-5.
Recording of intercepted communications.
(a) If recorded, the contents of any conduct or oral
communications electronically intercepted shall be recorded on tape
or wire or other comparable device and done in such a way or ways
as will protect the recording from editing or alterations thereto.
(b)Whenever practicable, the investigative or law
enforcement officer overseeing the recording of an electronic
interception shall keep a signed, written record of:
(1)The date and hours of the surveillance;
(2)The time and duration of each electronic interception;
(3) The participants, if known, in each electronic
interception; and
(4) A summary of the content of each intercepted communication.
(c)Immediately upon the expiration of the period of time
during which interception and recording is authorized by the order,
or extensions thereof, such recordings shall be made available, if
requested, to the magistrate or judge issuing such order. Custody
of the recordings shall be with the law-enforcement officer
authorizing the application underlying the order. Such recordings
may not be destroyed except upon an order of the magistrate or
judge to whom application was made or a circuit judge presiding
over any subsequent prosecution related to the electronic
interception. The records shall be maintained by the magistrate
court clerk or circuit clerk of the county where the application
was filed. Duplicate recordings may be made for use or disclosure
pursuant to the provisions of subsections (a) and (b), section
nine, article one-d of this chapter for investigations by law-
enforcement agencies.
º62-1F-6. Sealing of applications, orders and supporting papers.
Applications made and orders granted under this article shall
be ordered sealed by the magistrate or judge of the circuit court
to whom the application is made, and maintained under seal in the
custody of the magistrate court clerk or the circuit clerk of the
county in where the application was filed. The applications and
orders are discoverable and may be disclosed only in accordance
with the applicable provisions of this code and the rules of criminal procedure for the State of West Virginia, and may not be
destroyed except upon order of such magistrate or judge, and in any
event shall be kept for not less than ten years.
§62-1F-7. Investigative disclosure or use of contents of wire,
electronic or oral communications or derivative
evidence.
(a) Any law enforcement officer who has obtained knowledge of
the contents of any electronic interception, or evidence derived
therefrom, may disclose such contents or evidence to another law
enforcement officer to the extent that such disclosure is
appropriate to the proper performance of the official duties of the
officer making or receiving the disclosure.
(b) Any law enforcement officer who, by any means authorized
by this article, has obtained knowledge of the contents of any
electronic interception or any evidence derived therefrom may use
such contents or evidence to the extent such use is appropriate to
the proper performance of his or her official duties.
(c) Any person who by any means authorized by this article,
has obtained knowledge of the contents of any electronic
interception or evidence derived therefrom, may disclose such
contents or evidence to a law enforcement officer and may disclose
such contents or evidence while giving testimony under oath or
affirmation in any criminal proceeding in any court of this State
or of another state or of the United States or before any state or Federal grand jury or investigating grand jury.
§62-1F-8. Interception of communications relating to other
offenses.
When a law enforcement officer, while engaged in court
authorized electronic interception in the manner authorized herein,
intercepts communications relating to offenses other than those
specified in the order of authorization, the contents thereof, and
evidence derived therefrom, may be disclosed or used as provided in
section seven. Such contents and evidence may be disclosed in
testimony under oath or affirmation in any criminal proceeding in
any court of this State or of another state or of the United States
or before any state or Federal grand jury when authorized by a
judge who finds on subsequent application that the contents were
otherwise intercepted in accordance with the provisions of this
article. Such application shall be made as soon as practicable.
º62-1F-9.
Retroactive authorization.
Notwithstanding any other provision of this article, when (1)
a situation exists with respect to engaging in electronic
interception before an order authorizing such interception can with
due diligence be obtained;(2) the factual basis for issuance of an
order under this article exists; and (3) it is determined that
exigent circumstances exist which prevent the submission of an
application under section three of this article, conduct or oral
communications in the person's home may be electronically intercepted on an emergency basis if an application submitted in
accordance with section three of this article is made to a
magistrate or judge of the circuit within the county wherein the
person's home is located as soon as practicable, but not more than
three business days after the aforementioned determination. If
granted, the order shall recite the exigent circumstances present
and be retroactive to the time of such determination. In the
absence of an order approving such electronic interception, the
interception shall immediately terminate when the communication
sought is obtained or when the application for the order is denied,
whichever is earliest.