1 SB26
2 214571-1
3 By Senator Butler
4 RFD: Judiciary
5 First Read: 11-JAN-22
6 PFD: 01/05/2022
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1 214571-1:n:08/03/2021:CNB/bm LSA2021-1599
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8 SYNOPSIS: This bill would authorize the Attorney
9 General to submit an application to a circuit court
10 judge to intercept any wire or electronic
11 communication if there is probable cause to believe
12 an individual is committing, has committed, or is
13 about to commit certain felony drug offenses.
14 This bill would specify the procedures for
15 obtaining an intercept order, the information that
16 must be included in an intercept order, the
17 limitations of an intercept order, and the means by
18 which the communication is to be intercepted.
19 This bill would provide for the extension of
20 intercept orders under certain conditions and would
21 prohibit the destruction of recorded communications
22 for a specified time frame.
23 This bill would allow an investigative
24 officer to submit a written request to the Attorney
25 General, through the Secretary of the Alabama State
26 Law Enforcement Agency, requesting the Attorney
27 General apply for an intercept order.
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1 This bill would specify under what
2 conditions recorded communications may be disclosed
3 and would provide civil and criminal penalties for
4 certain unauthorized disclosures.
5 Amendment 621 of the Constitution of Alabama
6 of 1901, as amended by Amendment 890, now appearing
7 as Section 111.05 of the Official Recompilation of
8 the Constitution of Alabama of 1901, prohibits a
9 general law whose purpose or effect would be to
10 require a new or increased expenditure of local
11 funds from becoming effective with regard to a
12 local governmental entity without enactment by a
13 2/3 vote unless: it comes within one of a number of
14 specified exceptions; it is approved by the
15 affected entity; or the Legislature appropriates
16 funds, or provides a local source of revenue, to
17 the entity for the purpose.
18 The purpose or effect of this bill would be
19 to require a new or increased expenditure of local
20 funds within the meaning of the amendment. However,
21 the bill does not require approval of a local
22 governmental entity or enactment by a 2/3 vote to
23 become effective because it comes within one of the
24 specified exceptions contained in the amendment.
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26 A BILL
27 TO BE ENTITLED
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1 AN ACT
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3 Relating to wiretapping; to add a new Chapter 2A to
4 Title 20, Code of Alabama 1975; to authorize the Attorney
5 General to submit an application to a circuit court judge to
6 intercept any wire or electronic communication under certain
7 circumstances; to specify the procedures for obtaining an
8 intercept order, the information that must be included in an
9 intercept order, the limitations of an intercept order, and
10 the means by which the communication is to be intercepted; to
11 provide for the extension of intercept orders under certain
12 conditions; to prohibit the destruction of recorded
13 communications for a specified time frame; to allow an
14 investigative officer to submit a written request to the
15 Attorney General, through the Secretary of the Alabama State
16 Law Enforcement Agency, requesting the Attorney General apply
17 for an intercept order; to specify under what conditions
18 recorded communications may be disclosed; to provide for civil
19 and criminal penalties for violations; to provide penalties
20 for unauthorized disclosures; and in connection therewith
21 would have as its purpose or effect the requirement of a new
22 or increased expenditure of local funds within the meaning of
23 Amendment 621 of the Constitution of Alabama of 1901, as
24 amended by Amendment 890, now appearing as Section 111.05 of
25 the Official Recompilation of the Constitution of Alabama of
26 1901.
27 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
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1 Section 1. This act shall be known and may be cited
2 as the Agent Billy Clardy III Act.
3 Section 2. Chapter 2A, commencing with Sections
4 20-2A-1, is added to Title 20, Code of Alabama 1975, to read
5 as follows:
6 20-2A-1.
7 For the purposes of this chapter, the following
8 terms shall have the following meanings:
9 (1) AGENCY. Alabama State Law Enforcement Agency.
10 (2) AGGRIEVED INDIVIDUAL. An individual who was a
11 party to an intercepted wire or electronic communication or an
12 individual against whom the interception was directed.
13 (3) ATTORNEY GENERAL. The Attorney General of the
14 State of Alabama or his or her designee.
15 (4) COMMUNICATION COMMON CARRIER. The term as
16 defined in 47 U.S.C. 153(11) or a provider of communication
17 services.
18 (5) CONTENTS. When used with respect to a wire or
19 electronic communication, any information concerning the
20 identity of the parties to the communication or the existence,
21 substance, purport, or meaning of that communication.
22 (6) ELECTRONIC COMMUNICATION. Any transfer of an
23 electronic or other signal, including any fax signal, computer
24 generated signal, other similar signal, or scrambled or
25 encrypted signal transferred via wire, radio, electromagnetic,
26 photoelectric, or photo optical system from one party to
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1 another in which the involved parties may reasonably expect
2 the communication to be private.
3 (7) ELECTRONIC, MECHANICAL, OR OTHER DEVICE. A
4 device or apparatus primarily designed or used for the
5 nonconsensual interception of wire or electronic
6 communications.
7 (8) INTERCEPT. The aural or other acquisition of the
8 contents of a wire or electronic communication through the use
9 of an electronic, mechanical, or other device.
10 (9) INVESTIGATIVE OFFICER. A special agent of the
11 agency, a special agent of the Attorney General's office, or
12 any other law enforcement officer designated by the secretary
13 of the agency who meets guidelines established by the
14 secretary and who has successfully completed a training course
15 approved by the Attorney General on the legal and technical
16 aspects of the interception and use of wire or electronic
17 communications.
18 (10) JUDGE OF COMPETENT JURISDICTION. A circuit
19 court judge in the county where the intercept is expected to
20 take place or a circuit court judge designated by the Chief
21 Justice of the Supreme Court or by the Alabama Supreme Court
22 to hear intercept applications or where the interception takes
23 place.
24 (11) PROSECUTOR. A district attorney or his or her
25 designee.
26 (12) SECRETARY. The Secretary of the Alabama State
27 Law Enforcement Agency or his or her designee.
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1 (13) WIRE COMMUNICATION. A communication made in
2 whole or in part through the use of facilities for the
3 transmission of communications by the aid of wire, cable, or
4 other like connection between the point of origin and the
5 point of reception furnished or operated by an individual
6 engaged as a common carrier in providing or operating the
7 facilities for the transmission of communications.
8 20-2A-2.
9 (a) No individual or other agency, other than the
10 Alabama State Law Enforcement Agency, may own or possess an
11 electronic, mechanical, or other device.
12 (b) Only investigative officers may install,
13 operate, or monitor an electronic, mechanical, or other
14 device.
15 (c) Any law enforcement officer may assist in the
16 operation and monitoring of an interception of a wire or
17 electronic communication as long as an investigative officer
18 is present at all times.
19 (d) The agency shall perform audits on the
20 electronic, mechanical, or other devices.
21 (e) The secretary may approve the use of an
22 electronic, mechanical, or other device that is being used by
23 a federal agency, as long as the approval is made in writing
24 and attached to the original affidavit.
25 20-2A-3.
26 Orders authorizing, approving, or extending the
27 interception of wire or electronic communications may be
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1 granted, subject to this chapter, when the intercept may
2 provide or has provided evidence an individual is committing,
3 has committed, or is about to commit a felony drug offense
4 included in Article 5, commencing with Section 13A-12-201, of
5 Chapter 12, of Title 13A.
6 20-2A-4.
7 (a)(1) An investigative officer may submit a written
8 request to the secretary requesting the secretary apply for an
9 intercept order. If the secretary approves the request, the
10 secretary may submit a written request to the Attorney General
11 requesting the Attorney General apply for an intercept order
12 to a judge of competent jurisdiction. The written request
13 shall be on a form approved by the Attorney General and shall
14 include an affidavit.
15 (2) The affidavit shall include all of the
16 following:
17 a. The identity of the investigating officer making
18 the application.
19 b. A statement of the facts and circumstances relied
20 upon by the applicant to justify the belief that an order
21 should be issued, including all of the following:
22 1. Details of the specific offense that has been
23 committed, is being committed, or will be committed.
24 2. A particular description of the nature and
25 location of the communications facilities from which, or the
26 place where, the communication is to be intercepted.
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1 3. A particular description of the type of
2 communication sought to be intercepted.
3 4. The identity of the individual, if known, whose
4 communications are to be intercepted.
5 c. A statement that other investigative procedures
6 have been attempted and failed, reasonably appear to be
7 unlikely to succeed if attempted, or are too dangerous to be
8 attempted.
9 d. A statement of the period of time the intercept
10 is required to be maintained, including a statement of whether
11 the intercept will automatically terminate when the described
12 communication is first obtained. If the authorization for the
13 intercept does not automatically terminate when the described
14 type of communication is obtained, facts that establish
15 probable cause to believe additional communications of the
16 same type will occur.
17 e. A statement of the facts concerning all previous
18 applications known to the applicant, made to any judge for
19 approval of an intercept involving the same individual,
20 facilities, or places specified in the application and the
21 action taken by the judge, if known.
22 f. If the application is for the extension of an
23 order, a statement explaining the results obtained from the
24 intercept or a reasonable explanation of the failure to obtain
25 required results.
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1 (b)(1) The Attorney General shall review the request
2 and decide whether it is appropriate to submit an application
3 to a judge of competent jurisdiction for an intercept order.
4 (2) If the Attorney General decides to submit an
5 application, he or she shall notify the secretary or the
6 investigative officer.
7 (3) If the Attorney General declines to submit an
8 application, he or she shall send the secretary or the
9 investigative officer a notice of declination within 10 days.
10 20-2A-5.
11 (a) Upon receiving an application from the Attorney
12 General for an intercept order, a judge of competent
13 jurisdiction may enter an ex parte intercept order as
14 requested or as modified, authorizing an intercept within the
15 territorial jurisdiction of the court if the judge determines
16 all of the following:
17 (1) There is probable cause to believe that an
18 individual is committing, has committed, or is about to commit
19 a felony drug offense included in Article 5, commencing with
20 Section 13A-12-201, of Chapter 12, of Title 13A.
21 (2) There is probable cause to believe that specific
22 communications concerning that offense will be obtained
23 through the intercept.
24 (3) Normal investigative procedures have been
25 attempted and have failed, reasonably appear to be unlikely to
26 succeed if attempted, or are too dangerous to be attempted.
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1 (4) There is probable cause to believe that the
2 facilities from which, or the place where, the wire or
3 electronic communications are to be intercepted are being
4 used, or are about to be used, in connection with the
5 commission of the offense, or are being leased to, listed in
6 the name of, or commonly used by the individual described in
7 the application.
8 (b) Each intercept order authorizing or approving
9 the interception of a wire or electronic communication shall
10 specify all of the following:
11 (1) The identity of the individual, if known, whose
12 communications are to be intercepted.
13 (2) The nature and location of the communications
14 facilities which, or the place where, authority to intercept
15 is granted, and the means by which the intercept may be made.
16 (3) A description of the type of communication
17 sought to be intercepted and a statement of the particular
18 offense to which it relates.
19 (4) The identity of the agency authorized to
20 intercept the communications and the individual requesting the
21 application.
22 (5) The period of time the intercept is authorized,
23 including a statement of whether the intercept automatically
24 terminates when the described communication is first obtained.
25 (c) The intercept order authorizing the intercept,
26 upon request of the applicant, shall direct that a
27 communication common carrier, custodian, or other individual
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1 furnish the applicant all information, facilities, and
2 technical assistance necessary to accomplish the intercept
3 unobtrusively and with a minimum of interference with the
4 services that the carrier, custodian, or other individual is
5 providing the individual whose communications are to be
6 intercepted. Any communication common carrier, custodian, or
7 other individual furnishing facilities or technical assistance
8 shall be compensated by the applicant for reasonable expenses
9 incurred in providing facilities or assistance at the
10 prevailing rates.
11 (d)(1) An intercept order entered pursuant to this
12 chapter may not authorize the interception of a wire or
13 electronic communication for any period longer than is
14 necessary to achieve the objective of the authorization, and
15 in no event for more than 30 days. The 30-day period begins
16 either when the investigative officer first begins to conduct
17 an intercept under the intercept order, or 10 days after the
18 order is entered, whichever is sooner.
19 (2) The issuing judge may grant extensions of an
20 intercept order, but only upon an application for an extension
21 made in accordance with this chapter. The period of extension
22 may not be for any period longer than the authorizing judge
23 deems necessary to achieve the objective for which it is
24 granted, and in no event may the extension be for more than 30
25 days. To be valid, each order and extension of an order shall
26 provide that the authorization to intercept be executed as
27 soon as practicable, be conducted in a way that minimizes the
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1 interception of communications not otherwise subject to
2 interception under this chapter, and terminate upon obtaining
3 the authorized objective or within 30 days, whichever occurs
4 sooner.
5 (e) Whenever an order authorizing an intercept is
6 entered pursuant to this chapter, the order may require
7 reports to the judge who issued the order showing what
8 progress has been made toward achieving the authorized
9 objective and the need for continued interception. Reports
10 shall be made at any interval required by the judge.
11 (f) A judge who issues an order authorizing the
12 interception of a wire or electronic communication may not
13 hear a criminal prosecution in which evidence derived from the
14 interception may be used or in which the order may be an
15 issue.
16 (g) For jurisdictional purposes, the territorial
17 jurisdiction pursuant to subsection (a) includes both the
18 location