MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Judiciary A
By: Representative Campbell
AN ACT TO AMEND SECTIONS 41-29-501, 41-29-505, 41-29-507, 41-29-513, 41-29-515, 41-29-527 AND 41-29-536, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE ATTORNEY GENERAL TO APPLY FOR A COURT ORDER AUTHORIZING THE INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS; TO REVISE DEFINITIONS; TO EXPAND THE CRIMINAL OFFENSES FOR WHICH INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS ORDERS MAY BE ISSUED; TO REQUIRE REPORTS TO THE ADMINISTRATIVE OFFICE OF UNITED STATES COURTS; TO REVISE THE FILING OF MOTIONS; TO BRING FORWARD SECTION 41-29-509, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-29-501, Mississippi Code of 1972, is amended as follows:
41-29-501. As used in this article, the following terms shall have the meaning ascribed to them herein unless the context requires otherwise:
(a) "Aggrieved person" means a person who was a party to an intercepted wire, oral or other communication or a person against whom the interception was directed.
(b) "Attorney General" means the Attorney General of the State of Mississippi or any assistant Attorney General or special assistant Attorney General designated in writing by the Attorney General; provided, however, that the Attorney General shall not allow any person who is not a member of his office staff to perform any function under this chapter.
( * * *c) "Communication common
carrier" has the meaning given the term "common carrier" by 47
USCS 153(h) and shall also mean a provider of communication services.
( * * *d) "Contents," when used
with respect to a wire, oral or other communication, includes any information
concerning the identity of the parties to the communication or the existence,
substance, purport or meaning of that communication.
( * * *e) "Covert entry" means any
entry into or onto premises which if made without a court order allowing such
an entry under this article would be a violation of criminal law.
( * * *f) "Director" means the Director
of the Bureau of Narcotics or, if the director is absent or unable to serve,
the Assistant Director of the Bureau of Narcotics.
( * * *g) "Electronic, mechanical or
other device" means a device or apparatus primarily designed or used for
the nonconsensual interception of wire, oral or other communications.
( * * *h) "Intercept" means the
aural or other acquisition of the contents of a wire, oral or other
communication through the use of an electronic, mechanical or other device.
( * * *i) "Investigative or law
enforcement officer" means an officer of this state or of a political
subdivision of this state who is empowered by law to conduct investigations of,
or to make arrests for, offenses enumerated in Section 41-29-505, and who
has successfully completed a course of training on the legal and technical
aspects of interception and use of wire, oral and other communications approved
by the director or the Attorney General; an attorney authorized by law to
prosecute or participate in the prosecution of such offenses * * *; or a federal law enforcement officer
designated by the director or the Attorney General.
( * * *j) "Judge of competent
jurisdiction" means a justice of the Supreme Court or a circuit court
judge.
( * * *k) "Oral communication"
means an oral communication uttered by a person exhibiting an expectation that
the communication is not subject to interception under circumstances justifying
that expectation.
( * * *l) "Other communication"
means any transfer of an electronic or other signal, including fax signals,
computer generated signals, other similar signals, or any scrambled or
encrypted signal transferred via wire, radio, electromagnetic, photoelectric or
photooptical system from one party to another in which the involved parties may
reasonably expect the communication to be private.
( * * *m) "Prosecutor" means a
district attorney with jurisdiction in the county in which the facility or
place where the communication to be intercepted is located or a legal assistant
to the district attorney if designated in writing by the district attorney on a
case-by-case basis.
( * * *n) "Residence" means a
structure or the portion of a structure used as a person's home or fixed place
of habitation to which the person indicates an intent to return after any
temporary absence.
( * * *o) "Wire communication"
means a communication made in whole or in part through the use of facilities
for the transmission of communications by the aid of wire, cable or other like
connection between the point of origin and the point of reception furnished or
operated by a person engaged as a common carrier in providing or operating the
facilities for the transmission of communications and includes cordless
telephones, voice pagers, cellular telephones, any mobile telephone, or any
communication conducted through the facilities of a provider of communication
services.
SECTION 2. Section 41-29-505, Mississippi Code of 1972, is amended as follows:
41-29-505. A judge of competent jurisdiction in the circuit court district of the location where the interception of wire, oral or other communications is sought, or a circuit court district contiguous to such circuit court district, may issue an order authorizing interception of wire, oral or other communications only if (a) the prosecutor applying for the order shows probable cause to believe that the interception will provide evidence of the commission of a felony under the Uniform Controlled Substances Law or (b) the Attorney General applies for the order and shows probable cause to believe that the interception will provide evidence of murder, kidnapping, gambling, robbery, bribery, extortion, jury tampering, white-collar crime, human trafficking or racketeering, child abuse, child exploitation or cybercrime, or any conspiracy to commit any of the foregoing offenses.
SECTION 3. Section 41-29-507, Mississippi Code of 1972, is amended as follows:
41-29-507. (1) No person, agency of the state or political subdivision of the state, other than the Bureau of Narcotics and the Office of the Attorney General is authorized by this article to own, possess, install, operate or monitor an electronic, mechanical or other device. The Bureau of Narcotics and the Office of the Attorney General may be assisted by an investigative or law enforcement officer in the operation and monitoring of an interception of wire, oral or other communications, provided that an agent of the Bureau of Narcotics or an investigator of the Office of the Attorney General is present at all times.
(2) The director shall designate, in writing, the agents of the Bureau of Narcotics who are responsible for the possession, installation, operation and monitoring of electronic, mechanical or other devices for the bureau and the Attorney General shall designate, in writing, the investigators of his office who are responsible for the possession, installation, operation and monitoring of electronic or other devices for his office.
SECTION 4. Section 41-29-513, Mississippi Code of 1972, is amended as follows:
41-29-513. (1) To be valid, an application for an order authorizing the interception of a wire, oral or other communication must be made in writing under oath to a judge of competent jurisdiction in the circuit court district of the location where the interception of wire, oral or other communications is sought, or a circuit court district contiguous to such circuit court district, and must state the applicant's authority to make the application. An applicant must include the following information in the application:
(a) The identity of the individual making the application, if the application has been authorized by the Attorney General, or a statement that the application has been requested by the director and the identity of the prosecutor making the application, if the application has been requested by the director;
(b) A full and complete statement of the facts and circumstances relied on by the applicant to justify his belief that an order should be issued including:
(i) Details about the particular offense that has been, is being, or is about to be committed;
(ii) A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
(iii) A particular description of the type of communication sought to be intercepted; and
(iv) The identity of the person, if known, committing the offense and whose communications are to be intercepted;
(c) A full and
complete statement as to whether or not other investigative procedures have
been tried and failed or why they reasonably appear to be unlikely to succeed if
tried or to be too dangerous * * *;
(d) A statement of the period of time for which the interception is required to be maintained and, if the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication is first obtained, a particular description of the facts establishing probable cause to believe that additional communications of the same type will occur after the described type of communication is obtained;
(e) A statement whether a covert entry will be necessary to properly and safely install the wiretapping or electronic surveillance or eavesdropping equipment and, if a covert entry is requested, a statement as to why such an entry is necessary and proper under the facts of the particular investigation, including a full and complete statement as to whether other investigative techniques have been tried and have failed or why they reasonably appear to be unlikely to succeed or to be too dangerous if tried or are not feasible under the circumstances or exigencies of time;
(f) A full and complete statement of the facts concerning all applications known to the prosecutor making the application that have been previously made to a judge for authorization to intercept wire, oral or other communications involving any of the persons, facilities or places specified in the application and of the action taken by the judge on each application; and
(g) If the application is for the extension of an order, a statement setting forth the results already obtained from the interception or a reasonable explanation of the failure to obtain results.
(2) The judge may, in an ex parte in camera hearing, require additional testimony or documentary evidence in support of the application, and such testimony or documentary evidence shall be preserved as part of the application.
SECTION 5. Section 41-29-515, Mississippi Code of 1972, is amended as follows:
41-29-515. (1) Upon receipt of an application, the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral or other communications if the judge determines from the evidence submitted by the applicant that:
(a) There is probable cause to believe that a person is committing, has committed, or is about to commit a particular offense enumerated in Section 41-29-505;
(b) There is probable cause to believe that particular communications concerning that offense will be obtained through the interception;
(c) Normal
investigative procedures have been tried and have failed or reasonably appear
to be unlikely to succeed if tried or to be too dangerous * * *;
(d) There is probable cause to believe that the facilities from which or the place where the wire, oral or other communications are to be intercepted are being used or are about to be used in connection with the commission of an offense or are leased to, listed in the name of, or commonly used by the person; and
(e) A covert entry is or is not necessary to properly and safely install the electronic, mechanical or other device.
(2) Each order authorizing the interception of a wire or oral communication shall specify:
(a) The identity of the person, if known, whose communications are to be intercepted;
(b) The nature and location of the communications facilities as to which or the place where authority to intercept is granted;
(c) A particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates;
(d) A statement setting forth the identity of the prosecutor and stating that the director has requested the prosecutor to apply for the order authorizing the interception or the identity of the individual making the application and stating that the Attorney General has authorized the application for the order authorizing the interception;
(e) The time during which the interception is authorized, including a statement of whether or not the interception will automatically terminate when the described communication is first obtained; and
(f) Whether or not a covert entry is necessary to properly and safely install wiretapping, electronic surveillance or eavesdropping equipment.
(3) The order authorizing the interception of a wire, oral or other communication shall, upon request of the applicant, direct that a communication common carrier, landlord, custodian or other person furnish the applicant all 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 other person is providing the person whose communications are to be intercepted. Any communication common carrier, landlord, custodian or other person furnishing facilities or technical assistance is entitled to compensation by the applicant for the facilities or assistance at the prevailing rates.
(4) An order entered pursuant to this section may not authorize the interception of a wire, oral or other communication for longer than is necessary to achieve the objective of the authorization, and in no event may it authorize interception for more than thirty (30) days. The issuing judge may grant extensions of an order, but only upon application for an extension made in accordance with Section 41-29-513 and the court making the findings required by subsection (1) of this section. The period of extension may not be longer than the authorizing judge deems necessary to achieve the purposes for which it is granted, and in no event may the extension be for more than thirty (30) days. To be valid, each order and extension of an order shall provide that the authorization to intercept be executed as soon as practicable, be conducted in a way that minimizes the interception of communications not otherwise subject to interception under this article, and terminate on obtaining the authorized objective or within thirty (30) days, whichever occurs sooner.
(5) An order entered pursuant to this section may not authorize a covert entry into a residence solely for the purpose of intercepting a wire communication.
(6) An order entered pursuant to this section may not authorize a covert entry into or onto a premises for the purpose of intercepting an oral or other communication unless:
(a) The judge, in addition to making the determinations required under subsection (1) of this section, determines that:
(i) (A) The premises into or onto which the covert entry is authorized or the person whose communications are to be obtained has been the subject of a pen register previously authorized in connection with the same investigation; (B) the premises into or onto which the covert entry is authorized or the person whose communications are to be obtained has been the subject of an interception of wire communications previously authorized in connection with the same investigation; (C) that such procedures have failed; and (D) if the order is for the interception of other communications and requires covert entry, a court-ordered attempt to intercept the communications without using covert entry must have been made without success;
(ii) That the procedures enumerated in item (i) reasonably appear to be unlikely to succeed or to be too dangerous if tried or are not feasible under the circumstances or exigencies of time; and
(b) The order, in addition to the matters required to be specified under subsection (2) of this section, specifies that the covert entry is for the purpose of intercepting oral communications of two (2) or more persons and that there is probable cause to believe they are committing, have committed, or are about to commit a particular offense enumerated in Section 41-29-505.
(7) The judge of a court of competent jurisdiction may issue an order for the interception of wire, oral or other communications conducted within a vehicle, vessel, other mode of transportation or any location where a reasonable expectation of privacy might exist, provided the requirements of this section, where applicable, are met.
(8) Whenever an order authorizing interception is entered pursuant to this article, the order may require reports to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Reports shall be made at any interval the judge requires.
(9) A judge who issues an order authorizing the interception of a wire, oral or other communication may not hear a criminal prosecution in which evidence derived from the interception may be used or in which the order may be an issue.
(10) Unless otherwise
specified by the issuing judge, an order issued pursuant to this section
authorizing the interception of any cellular, portable, transportable or mobile
telephone or communication instrument is valid throughout the State of
Mississippi * * * and the cellular,
portable, transportable or mobile telephone or communication instrument may
continue to be monitored and intercepted when it is transported and used
outside the state where there is sufficient probable cause to establish a nexus
with criminal activity that could be prosecuted in this state.
SECTION 6. Section 41-29-527, Mississippi Code of 1972, is amended as follows:
41-29-527. (1) Within thirty (30) days after the date an order or the last extension, if any, expires or after the denial of an order, the issuing or denying judge shall report to the Administrative Office of the United States Courts:
(a) The fact that an order or extension was applied for;
(b) The kind of order or extension applied for;
(c) The fact that the order or extension was granted as applied for, was modified or was denied;
(d) The period of interceptions authorized by the order and the number and duration of any extensions of the order;
(e) The offense specified in the order or application or extension;
(f) The identity of the officer making the request and the prosecutor making the application; and
(g) The nature of the facilities from which or the place where communications were to be intercepted.
(2) In January of each year each prosecutor and the Attorney General shall report to the Administrative Office of the United States Courts the following information for the preceding calendar year:
(a) The information required by subsection (1) of this section with respect to each application for an order or extension made;
(b) A general description of the interceptions made under each order or extension, including the approximate nature and frequency of incriminating communications intercepted, the approximate nature and frequency of order communications intercepted, the approximate number of persons whose communications were intercepted, and the approximate nature, amount and cost of the manpower and other resources used in the interceptions;
(c) The number of arrests resulting from interceptions made under each order or extension and the offenses for which arrests were made;
(d) The number of trials resulting from interceptions;
(e) The number of motions to suppress made with respect to interceptions and the number granted or denied;
(f) The number of convictions resulting from interceptions, the offenses for which the convictions were obtained, and a general assessment of the importance of the interceptions; and
(g) The information required by paragraphs (b) through (f) of this subsection with respect to orders or extensions obtained.
(3) Any judge or prosecutor required to file a report with the Administrative Office of the United States Courts shall forward a copy of such report to the director if the application has been requested by the director. On or before January 5 of each year the director shall submit to the Mississippi Administrative Office of Courts a report of all intercepts, as defined in this subsection and as required by federal law which relates to statistical data only, conducted pursuant to this article and terminated during the preceding calendar year. Such report shall include:
(a) The report of judges and prosecuting attorneys forwarded to the director as required by this section;
(b) The number of Bureau of Narcotics personnel authorized to possess, install or operate electronic, mechanical or other devices;
(c) The number of Bureau of Narcotics and other law enforcement personnel who participated or engaged in the seizure of intercepts pursuant to this article during the preceding calendar year; and
(d) The total cost to the Bureau of Narcotics of all activities and procedures relating to the seizure of intercepts during the preceding calendar year, including costs of equipment, manpower and expenses incurred as compensation for use of facilities or technical assistance provided by the bureau.
(4) Any judge required to file a report with the Administrative Office of the United States Courts shall forward a copy of such report to the Attorney General if the application had been authorized by the Attorney General. On or before January 5 of each year the Attorney General shall submit to the Mississippi Administrative Office of Courts a report of all intercepts, as described in this subsection and as required by federal law which relates to statistical data only, conducted pursuant to this article and terminated during the preceding calendar year. Such report shall include:
(a) The report of judges forwarded to the Attorney General as required by this section;
(b) The number of personnel in the Office of Attorney General authorized to possess, install or operate electronic, mechanical or other devices;
(c) The number of personnel in the Office of Attorney General and other law enforcement personnel who participated or engaged in the seizure of intercepts pursuant to this article during the preceding calendar year; and
(d) The total cost to the Office of Attorney General for all activities and procedures relating to the seizure of intercepts during the preceding calendar year, including costs of equipment, manpower and expenses incurred as compensation for use of facilities or technical assistance provided by the office.
SECTION 7. Section 41-29-536, Mississippi Code of 1972, is amended as follows:
41-29-536. (1) (a)
Attorneys for the Bureau of Narcotics may file * * * an ex parte application with a
circuit court judge of the circuit court district in which the subscriber,
instrument or other device exists, for communication records which will be
material to an ongoing investigation of * * * an offense enumerated in Section 41-29-505(a).
(b) The Attorney General may file an ex parte application with a circuit court judge of the circuit court district in which the subscriber, instrument or other device exists, for communication records which will be material to an ongoing investigation of an offense enumerated in Section 41-29-505(b).
(2) The * * * application shall be made in
writing, under oath, and shall include the name of the subscriber, the number
or numbers, and the location of the instrument or other device, if known and
applicable. The * * * application authorized by subsection (1)(a) of this section
shall be accompanied by an affidavit from an agent of the Bureau of Narcotics * * * stating the facts
which the court shall consider in determining that probable cause exists to
believe that the information sought will be material to an * * * offense enumerated in Section 41-29-505(a). The
application authorized by subsection (1)(b) of this section shall be
accompanied by an affidavit from an investigator of the Office of the Attorney
General stating facts which the court shall consider in determining that
probable cause exists to believe that the information sought will be material
to an offense enumerated in Section 41-29-505(b).
(3) Upon consideration of * * * an application and the
determination that probable cause exists, the circuit court judge may order a
communications common carrier as defined by 47 USCS 153(h) or a provider of
communication services to provide the * * * applicant with
communication billing records, call records, subscriber information, or other
communication record information. The communications common carrier or the
provider of communication services shall be entitled to compensation by the
applicant at the prevailing rates * * *.
(4) The circuit court judge
shall seal each order issued pursuant to this section. The contents of * * * an application, affidavit and
order may not be disclosed except in the course of a judicial proceeding. Any
unauthorized disclosure of a sealed order, motion or affidavit shall be
punishable as contempt of court.
SECTION 8. Section 41-29-509, Mississippi Code of 1972, is brought forward as follows:
41-29-509. Prior to submitting a request for an order authorizing interception of wire, oral or other communications to a prosecutor, the director shall receive a written affidavit from one or more agents of the Bureau of Narcotics setting forth the information required by Section 41-29-513(1). The director shall submit all information required by Section 41-29-513(1) to the prosecutor. Upon receipt of the request from the director, the prosecutor shall be authorized to submit an application to a court of competent jurisdiction requesting the court to issue an order authorizing interception of wire, oral or other communications as provided in Section 41-29-515.
SECTION 9. This act shall take effect and be in force from and after July 1, 2016.