Bill Text: MS HB841 | 2023 | Regular Session | Introduced
Bill Title: Wiretapping; authorize county sheriff to apply to court for.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2023-01-31 - Died In Committee [HB841 Detail]
Download: Mississippi-2023-HB841-Introduced.html
MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary B
By: Representative Bell (21st)
House Bill 841
AN ACT TO AMEND SECTION 41-29-513, MISSISSIPPI CODE OF 1972, TO AUTHORIZE SHERIFFS TO APPLY FOR COURT AUTHORITY TO WIRETAP; TO AMEND SECTION 41-29-501, MISSISSIPPI CODE OF 1972, TO ADD "SHERIFF" TO THE DEFINITIONS FOR THE "INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS" ACT; TO AMEND SECTION 41-29-505, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; TO AMEND SECTION 41-29-507, MISSISSIPPI CODE OF 1972, TO ADD SHERIFF TO THE AUTHORIZED LISTS OF LAW ENFORCEMENT WHO MAY APPLY FOR WIRETAP; TO AMEND SECTIONS 41-29-509, 41-29-515, 41-29-527 AND 41-29-536, MISSISSIPPI CODE OF 1972, TO INCLUDE SHERIFFS TO THE PROCEDURES FOR JUDICIAL APPROVAL OF WIRETAPS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. 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) A statement that the application has been requested by the director or sheriff and the identity of the prosecutor making the application;
(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 or to be too dangerous if tried;
(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 2. 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) "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.
(c) "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.
(d) "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.
(e) "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.
(f) "Electronic, mechanical or other device" means a device or apparatus primarily designed or used for the nonconsensual interception of wire, oral or other communications.
(g) "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.
(h) "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, 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.
(i) "Judge of competent jurisdiction" means a justice of the Supreme Court or a circuit court judge.
(j) "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.
(k) "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.
(l) "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.
(m) "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.
(n) "Sheriff" is the duly elected or appointed sheriff of any county within the State of Mississippi.
( * * *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 3. 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 the prosecutor
applying for the order shows probable cause to believe that the interception
will provide evidence of the commission of a felony * * *.
SECTION 4. 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 or a sheriff of any county, is authorized by this article
to own, possess, install, operate or monitor an electronic, mechanical or other
device. The Bureau of Narcotics or sheriff may be assisted by an investigative
or law enforcement officer in the operation and monitoring of an interception
of wire, oral or other communications * * *.
(2) The director or sheriff
shall designate, in writing, the agents * * * who are responsible
for the possession, installation, operation and monitoring of electronic,
mechanical or other devices * * *.
SECTION 5. Section 41-29-509, Mississippi Code of 1972, is amended 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 or sheriff shall
receive a written affidavit from one or more agents * * * setting forth the
information required by Section 41-29-513(1). The director or sheriff shall
submit all information required by Section 41-29-513(1) to the prosecutor.
Upon receipt of the request from the director or sheriff, 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 6. 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 or to be too dangerous if tried;
(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 or sheriff has requested the prosecutor to apply 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) 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 unless otherwise specified by the issuing judge.
SECTION 7. 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 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, which shall include all intercepts approved for sheriffs. 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 and sheriff personnel authorized to possess, install or operate electronic, mechanical or other devices;
(c) The number * * * 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 * * * each law enforcement
agency 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.
SECTION 8. Section 41-29-536, Mississippi Code of 1972, is amended as follows:
41-29-536. (1) Attorneys
for the Bureau of Narcotics or the sheriff may file a motion 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 a felony violation * * *.
(2) The motion 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 motion shall be accompanied by an affidavit from an agent of the Bureau of Narcotics or sheriff's department which sets forth facts which the court shall consider in determining that probable cause exists to believe that the information sought will be material to an ongoing felony violation of the Uniform Controlled Substances Law.
(3) Upon consideration of the motion 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 Bureau of Narcotics or the sheriff 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 at the prevailing rates from the Bureau of Narcotics or the sheriff.
(4) The circuit court judge shall seal each order issued pursuant to this section. The contents of a motion, 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 9. This act shall take effect and be in force from and after July 1, 2023.
