SB363: Bill Text

LRB-4067/1

MGD&RLR:all:kjf

2001 - 2002 LEGISLATURE

2001 Senate BILL 363

January 8, 2002 - Introduced by Senators Baumgart, Darling and Roessler, cosponsored by Representatives Kaufert, Freese, Hahn, Hines, Jeskewitz, Ladwig, M. Lehman, Lippert, D. Meyer, Musser, Olsen, Ott, Owens, Petrowski, Ryba, Urban and Vrakas. Referred to Committee on Judiciary, Consumer Affairs, and Campaign Finance Reform.

SB363,3,2 An Act to repeal 343.237 (3) (d), 940.20 (2m) (a) 2., 940.20 (4), 940.20 (5), 940.203, 940.205, 940.207, 941.31, 943.013, 943.015, 947.012 (1) (a), 947.0125 (2) (a), 947.0125 (2) (b) and 947.015; to renumber 947.02, 947.04, 947.06 and 968.40 (1); to renumber and amend 440.475 (1), 939.648 (2) (c), 940.41, 940.42, 940.43, 940.44, 940.45, 940.46, 940.47, 940.48, 940.49, 946.64, 968.26 and 968.30 (5); to consolidate, renumber and amend 940.20 (2m) (a) (intro.) and 1.; to amend 48.685 (5) (bm) 4., 59.54 (6), 115.31 (2g), 118.19 (4) (a), 165.55 (3), 165.70 (1) (b), 301.048 (2) (bm) 1. a., 786.36 (4), 895.01 (1) (g), 895.035 (4a) (a) 2., 938.396 (2) (j), 938.78 (3), 939.22 (21) (k), 939.22 (21) (L), 939.31, 939.32 (1) (c), 939.632 (1) (e) 1., 939.632 (1) (e) 3., 939.648 (2) (intro.), (a) and (b) (intro.), 939.648 (3) and (4), 940.20 (2), 940.20 (2m) (title), 940.20 (2m) (b), 940.20 (6) (b) (intro.), 940.201 (1) (b), 941.26 (1) (a), 941.26 (2) (a), 941.26 (3), 941.27 (2), 941.38 (1) (b) 11., 941.38 (1) (b) 12., 943.011 (1) (b), 943.017 (2m) (a) 2., 943.05, 943.201 (1) (a), 946.82 (4), 968.27 (intro.), 968.28, 968.30 (1) (intro.), 968.30 (4) (intro.), 968.30 (7) (d) (intro.), 968.31 (3), 969.02 (4m), 969.03 (2m), 969.08 (10) (b), 971.37 (1m) (a) 2. and 973.055 (1) (a) 1.; to repeal and recreate 968.31 (2m) (intro.); and to create 165.25 (2m), 440.475 (1) (b), 440.475 (1) (c), 939.22 (21) (Lo), 939.32 (1) (f) and (g), 939.32 (1) (h), 939.648 (2) (c) 3., 940.204, 941.375, 941.38 (1) (b) 12o., 943.0135, 943.20 (3) (e), 946.605 (1c), 946.605 (1e), 946.64 (2), 946.64 (3), 946.78, 946.79, 947.03, 947.05, 947.07, 947.08, 968.26 (2), 968.265, 968.27 (14m), 968.275, 968.30 (6m), 968.30 (11), 968.31 (2) (am), 968.31 (2g), 968.40 (1) (a) and 971.367 of the statutes; relating to: prohibitions related to explosives, destructive devices, detonators, or weapons of mass destruction; increased penalties for crimes committed with intent to terrorize; causing bodily harm or threatening to cause bodily harm to a public officer or employee and threatening to damage the property of a public officer or employee; communicating with or harassing or intimidating jurors; threatening to cause bodily harm or property damage; providing or soliciting material support for acts of terrorism; money laundering; making false statements to financial institutions and the definition of personal identification document; prohibitions related to automatic weapons; theft of a firearm or a machine gun; interfering with disarmament of an explosive or a destructive device; crimes that may entail the interception of wire, electronic, or oral communication, interception of communications in emergency situations, roving electronic surveillance, and providing assistance to persons authorized to engage in electronic surveillance; grand jury authority; John Doe proceedings; court orders for disclosure of the existence of depository accounts with financial institutions; court orders for disclosure regarding subscribers of electronic communications services; access to license and identification card photographs; the procedure for making a legal name change; and providing penalties.

Analysis by the Legislative Reference Bureau

This bill makes a number of changes in the criminal code to create new criminal offenses and to revise or repeal existing prohibitions, most of which relate to terrorism and certain types of threats. It also makes a number of changes in the law relating to criminal procedure and investigations. The rest of this analysis describes relevant provisions of current law in general terms and describes the changes made by this bill.

Terrorism and other crimes

Prohibitions related to explosives, destructive devices, detonators, and weapons of mass destruction

Under current law, it is a Class C felony to make, buy, transport, possess, or transfer explosives with intent to use the explosives to commit a crime or knowing that another intends to use the explosives to commit a crime. (See below, Penalties for crimes created by this bill, for a listing of the maximum fine, term of confinement, and sentence length for each of the offenses described in this analysis.) It is a Class E felony to make, buy, sell, transport, possess, use, or transfer an improvised explosive device, regardless of whether any person has intent to use the improvised explosive device to commit a crime. An improvised explosive device is defined as a device that contains explosive material and a means of detonating the explosive material, and which is capable of causing bodily harm, great bodily harm, death, or property damage.

The bill expands the prohibitions concerning explosives and threats. The bill defines a "destructive device" as a device that contains an explosive or an incendiary and is designed or configured to cause substantial bodily harm, death, or property damage, including a bomb, grenade, rocket, missile or mine. "Destructive device" also includes an overpressure device, which is defined as a container filled with an explosive gas or an expanding gas or liquid that is designed or constructed to break, fracture, or rupture in a manner capable of causing substantial bodily harm, death, or property damage. A "weapon of mass destruction" is defined as a poisonous gas, a toxic chemical, a precursor of a poisonous gas or toxic chemical, or a biological agent; a device that is designed or intended to release any such substance; or a device that is designed or intended to release radiation or radioactivity at a level that is dangerous to human life.

The bill makes it a crime to manufacture, buy, sell, offer to sell, transfer, distribute, or possess an explosive, destructive device, or a weapon of mass destruction, regardless of the actor's intent. If the crime concerns an explosive or a destructive device it is a Class C felony, and if it concerns a weapon of mass destruction, it if a Class A felony. It is also a Class C felony to engage in any of these activities with respect to a detonator with intent to commit a crime. The bill also makes it a Class C felony to manufacture, buy, sell, offer to sell, transfer, distribute, or possess a component of a destructive device or a component of a weapon of mass destruction with intent that the component be used to construct or assemble a destructive device or weapon of mass destruction, whichever is applicable.

The bill makes it a Class B felony to use or attempt to use an explosive or a weapon of mass destruction, and a Class A felony to use or attempt to use a weapon of mass destruction. The bill also makes it a Class B felony to use or attempt to use a detonator with intent to commit a crime.

Under the bill, a person who manufactures, possesses, transfers, transports, delivers, distributes, displays, or deploys a facsimile of a destructive device or a weapon of mass destruction with intent to alarm, intimidate, threaten, terrify, or harass another is guilty of a Class D felony.

The bill creates several exemptions to the prohibitions related to explosives, destructive devices, detonators, and weapons of mass destruction. The crimes do not apply to military or law enforcement personnel acting within the scope of their official duties; to persons authorized to manufacture, deal in, transport, or use explosives, destructive devices, or detonators, with respect to the authorized activities; or to persons conducting research or education at a university, college, technical college, or secondary school, if the activity is authorized by the institution and not otherwise prohibited by law. The prohibitions are also inapplicable to otherwise lawful activities related to fireworks, pesticides, ammunition for firearms, and explosives used in medicines.

Terrorism penalty enhancer

Current law authorizes increased penalties for certain felonies (crimes punishable by incarceration in prison) that are committed with intent to terrorize. The penalty enhancer is applicable to felonies committed under one of the following circumstances: 1) the felony results in bodily harm or death to another; 2) the felony results in damage of $25,000 or more to the property of another; or 3) the felony involves the use of force or violence or the threat of force or violence. A person has intent to terrorize if he or she has intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision. If a person is convicted of a felony and the terrorism enhancer is found to apply, the maximum fine for the underlying felony may be increased by up to $50,000, and the maximum term of imprisonment for the underlying felony may be increased by up to ten years.

The bill expands intent to terrorize to include intent to do any of the following: influence the conduct of a governmental unit; influence an official policy decision or the official conduct of a public officer or public employee; punish a public officer or public employee for a prior policy decision, other official decision, or official conduct; or intimidate or coerce a civilian population. The bill also makes criminal damage to property, which is a misdemeanor (a crime punishable by incarceration in jail), a crime to which the terrorism penalty enhancer may apply if it is committed with intent to terrorize.

Threats involving public harm

Current law prohibits a person from intentionally conveying or causing to be conveyed any false information, knowing such information to be false, concerning an attempt to destroy property by means of an explosive. This crime of making a bomb scare is a Class E felony.

Under this bill, no person may threaten to cause the death of or bodily injury to any person or to damage any person's property by any means under any of the following circumstances: 1) the actor intends to prevent the occupation of or cause the evacuation of a building, dwelling, school premises, vehicle (which is defined to include any bus, train, boat, or airplane), facility of public transportation, or place of public assembly or any room within a building, dwelling, or school premises; 2) the actor intends to cause serious public inconvenience; 3) the actor intends to cause an interruption or impairment of governmental operations or public communication, of transportation, or of a supply of water, gas, or other public service; or 4) the actor creates an unreasonable and substantial risk of causing one of the occurrences described in items 1 to 3 of this paragraph and is aware of that risk. A person who violates this prohibition is guilty of a Class E felony, unless the person thereby contributes to the death of any person. In that case, the person is guilty of a Class C felony.

The bill expands the bomb scare crime to prohibit making or conveying a threat, knowing it to be false, to use or attempt to use an explosive, a destructive device, or a weapon of mass destruction. The threat crime is a Class E felony. However, if a person makes or conveys a threat to use or attempt to use an explosive, a destructive device, or a weapon of mass destruction under any of the four circumstances listed in the previous paragraph, the person is guilty of a Class C felony.

Battery and threats against a public officer or employee; battery against a public transit vehicle passenger

Under current law, no person may intentionally cause bodily harm to another person without the other person's consent. A person who violates this prohibition is guilty of a Class A misdemeanor. More severe penalties apply if the victim suffers substantial bodily harm or great bodily harm. For example, if a person causes substantial bodily harm to another with intent to cause substantial bodily harm, the person is guilty of a Class D felony. Current law also provides more severe penalties for battery committed under certain circumstances against any of the following: 1) an elected or appointed state or local public officer; 2) an officer or employee of a technical college district or school district; 3) an officer or employee of a prison or detention facility; 4) a probation, extended supervision, or parole agent or a person authorized to supervise a juvenile on aftercare; 5) a law enforcement officer or fire fighter; 6) a person working in a hospital emergency room, an emergency medical technician, a first responder (a person employed or assigned to provide emergency medical care to another before the arrival of an ambulance), or an ambulance driver; or 7) an operator of a vehicle providing transportation service to the general public (a public transit vehicle). In all of these "special circumstances" battery cases, other than those in which the victim is a public officer, the prosecutor must prove that the actor knew that the victim was one of the individuals described above or that the victim was acting in his or her official capacity at the time of the battery or both. In cases involving a public officer, the prosecutor must show that the battery was committed in order to influence the action of the public officer or as a result of any action taken within an official capacity. A person who commits special circumstances battery is guilty of a Class D felony, unless the victim was a public officer, an officer or employee of a technical college district or school district, or the operator of a public transit vehicle, in which case the offense is a Class E felony.

Finally, a person committing battery is guilty of a Class E felony if the bodily harm is inflicted: 1) while the victim was a passenger of a public transit vehicle; 2) after the offender forces or directs the victim to leave a public transit vehicle; or 3) as the offender prevents, or attempts to prevent, the victim from gaining lawful access to a public transit vehicle.

Through separate statutory provisions, current law also prohibits intentionally causing bodily harm or threatening to cause bodily harm to a judge or an official, employee, or agent of the department of revenue, commerce, or workforce development (a covered government employee) or a family member of a a covered government employee. This prohibition applies if: 1) the actor knows or should have known that the victim is a covered government employee or a member of his or her family; 2) the covered government employee is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity; and 3) there is no consent by the person harmed or threatened. A person violating one of these prohibitions is guilty of a Class D felony.

This bill repeals the special circumstances battery provisions that apply exclusively to state or local government employees and the battery/threats prohibitions applicable to covered government employees and creates a new offense applicable to all state or local public officers or employees. Under this bill, no person may intentionally cause bodily harm or threaten to cause bodily harm to any state or local public officer or employee if all of the following apply: 1) the actor knows or should have known that the victim is a state or local public officer or employee or a member of his or her family; 2) the state or local public officer or employee is acting in an official capacity at the time of the act or threat, the act or threat, is intended to influence an action by the public officer or employee in an official capacity, or the act or threat is in response to any action taken in an official capacity; and 3) there is no consent by the person harmed or threatened. A person violating this prohibition is guilty of a Class D felony. The bill also makes battery against an operator, passenger, or potential passenger of a public transit vehicle into a Class D felony.

Unlawful communications with jurors

Current law prohibits communicating with a person summoned or serving as a juror with the intent to influence the person with respect to his or her involvement in a legal proceeding, unless the communication occurs in the regular course of the legal proceeding. A person who violates this prohibition is guilty of a Class E felony. This bill makes that prohibition applicable to communications made with the same intent to family members of the person summoned or serving as a juror. It also specifies that the prohibition applies to both direct and indirect communication. In addition, under the bill, no person may communicate directly or indirectly with a juror, a former juror, or a family member of a juror or former juror with the intent to annoy, harass, frighten, threaten, abuse, or intimidate the juror, the former juror, or the family member because of a verdict returned by the juror or because of the juror's participation in any criminal or civil trial or matter. A person who violates this prohibition is guilty of a Class E felony.

This bill establishes a higher penalty for either of these juror-related offenses if any of the following applies: 1) the act is accompanied by force or violence, or attempted force or violence, upon the juror, the prospective juror, or the former juror or one of his or her family members; 2) the act is accompanied by damage to the property of the juror, the prospective juror, or the former juror or one of his or her family members; 3) the act is accompanied by an express or implied threat of force, violence, or property damage; 4) the act is in furtherance of any conspiracy; 5) the person has a prior conviction for juror, witness, or victim intimidation under any federal or state law; or 6) the act is committed at another person's request and for monetary gain or some other benefit. (These circumstances are the same as those that differentiate the Class A misdemeanor version of witness or victim intimidation from the Class E felony version of witness or victim intimidation.) A person who violates either of the prohibitions described in the preceding paragraph under any of these circumstances is guilty of a Class D felony.

Finally, this bill makes certain other statutes that relate to witness or victim intimidation applicable to these juror-related offenses. Thus, a person who attempts to commit any of the juror-related offenses described in this section of the analysis is guilty of the offense he or she attempts. By contrast, a person attempting to commit a typical Class D or Class E felony is subject to one-half the maximum penalty for the completed offense. In addition, if a court having jurisdiction over a criminal matter is provided evidence that any of these juror-related offenses has occurred or is reasonably likely to occur, the court may issue certain orders to prevent the offense from occurring or recurring. Finally, this bill permits a court to revoke the release of a defendant who commits or causes or encourages another person to commit any of these juror-related offenses.

Threats to cause death, bodily harm, or property damage

Under current law, no person may make a telephone call and threaten to cause bodily harm to another person or to damage any person's property if the call and the threat are made with intent to frighten, intimidate, threaten, abuse, or harass the other person. In addition, no person, with intent to frighten, intimidate, threaten, abuse, or harass another person (the victim), may: 1) send the victim electronic mail (e-mail) or any other computerized message threatening to cause bodily harm to any person or to damage any person's property; or 2) send any e-mail or any other computerized message, with the reasonable expectation that the victim will receive it, threatening to cause bodily harm to any person or to damage any person's property. A person who violates one of these prohibitions is guilty of a Class B misdemeanor. (A person convicted of a Class B misdemeanor may be fined not more than $1,000 or imprisoned for not more than 90 days or both.)

Under this bill, no person may threaten to cause the death of or bodily harm to another person or to damage another person's property with intent to frighten, intimidate, threaten, abuse, or harass any person. A person who violates this prohibition is guilty of a Class A misdemeanor.

Material support for terrorism

Under current law, a person is a party to a crime and may be convicted of committing the crime if the person directly commits the crime, intentionally aids and abets the commission of the crime, is a party to a conspiracy to commit the crime, or hires, counsels, or otherwise procures another to commit the crime. A person may be convicted of solicitation, if the person with intent that a felony be committed, advises another to commit that felony. The penalty for solicitation is generally less than the penalty for commission of the crime. A person may also be convicted of conspiracy if the person, with intent that a crime be committed, agrees or combines with another to commit the crime, as long as one of the parties to the conspiracy commits an act to effect the object of the conspiracy. The penalty for conspiracy is generally the same as the penalty for the completed crime, except that a person may not be imprisoned for life upon conviction of conspiracy.

The bill prohibits a person from soliciting or collecting material support if he or she knows or has reason to know that the material support is intended to be used to plan, prepare, commit, or escape after committing an act of terrorism. The bill also prohibits a person from providing material support to another if he or she knows or has reason to know that the material support is intended to be used to plan, prepare, commit, or escape after committing an act of terrorism. An act of terrorism is a crime to which the terrorism penalty enhancer (see above, Terrorism penalty enhancer) applies, or an act committed outside this state that would be a crime to which the terrorism penalty enhancer would apply if committed in this state. The crimes relating to soliciting or collecting material support for acts of terrorism are Class C felonies.

Current law requires a charitable organization to be registered with the department of regulation and licensing (DRL) in order to be able to solicit contributions in this state. Current law also requires professional fund-raisers (persons paid to solicit charitable contributions) and fund-raising counsel (persons paid to plan, manage, or give advice concerning the solicitation of charitable contributions) to be registered with DRL. DRL may deny, limit, suspend, or revoke the registration of a charitable organization, professional fund-raiser, or fund-raising counsel that does any of the following: 1) makes a false statement in a registration statement, annual report, or other information required to be filed with DRL; or 2) violates a statute or rule that regulates the solicitation of charitable contributions. This bill provides that DRL may deny, limit, suspend, or revoke the registration of a charitable organization, professional fund-raiser, or fund-raising counsel that violates the prohibitions created in the bill against soliciting or collecting material support that is intended to be used to plan, prepare, commit, or escape after committing acts of terrorism.

Money laundering

Current law provides various penalties for theft and related property crimes. This bill prohibits various types of money laundering and provides penalties for violations. Examples of the money laundering that the bill prohibits include: 1) acquiring proceeds that a person knows or has reason to know are derived from a felony, if the person knows or has reason to know the acquisition is designed to conceal the nature, location, source, ownership or control of the proceeds; 2) transferring or possessing currency or other monetary instruments that a person knows or has reason to know are intended to be used to commit a felony; and 3) planning the transfer of proceeds that a person knows or has reason to know are derived from a felony, if the person knows or has reason to know that the transfer is designed to conceal the nature, location, source, ownership or control of the proceeds. The bill makes money laundering a Class D felony, except that a person convicted of money laundering may be fined not more than $10,000 or twice the value of the proceeds or monetary instruments involved in the crime, whichever is greater.

False statements to financial institutions

Current law prohibits various fraudulent acts related to financial transaction cards, including making false statements for the purpose of obtaining a financial transaction card and forging a financial transaction card. Current law also prohibits the use of another's personal identifying information or a personal identification document belonging to another without that person's consent to obtain credit, money, goods, services, or anything else of value. These offenses are penalized as Class A misdemeanors or Class E, D, or C felonies, depending on the circumstances.

The bill prohibits making various false statements in connection with a transaction with a financial institution. The prohibited activities include: 1) falsifying or concealing the identity of a person; 2) making a false statement or representation regarding a person; 3) making or using a writing that contains false information regarding the identity of a person; or 4) using or presenting a false personal identification document or false personal identifying information. The crimes related to false statements to financial institutions are Class E felonies.

Crimes related to firearms

Under current law theft of property that does not exceed $2,500 in value is a Class A misdemeanor. Theft of property that exceeds $2,500 in value, or theft of a firearm is a Class D felony. The bill makes theft of a firearm that is owned by a law enforcement agency, the U.S. armed forces, a reserve component of the U.S. armed forces, or the National Guard, or theft of a machine gun, an explosive, or a destructive device, regardless of who owns the machine gun, explosive, or destructive device, a Class C felony.

Under current law it is a Class E felony to sell, possess, use, or transport a machine gun or other fully automatic weapon. The bill makes this crime a Class D felony and specifically prohibits transferring a machine gun or fully automatic weapon, even if the transfer does not constitute a sale. The bill also clarifies the exceptions under which the prohibitions regarding machine guns do not apply.

Interfering with disarmament of explosives

Under current law the following acts are crimes; interfering with fire fighting (which, in the variant having the most severe penalty, is Class E felony); obstructing a law enforcement officer (which is either a Class A misdemeanor or a Class D felony); or obstructing emergency or rescue personnel (which is a Class E misdemeanor if it endangers another's safety or a Class C felony if it contributes to another's death). The bill makes it a Class E felony to interfere with or obstruct a public safety official while that official is searching for, disarming, or destroying an explosive or a destructive device.

Criminal procedure and investigations

Electronic surveillance

Current law generally prohibits the interception of many types of communications, including telephone calls, e-mail, and face-to-face conversations. Current law, however, authorizes law enforcement officers and prosecutors to engage in electronic surveillance, and intercept communications, under certain circumstances if the interception may provide or has provided evidence of the commission of the offense of homicide, felony murder, kidnapping, commercial gambling, bribery, extortion, dealing in controlled substances, the commission of certain computer crimes, or the conspiracy to commit any of those offenses. In order for a law enforcement officer or a prosecutor to engage in electronic surveillance, the attorney general and the district attorney must jointly apply in writing and under oath to the chief judge for the judicial administrative district in which the electronic surveillance is to occur for an order authorizing the electronic surveillance. The court may grant the order if it determines, based on the information presented, that: 1) there is probable cause to believe that an individual is committing, has committed, or is about to commit one of the offenses listed above; 2) there is probable cause to believe that particular communications concerning that offense will be obtained through the electronic surveillance; 3) other investigative procedures have been tried and have failed, are unlikely to succeed if tried, or are too dangerous to try; and 4) there is probable cause to believe that the facilities from which or the place where the interception is to occur are or will be used in the commission of the offense or are leased to, listed in the name of, or commonly used by the person committing or about to commit the offense. The court's order may authorize electronic surveillance for no longer than 30 days, although it may be extended for up to an additional 30 days. The order must specify, among other things, the nature and location of the communications facilities being used or the place being used for the communications that will be intercepted.

This bill makes several changes to these provisions. First, under the bill, a court may authorize electronic surveillance if it may provide or has provided evidence of the commission any felony that is dangerous to life, limb, or property, not just one of the crimes listed in the first paragraph of this section of the analysis.

Second, the bill permits a law enforcement officer or a prosecutor to obtain an order permitting electronic surveillance in an emergency situation (a situation involving immediate danger of death or great bodily harm) based on an application made under oath by telephone, radio, or other means of electronic communication. The application must be approved in advance by either the attorney general or the district attorney (as opposed to by both of them). In order to grant the order, the court, in addition to making the determinations listed in the first paragraph of this section of the analysis, must determine, based on information presented by the applicant, that requiring a written application may increase or prolong the risk of death or great bodily harm that the emergency situation involves.

An order authorizing an emergency wiretap expires, at the latest, 48 hours after its issuance. Before that time period expires, the applicant must apply to the chief judge in writing -- in the same manner as if he or she were applying in a nonemergency situation -- for approval of the electronic surveillance. The court must grant or deny the application (applying the law governing nonemergency situations) within 48 hours after entering the emergency wiretap order. If the court grants the application, the electronic surveillance may continue under the same terms as any nonemergency order. If the court denies the application or if the applicant for the emergency wiretap order never files a subsequent written application, the emergency wiretap order expires immediately, and evidence from any communication intercepted under the emergency wiretap order may be excluded from evidence in court.

Third, the bill authorizes law enforcement officers and prosecutors to obtain "roving interception orders." A roving interception order permits the interception of communications of a given individual without specifying the nature and location of the communications facilities being used or the place being used for the communications that will be intercepted. To obtain such an order, a law enforcement officer or prosecutor must demonstrate to the court, in the context of his or her application for authorization to engage in electronic surveillance, either: 1) that it is not practical to identify the facilities being used or the place being used for the communications that will be intercepted; or 2) that there is probable cause to believe that the person committing or about to commit the relevant offense could thwart interception from a specified facility or place. An order that is based on the second option is valid only while the person in is or was reasonably close to the instrument through which the communications will be or was transmitted.

Fourth, the bill authorizes a person to provide information, facilities, or technical assistance to another person who is legally engaged in electronic surveillance if one of the following applies: 1) the judge authorizing the interception has ordered the person to provide the specified assistance and the person has been provided with a copy of the court's order; or 2) the attorney general, the district attorney, or a person authorized to intercept communications under an emergency wiretap order provides the person a written certification that states that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required. The order or certification must specify the information, facilities, or technical assistance required and must set forth the period of time during which the provision of the specified assistance is authorized. The bill also generally prohibits the person from disclosing information regarding the electronic surveillance.

Statewide grand jury and John Doe proceedings

Under current law, a grand jury proceeding is a formal criminal investigative proceeding in which jurors may hear evidence of possible crimes, call and examine witnesses, and, if appropriate, issue subpoenas. By returning indictments, the grand jury may charge persons with specific crimes. A John Doe proceeding is a procedure available to determine if a crime has probably been committed and, if so, who probably committed that crime. A judge conducts the John Doe proceeding, at which he or she examines the complainant and other witnesses. The judge also determines the scope of the proceeding, and he or she may conduct the proceeding secretly. If the judge determines that there is probable cause to believe that a crime was committed and that a specific person committed that crime, a criminal complaint may be prepared. If there is a criminal complaint, an arrest warrant must be issued. Grand jury and John Doe proceedings both relate to offenses committed within a single county.

The bill provides a procedure for conducting a grand jury proceeding with statewide jurisdiction. Under the bill, the attorney general may petition a chief judge to convene a grand jury having statewide jurisdiction if: 1) there is reason to believe that there is criminal activity that is statewide in nature, importance or influence or that relates to dangerous drugs, gambling or other specified offenses; and 2) there is reason to investigate the suspected criminal activity in a county within the chief judge's judicial administrative district. The chief judge may preside over any such grand jury or assign it to another judge in the district. Similarly, the bill allows the attorney general to petition for a John Doe proceeding that has statewide investigative jurisdiction. The attorney general may petition the chief judge of a judicial administrative district in which there is reason to believe that there is criminal activity that is statewide in nature, importance or influence or that relates to dangerous drugs, gambling or other specified offenses. If the chief judge orders this type of John Doe proceeding, he or she may conduct it or assign another judge to do so. The attorney general represents the state at any such proceeding.

Orders for disclosure of depositor or subscriber information

Under current law, the attorney general or a district attorney may obtain a court order requiring the disclosure of documents that constitute evidence of a crime if the attorney general or district attorney shows that there is probable cause that a crime has been committed. This bill allows the attorney general or a district attorney to obtain a court order for the disclosure of certain information upon a showing that the information is relevant to a criminal investigation. The information covered by this provision includes information as to whether a specific person has, or at a specific time in the past had, a depository account with a financial institution. The provision also covers the following information held by an electronic communications service provider pertaining to a subscriber: the person's name and address, telephone connection records, start date and length of service, types of services provided, telephone numbers, network address or other subscriber identity information, and means of payment for services.

Law enforcement access to driver's license and identification card photographs

Under current law, the department of transportation (DOT) generally may not release photographs taken for a driver's license or an identification card, except to the person photographed. Thus, DOT may not release a photograph to a law enforcement agency solely for use as part of a photograph lineup or photograph array. However, DOT may release a photograph to a law enforcement agency for the purpose of investigating unlawful activity, investigating a missing person case, or identifying an accident victim or a deceased person. The bill eliminates the restriction on releasing photographs solely for use as part of a photograph lineup or a photograph array.