GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

S	1 

SENATE BILL 279

Short Title:  Electronic Surveillance.	(Public)
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Sponsors: Senator Hartsell.
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Referred to:  Judiciary II.
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March 26, 1991

A BILL TO BE ENTITLED
AN ACT TO PERMIT THE USE OF ELECTRONIC SURVEILLANCE IN THE INVESTIGATION OF DRUG TRAFFICKING OFFENSES.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 15A of the General Statutes is amended by adding a new Article to read:
“ARTICLE 16A.
"Electronic Surveillance.
"§ 15A-300.1.  Definitions.
As used in this Article:
(1)	‘Aggrieved person' means a person who was a party to any intercepted wire or oral communication, a person against whom the interception was directed, or a person whose facilities have been subject to interception.
(2)	‘Attorney General' means the Attorney General of the State of North Carolina, unless otherwise specified.
(3)	‘Chapter 119 of the United States Code' means Chapter 119 of Part I of Title 18, United States Code, being Public Law 90-351, the Omnibus Crime Control and Safe Streets Act of 1968.
(4)	‘Communications common carrier' means and shall have the meaning which is given the term ‘common carrier' by Section 153(h) of Title 47 of the United States Code.
(5)	‘Contents' when used with respect to any wire or oral communication, means and includes any information concerning the identity of parties to such communications or the existence, substance, purport, or meaning of the communication.
(6)	‘Electronic, mechanical, or other device' means any device or apparatus which can be used to intercept a wire or oral communication other than:
a.	Any telephone or telegraph instrument, equipment or facility, or any component thereof:
1.	Furnished to a subscriber or user in the ordinary course of its business; or
2.	Being used by a communications carrier in the ordinary course of its business; or
3.	Used by an investigative or law enforcement officer in the ordinary course of his duties; or
b.	A hearing aid or similar device being used to correct subnormal hearing to not better than normal.
(7)	‘Electronic surveillance' means the interception of wire or oral communications as defined herein.
(8)	‘Intercept' means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.
(9)	‘Investigative or law enforcement officer' means any officer of the State of North Carolina or any political subdivision thereof, who is empowered by the laws of this State to conduct investigations of or to make arrest for offenses enumerated in this Article, and any attorney authorized by the laws of this State to prosecute or participate in the prosecution of such offenses, including the Attorney General of North Carolina.
(10)	‘Judge' means any judge of the trial divisions of the General Court of Justice.
(11)	‘Judicial review panel' means a three-judge body, composed of such judges as may be assigned by the Chief Justice of the Supreme Court of North Carolina, which shall review applications for electronic surveillance orders and may issue orders valid throughout the State authorizing the surveillance as provided herein, and which shall submit a report of its decision to the Chief Justice.
(12)	‘Oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.
(13)	‘Person' means any official, employee, or agent of the United States or any political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation.
(14)	‘Wire communication' means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid or wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of intrastate, interstate, or foreign communications.
"§ 15A-300.2. Interception and disclosure or wire or oral communications prohibited.
(a)	Except as otherwise specifically provided in this Article, a person is guilty of a Class I felony if, without the consent of at least one party to the communication, he:
(1)	Willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any wire or oral communication; or
(2)	Willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through violation of this Article; or
(3)	Willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this section.
(b)	It is not unlawful under this Article for an operator of a switchboard, or an officer, employee, or agent or any communications common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity that is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of such communication:  Provided, that said communications common carrier may not utilize service observing or random monitoring except for mechanical or service quality control checks.
(c)	It is not unlawful under this Article for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of Chapter 5 of Title 47 of the United States Code, to intercept a wire communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.
(d)	Any person who, as a result of his official position or his employment has obtained knowledge of the contents of any wire or oral communication lawfully intercepted pursuant to an electronic surveillance order or of the pendency or existence of, or implementation of an electronic surveillance order who shall knowingly and willfully disclose such information for the purpose of hindering or thwarting any investigation or prosecution relating to the subject matter of the electronic surveillance order, except as is necessary for the proper and lawful performances of the duties of his position or employment, or as shall be required or allowed by law shall be guilty of a Class B felony.
(e)	Any person who shall, knowingly or with gross negligence, divulge the existence of or contents of any electronic surveillance order in a way likely to hinder or thwart any investigation or prosecution relating to the subject matter of the electronics surveillance order or anyone who shall, knowingly or with gross negligence, release the contents or any wire or oral communication intercepted under an electronic surveillance order, except as is necessary for the proper and lawful performance of the duties of his position or employment or as is required or allowed by law shall be guilty of a misdemeanor.
(f)	Any public officer who shall violate subsection (a) or (d) of this section or who shall knowingly violate subsection (e) shall be removed from any public office he may hold and shall thereafter be ineligible to hold any public office, whether elective or appointed.
"§ 15A-300.3  Manufacture, distribution, possession, and advertising or wire or oral communication intercepting devices prohibited.
(a)	Except as otherwise specifically provided in this Article, a person is guilty of a Class I felony if he:
(1)	Manufactures, assembles, possesses, purchases, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire or oral communications; or
(2)	Places in any newspaper, magazine, handbill, or other publication any advertisement of:
a.	Any other electronic, mechanical, or other device knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire or oral communications; or
b.	Any other electronics, mechanical, or other device where the advertisement promotes the use of the device for the purpose of surreptitious interception of wire or oral communications.
(b)	It is not unlawful under this section for the following persons to manufacture, assemble, possess, purchase, or sell any electronic, mechanical, or other device, knowing or having reason to know that the design of the device renders it primarily useful for the purpose of the surreptitious interception of wire or oral communications:
(1)	A communications common carrier or an officer, agent or employee of, or a person under contract with a communications common carrier, acting in the normal course of the communications common carriers business; or
(2)	An officer, agent, or employee of, or a person under contract with, the State, acting in the course of the activities of the State, and with the written authorization of the Attorney General.
"§ 15A-300.4.  Confiscation of wire or oral communication interception devices.
Any electronic, mechanical, or other device used, sent, carried, manufactured, assembled, possessed, sold, or advertised in violation of G.S. 15A-300.3. may be seized and forfeited to this State.
"§ 15A-300.5.  Offenses for which orders for electronic surveillance may be granted.
(a)	Order authorizing or approving the interception of wire or oral communications may be granted, subject to provisions of this Article and Chapter 119 of the United Stated Code, when such interception:
(1)	May provide or has provided evidence of the commission of, or any conspiracy to commit, any violation of G.S. 90-95(h) or G.S. 90-95.1; or
(2)	May expedite the apprehension of persons indicted for the commission of, or any conspiracy to commit, any violation of G.S. 90-95(h) or G.S. 90-95.1.
(b)	When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in G.S. 15A-300.9(a) and (b).  Such contents and any evidence derived therefrom may be used in accordance with G.S. 15A-300.9(c) when authorized or approved by a judicial review panel where the panel finds, on subsequent application made as soon as practicable, that the contents were otherwise intercepted in accordance with this Article or Chapter l19 of the United States Code.
(c)	No otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this Article or Chapter 119 of the United States Code, shall lose its privileged character.
"§ 15A-300.6.  Application for electronic surveillance order.
(a)	The Attorney General may, pursuant to the provisions of Section 2516(2) of Chapter 119 of the United States Code, apply to a judicial review panel for an order authorizing or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offenses as to which the application is made, and for such offenses and causes as are enumerated in G.S. 15A-300.5.  A judicial review panel may be appointed by the Chief Justice pursuant to the Attorney General's written notification of his intent to apply for an electronic surveillance order.
(b)	A judicial review panel is hereby authorized to grant orders valid throughout the interception of wire or oral communications.  Applications for such order may be made by the Attorney General and by no other person.  The Attorney General, in applying for such orders, and a judicial review panel in granting such orders, shall comply with all procedural requirements of Section 2518 of Chapter 119 of the United States Code except the requirements in Section 2518(4).  In applying Section 2518 the word ‘judge' in that section shall be construed to refer to the judicial review panel, unless the context otherwise indicates.  The judicial review panel may stipulate any special conditions it feels necessary to assure compliance with the terms of this Article.
(c)	No judge who sits as a member of a judicial review panel shall preside at any trial or proceeding resulting from or in any manner related to information gained pursuant to a lawful electronic surveillance order issued by that panel.
(d)	Each application for an order authorizing or approving the interception of a wire or oral communication must be made in writing upon oath or affirmation to the judicial review panel.  Each application must include the following information:
(1)	The identity of the officer requesting the application;
(2)	A full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including:
a.	Details as to the particular offense that has been, or is being committed;
b.	A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
c.	A particular description of the type of communications sought to be intercepted; and
d.	The identity of the person, if known, committing the offense and whose communications are to be intercepted.
(3)	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;
(4)	A statement of the period of time for which the interception is required to be maintained.  If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter must be added;
(5)	A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making application, made to a judicial review panel for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judicial review panel on each such application; and
(6)	Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
(e)	Before acting on the application, the judicial review panel may examine on oath the person requesting the application or any other person who may possess pertinent information, but information other than that contained in the affidavit may not be considered by the panel in determining whether probable cause exists for the issuance of the order unless the information is either recorded or contemporaneously summarized in the record on the face of the order by the panel.
"§ 15A-300.7.  Request for application for electronic surveillance order.
(a)	The head of any municipal, county, or State law enforcement agency or any district attorney may submit a written request to the Attorney General that the Attorney General apply to a judicial review panel for an electronic surveillance order to be executed within the requesting agency's jurisdiction.  Such written requests shall be on a form approved by the Attorney General and shall provide sufficient information to form the basis for an application for an electronic surveillance order.  The head of a law enforcement agency shall also submit a copy of the request to the district attorney, who shall review the request and forward it to the Attorney General along with any comments he may wish to include.  The Attorney General is authorized to review the request and decide whether it is appropriate to submit an application to a judicial review panel for an electronic surveillance order.  If a request for an application is deemed inappropriate, the Attorney General shall send a signed, written statement to the person submitting the request, and to the district attorney, summarizing the reasons for failing to make an application.  If the Attorney General decides to submit an application to a judicial review panel, he shall so notify the requesting agency which has the primary responsibility for enforcing the criminal laws in the location in which it is anticipated that the majority of the surveillance will take place, if not the same as the requesting agency head, unless the Attorney General has probable cause to believe that the latter notifications should substantially jeopardize the success of the surveillance or the investigation in general.  If a judicial review panel grants an electronic surveillance order, a copy of such order shall be sent to the requesting agency head and the district attorney, and a summary of the order shall be sent to the head of the local law enforcement agency with primary responsibility for the area where the surveillance will take place, if not the same as the requesting agency head, unless the judicial review panel finds probable cause to believe that the latter notifications would substantially jeopardize the success of the surveillance or the investigation.
(b)	This Article does not limit the authority of the Attorney General to apply for electronic surveillance orders independent of, or contrary to, the requests of law enforcement agency heads, nor does it limit the discretion of the Attorney General in determining whether an application is appropriate under any given circumstances.
(c)	The Chief Justice of the North Carolina Supreme Court shall receive a report concerning each decision of a judicial review panel.
"§ 15A-300.8.  Issuance of order for electronic surveillance; procedures for implementation.
(a)	Upon application by the Attorney General, a judicial review panel may enter an ex parte order, as requested or as modified, authorizing the interception or wire or oral communications, if the panel determines on the basis of the facts submitted by the applicant that:
(1)	There is probable cause for belief that an individual is committing, has committed, or about to commit an offense set out in G.S. 15A-300.5;
(2)	There is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
(3)	Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; and
(4)	There is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by the individual described in subdivision (1).
(b)	Each order authorizing the interception of any wire or oral communications must specify:
(1)	The identity of the person, if known, whose communications are to be intercepted;
(2)	The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted, and the means by which such interceptions may be made;
(3)	A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
(4)	The identity of the agency authorized to intercept the communications, and of the person requesting the application; and
(5)	The period of time during which such interception is authorized, including a statement as to whether or not the interception automatically terminates when the described communication has been first obtained.
(c)	No order entered under this Article may authorize the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days.  Extensions of an order may be granted, but only upon application for an extension made in accordance with G.S. 15A-300.6 and the panel making the finds required by subsection (a) of this section.  The period of extension may be longer than the panel determines to be necessary to achieve the purpose for which it was granted and in no event for longer than 15 days.  Every order and extension thereof must contain a provision that the authorization to intercept the communication be executed as soon as practicable, be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this Article, and terminate upon attainment of the authorized objective, or in any event in 30 or 15 days, as is appropriate.
(d)	Whenever an order authorizing interception is entered pursuant to this Article the order may require reports to be made to the issuing judicial review panel showing that progress has been made toward achievement of the authorized objective and the need for continued interception.  Such reports must be made at such intervals as the panel may require.
(e)	(1)	The contents of any wire or oral communication intercepted by any means authorized by this Article must be recorded on tape or wire or oral communication under this subsection and must be done in such way as will protect the recording from the order, or extension thereof.  Such recordings must be made available to the judicial review panel and sealed under its direction.  Custody of the recordings is wherever the panel orders.  They may not be destroyed except upon an order of the issuing panel and in any event must be kept for 10 years.  Duplicate recordings may be made for use or disclosure pursuant to the provisions of G.S. 15A-300.9(c) unless they have been kept sealed.
(2)	Applications made and orders granted under this Article must be sealed by the panel.  Custody of the applications and orders may be disclosed only upon a showing of good cause before the issuing panel and may not be destroyed except on its orders and in any event must be kept for 10 years.
(3)	Any violation of the provisions of this subsection may be punished as for contempt.
(f)	The State Bureau of Investigation shall own or control, and shall operate any equipment used to implement electronic surveillance orders issued by a judicial review panel.  No electronic surveillance equipment in which a local government or any of its agencies has any property interest may be used in implementing any electronic surveillance order.
(g)	The Attorney General shall establish procedures for the use of electronic surveillance equipment in assisting local law enforcement agencies implementing electronic surveillance orders.  The Attorney General shall supervise such assistance given to local law enforcement agencies and is authorized to conduct statewide training sessions for investigative and law enforcement officers regarding this Article.
"§ 15A-300.9.  Authorization for disclosure and use of intercepted wire or oral communications.
(a)	Any investigative or law enforcement officer who, by any means authorized by this Article or Chapter 119 of the United States Code, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
(b)	Any investigative or law enforcement officer, who by any means authorized by this Article or Chapter 119 of the United States Code has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.
(c)	Any person who has received by any means authorized by this Article or Chapter 119 of the United States Code any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this Article may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding in any court or before any grand jury in this State, or in any court of the United States or any state, or in any federal or State grand jury proceeding.
(d)	Within a reasonable time but no later than 90 days after the filing of an application for an order or the termination of the period of an order or the extensions thereof, the issuing judicial review panel must cause to be served on the persons named in the order or the  application, and such other parties as the panel in its discretion may determine, an inventory that includes notice of:
(1)	The fact of the entry of the order or the application;
(2)	The date of the entry and the period of the authorized interception; and
(3)	The fact that, during the period, wire or oral communications were or were not intercepted.
(e)	The issuing judicial review panel upon the filing of a motion, may in its discretion, make available to such person or his counsel, for inspection, such portions of the intercepted communications, applications, and order as the panel determines to be required by law or in the interest of justice.
(f)	The contents of any intercepted wire or oral communication or evidence derived therefrom may not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in any court of this State unless each party, not less than 20 working days before the trial, hearing or other proceeding, has been furnished with a copy of the order, and accompanying application, under which the interception was authorized.
"§ 15A-300.11.  Recovery of civil damages authorized.
Any person whose wire or oral communication is intercepted, disclosed or used in violation of this Article has a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and is entitled to recover from any other person:
(1)	Actual damages but not less than liquidated damages computed at the rate of one hundred dollars ($100.00) a day for each day of violation or one thousand dollars ($1,000), whichever is higher;
(2)	Punitive damages; and
(3)	A reasonable attorney's fee and other litigation costs reasonably incurred.
Good faith reliance on a court order or on a representation made by the Attorney General or a district attorney is a complete defense to any civil or criminal action brought under this Article.
"§ 15A-300.12.  Conformity to provisions of federal law.
It is the intent of this Article to conform the requirements of all interceptions of wire or oral communications conducted by investigative or law enforcement officers in this State to provisions of Chapter 119 of the United States Code, except where the context indicates a purpose to provide safeguards even more protective of individuals' privacy and constitutional rights."
Sec. 2.  This act becomes effective October 1, 1991.