H 3861 Session 111 (1995-1996)
H 3861 General Bill, By Fleming, H. Brown, B.D. Cain, Davenport, Easterday,
Fair, J.G. Felder, R.C. Fulmer, Harrell, Harrison, Haskins, R.J. Herdklotz,
T.E. Huff, Klauber, Limehouse, Littlejohn, Mason, McCraw, Phillips, Quinn,
Meacham, Robinson, Sandifer, Seithel, Simrill, D. Smith, Tripp, Walker and
Young-Brickell
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 30
to Title 17 so as to establish procedures to conduct wiretapping and
electronic surveillance.
03/23/95 House Introduced and read first time HJ-5
03/23/95 House Referred to Committee on Judiciary HJ-5
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA,
1976, BY ADDING CHAPTER 30 TO TITLE 17 SO AS TO
ESTABLISH PROCEDURES TO CONDUCT WIRETAPPING
AND ELECTRONIC SURVEILLANCE.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Title 17 of the 1976 Code is amended by adding:
"CHAPTER 30
Wiretapping and Electronic Surveillance
Section 17-30-10. Except as otherwise provided in this chapter,
a person is guilty of a felony and, upon conviction, must be
imprisoned not more than five years if he wilfully:
(1) intercepts, endeavors to intercept, or procures another
person to intercept or endeavor to intercept any wire or oral
communication;
(2) discloses or endeavors to disclose to another person 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; or
(3) 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.
Section 17-30-15. It is not unlawful under this chapter for:
(1) an operator of a switchboard, or an officer, agent, or
employee of a communication 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 an activity which is a necessary
incident to the rendition of his service or to the protection of the
rights or property of the carrier of the communication. However,
no communication common carrier shall utilize its service for
observing or random monitoring except for mechanical or service
quality control checks;
(2) a law enforcement officer or a person acting at the
direction or request of a law enforcement officer to intercept a wire
or oral communication involving suspected criminal activities
where:
(i) the officer or person is a party to the communication;
or
(ii) one of the parties to the communication has given prior
consent to the interception. However, no interception under this
subitem may be made unless the Attorney General or his designee,
or the solicitor or his designee of the county in which the
interception is to be made, has reviewed the facts and is satisfied
that the consent is voluntary and has given prior approval for the
interception. The Attorney General, or his designee, or the
solicitor, or his designee, is the custodian of recorded evidence
obtained.
(3) police and emergency communication systems to record
telephone communications coming into and going out of the
communications system of a police department, fire department, or
county emergency center, if all of the following apply:
(i) The telephones are limited to the exclusive use of the
communication system for administrative purposes and the
communication system employs a periodic warning which indicates
to the parties to the conversation that the call is being recorded.
(ii) A recording made pursuant to this item, notes made
from the recording, and transcriptions of the recording may be
destroyed at any time, unless required for a pending judicial
proceeding.
(iii) At least one nonrecorded telephone line is made
available for public use at a police department, fire department, or
county emergency center.
(4) a person to intercept a wire or oral communication where
the parties to the communication have given prior consent to the
interception;
(5) any law enforcement officer or communication common
carrier acting at the direction of a law enforcement officer or in the
normal course of its business, to use a pen register or a trap and
trace device;
(6) personnel of a public utility to record telephone
conversations with utility customers or the general public relating to
receiving and dispatching or emergency and service calls provided
there is, during the recording, a periodic warning which indicates to
the parties to the conversation that the call is being recorded.
Section 17-30-20. Except as provided in Section 17-30-25, a
person is guilty of a felony and, upon conviction, must be
imprisoned not more than five years if he wilfully:
(1) possesses an intercepting 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 a wire or oral
communication;
(2) sells, transfers, or distributes an intercepting 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 a wire or oral communication;
(3) manufacturers or assembles an intercepting 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
a wire or oral communication; or
(4) places in any newspaper, magazine, handbill, or another
publication an advertisement of an intercepting 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
a wire or oral communication or of any intercepting device where
the advertisement promotes the use of a device for the purpose of
the surreptitious interception of a wire or oral communication.
Section 17-30-25. (A) It is not unlawful under this chapter for
a communication common carrier or an officer, agent, or employee,
or a person under contract with a communication common carrier,
in the usual course of the communication common carrier's
business, or a person under contract with the United States, a state
or a political subdivision, or an officer, agent, or employee of a
state or a political subdivision to possess, sell, distribute,
manufacture, assembly, or advertise an intercepting device, while
acting in furtherance of the appropriate activities of the United
States, a state or a political subdivision or a communication
common carrier.
(B) The Attorney General and the solicitor, or their designees,
shall buy, possess, and loan an intercepting device which is to be
used by a law enforcement officer for purposes of interception
authorized under this chapter.
Section 17-30-30. (A) A law enforcement officer may use an
intercepting device under this chapter when there is probable cause
to believe that a person is committing or has committed an act
which endangers the national security of the United States or the
security of this State or that the person is committing or has
committed the crime of treason, insurrection, rebellion, espionage,
sabotage, or a felony involving bodily harm, or a crime involving
arson, kidnapping, narcotics, dangerous drugs, importation or sale
of marijuana or a controlled substance, burglary, prostitution, theft,
blackmail, extortion, bribery, gambling, racketeering activity, or a
felony involving alcoholic beverage laws or auto thefts, or there is
probable cause to believe that a private place is being utilized or
has been utilized for the commission of a crime contained in this
subsection.
(B) Upon written application to a Circuit Court Judge by the
solicitor of the circuit where an intercepting device is to be
physically placed, or the Attorney General, which affirms that there
is probable cause to believe that a person is committing or has
committed a crime contained in this section, or a private place is
being utilized or has been utilized for the commission of a crime
contained in this section and sets forth the basis of probable cause
and describes the person or place, the crime or crimes, the device to
be used, and the specific conversations and activities to be
overheard or observed, a Circuit Court Judge may issue a warrant
permitting the use of an intercepting device for the surveillance of
the person or place. The warrant must specify the device or devices
to be used, the purpose, duration, and circumstances of use, the
crime or crimes allegedly being committed, and the person or
persons and place or places to be subject to surveillance.
(C) The Circuit Court Judge, before issuing a warrant to allow
the device to be used, shall find that the party initiating the
application for the warrant is aware of the facts and circumstances
through his personal knowledge which are sufficient to lead a
person of reasonable caution to believe that the alleged crime
contained in the application has been committed or that the person
has been informed of the facts and circumstances by a reasonably
trustworthy informational source. The judge also shall find that the
application contains exigencies supported by facts and
circumstances which override the need for giving of notice of the
surveillance to the parties to be overhead or observed by the use of
the devices.
(D) Warrants issued under this section are valid for not more
than thirty days after issuance, unless renewed for an additional
twenty-day-period for good cause shown at the time of written
application for renewal.
(E) The law enforcement officer executing the warrant shall
make a return of the warrant to the judge which must contain how
the warrant was used and employed and what was obtained. The
return must reflect that the investigation or search was terminated
immediately upon the conversation or activities which were
authorized to be overheard, intercepted, or observed were obtained.
The return must identify the law enforcement officer or his agent
who employed the device used in the execution of the warrant.
(F) The application for an investigation warrant obtained
pursuant to this section, supporting evidence in connection with the
warrant, and entry of the issuance of an investigation warrant must
remain confidential and in the custody of the judge and must not be
released, except upon written order of the judge or at the time of
trial of the case in which the evidence is used or in which evidence
derived from the surveillance is used.
(G) The applicant for the warrant shall return it and report to the
judge issuing it within thirty days of the issuance of the warrant. If
no evidence of one of the crimes contained in this section has been
obtained through the use of a device, it is the duty of the applicant
to destroy all evidence obtained by surveillance and to certify that
fact in writing to the judge under oath.
(H) If evidence of or information concerning the crime
contained in the warrant is obtained through the use of a device, the
applicant shall certify that fact in writing under oath in his report
under subsection (G) of this section. Upon the return of an
indictment, the solicitor shall notify the accused of the existence
and substance of the evidence or information obtained through the
use of a device or devices and if it has been reduced to a permanent
form, it must be made available to the accused for inspection and
copying.
(I) Publication of the evidence or information obtained under a
warrant issued under this section that is not necessary and essential
for the prosecution of the crime specified in the warrant is an
unlawful invasion of privacy and causes the evidence and
information to be inadmissible in a criminal prosecution.
(J) Evidence obtained pursuant to this section is admissible only
in the courts of this State having felony and misdemeanor
jurisdiction. When a law enforcement officer, while engaged in
intercepting wire or oral communication, intercepts wire or oral
communication other than those specified in the warrant, the
evidence derived may be disclosed or used in the same manner as if
a surveillance warrant covering the crimes had been used initially.
(K) An officer, employee, or agent of a communication common
carrier may provide facilities or technical assistance to a law
enforcement officer who, pursuant to this section, is authorized by
warrant to intercept a wire or oral communication.
(L) An order authorizing the interception of a wire or oral
communication, upon request of the applicant, must direct that the
communication common carrier, landlord, custodian, or other
person shall furnish the applicant with technical 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 person is
according the person whose communications are to be intercepted.
The communication common carrier, landlord, custodian, or another
person furnishing facilities or technical assistance must be
compensated by the applicant.
(M) A good faith reliance on a court order or legislative
authorization constitutes a complete defense to a civil or criminal
action brought under this title or under another law.
Section 17-30-35. An aggrieved person in a trial, hearing, or
other adversary proceeding or an authority of this State may move
to suppress the contents of an intercepted wire or oral
communication, or evidence derived, on the following grounds:
(1) The communication was unlawfully intercepted.
(2) The warrant is insufficient on its face.
(3) The interception, unless made in accordance with Section
17-30-15, was not made pursuant to the warrant or in accordance
with the requirements of Section 17-30-30.
Section 17-30-40. The Attorney General and the Chief of the
State Law Enforcement Division shall establish a course of training
in the legal and technical aspects of wiretapping and electronic
surveillance, and shall establish regulations necessary and proper for
the training program and minimum standards for certification and
periodic recertification of a law enforcement officer eligible to
conduct wiretapping or electronic surveillance under this chapter.
SLED shall charge a law enforcement officer who enrolls in this
training program an enrollment fee to offset the costs of the
training."
SECTION 2. This act takes effect upon approval by the
Governor.
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