Senate Bill 3029

AN ACT TO AMEND SECTIONS 41-29-501, 41-29-505, 41-29-507, 41-29-509, 41-29-513 AND 41-29-536, MISSISSIPPI CODE OF 1972, TO EXTEND THE AUTHORITY TO APPLY FOR AND RECEIVE A COURT ORDER AUTHORIZING INSTALLATION OF A WIRE INTERCEPT TO THE MISSISSIPPI BUREAU OF INVESTIGATION IF SOUGHT IN CONNECTION WITH A CAPITAL OFFENSE; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 41-29-501, Mississippi Code of 1972, is amended as follows:

41-29-501. As used in this article, the following terms shall have the meaning ascribed to them herein unless the context requires otherwise:

(a) "Aggrieved person" means a person who was a party to an intercepted wire, oral or other communication or a person against whom the interception was directed.

(b) "Commissioner" means the Commissioner of Public Safety.

(c) "Communication common carrier" has the meaning given the term "common carrier" by 47 USCS 153(h) and shall also mean a provider of communication services.

(d) "Contents," when used with respect to a wire, oral or other communication, includes any information concerning the identity of the parties to the communication or the existence, substance, purport or meaning of that communication.

(e) "Covert entry" means any entry into or onto premises which if made without a court order allowing such an entry under this article would be a violation of criminal law.

(f) "Director" means the Director of the Bureau of Narcotics or, if the director is absent or unable to serve, the Assistant Director of the Bureau of Narcotics.

(g) "Electronic, mechanical or other device" means a device or apparatus primarily designed or used for the nonconsensual interception of wire, oral or other communications.

(h) "Intercept" means the aural or other acquisition of the contents of a wire, oral or other communication through the use of an electronic, mechanical or other device.

(i) "Investigative or law enforcement officer" means an officer of this state or of a political subdivision of this state who is empowered by law to conduct investigations of, or to make arrests for, offenses enumerated in Section 41-29-505, 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.

(j) "Judge of competent jurisdiction" means a justice of the Supreme Court or a circuit court judge.

(k) "Oral communication" means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.

(l) "Other communication" means any transfer of an electronic or other signal, including fax signals, computer generated signals, other similar signals, or any scrambled or encrypted signal transferred via wire, radio, electromagnetic, photoelectric or photooptical system from one party to another in which the involved parties may reasonably expect the communication to be private.

(m) "Prosecutor" means a district attorney with jurisdiction in the county in which the facility or place where the communication to be intercepted is located or a legal assistant to the district attorney if designated in writing by the district attorney on a case-by-case basis.

(n) "Residence" means a structure or the portion of a structure used as a person's home or fixed place of habitation to which the person indicates an intent to return after any temporary absence.

(o) "Wire communication" means a communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception furnished or operated by a person engaged as a common carrier in providing or operating the facilities for the transmission of communications and includes cordless telephones, voice pagers, cellular telephones, any mobile telephone, or any communication conducted through the facilities of a provider of communication services.

SECTION 2. Section 41-29-505, Mississippi Code of 1972, is amended as follows:

41-29-505. A judge of competent jurisdiction in the circuit court district of the location where the interception of wire, oral or other communications is sought, or a circuit court district contiguous to such circuit court district, may issue an order authorizing interception of wire, oral or other communications only if the prosecutor applying for the order shows probable cause to believe that the interception will provide evidence of the commission of a felony under the Uniform Controlled Substances Law or evidence of the commission of a capital offense as that term is defined in Section 1-3-4.

SECTION 3. Section 41-29-507, Mississippi Code of 1972, is amended as follows:

41-29-507. (1) No person, agency of the state or political subdivision of the state, other than the Bureau of Narcotics or Bureau of Investigation, is authorized by this article to own, possess, install, operate or monitor an electronic, mechanical or other device. The Bureau of Narcotics or Bureau of Investigation may be assisted by an investigative or law enforcement officer in the operation and monitoring of an interception of wire, oral or other communications, provided that an agent of the Bureau of Narcotics or Bureau of Investigation is present at all times.

(2) The director or commissioner shall designate, in writing, the agents of the Bureau of Narcotics or Bureau of Investigation who are responsible for the possession, installation, operation and monitoring of electronic, mechanical or other devices for the bureaus.

SECTION 4. 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 commissioner shall receive a written affidavit from one or more agents of the Bureau of Narcotics or Bureau of Investigation setting forth the information required by Section 41-29-513(1). The director or commissioner shall submit all information required by Section 41-29-513(1) to the prosecutor. Upon receipt of the request from the director or commissioner, 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 5. 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 the commissioner 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 6. Section 41-29-536, Mississippi Code of 1972, is amended as follows:

41-29-536. (1) Attorneys for the Bureau of Narcotics or Bureau of Investigation 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 an offense enumerated in Section 41-29-505.

(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 Bureau of Investigation 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 offense enumerated in Section 41-29-505.

(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 Bureau of Investigation 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 Bureau of Investigation.

(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 7. This act shall take effect and be in force from and after July 1, 2007.