Senate Bill 2962

AN ACT TO AMEND SECTIONS 41-29-505, 41-29-507, 41-29-509, 41-29-513, 41-29-527 AND 41-29-536, MISSISSIPPI CODE OF 1972, TO EXPAND THE WIRETAPPING AUTHORITY OF THE BUREAU OF NARCOTICS AND TO INCLUDE IN THAT AUTHORITY THE MISSISSIPPI BUREAU OF INVESTIGATION; TO REPEAL SECTION 41-29-537, MISSISSIPPI CODE OF 1972, WHICH IS A SUNSET PROVISION FOR THE AUTHORITY OF THE BUREAU OF NARCOTICS TO PERFORM ANY WIRETAPPING OPERATIONS; AND FOR RELATED PURPOSES.

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

SECTION 1. 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) a felony under the Uniform Controlled Substances Law; (b) a capital offense as that term is defined in Section 1-3-4; or (c) a felony violation of the Racketeer Influenced and Corrupt Organization (RICO) Act.

SECTION 2. 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 and the 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 the 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 the Bureau of Investigation is present at all times.

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

SECTION 3. 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 commissioner shall receive a written affidavit from one or more agents of the Bureau of Narcotics or the Bureau of Investigation setting forth the information required by Section 41-29-513(1). The commissioner shall submit all information required by Section 41-29-513(1) to the prosecutor. Upon receipt of the request from the 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 4. 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 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 5. Section 41-29-527, Mississippi Code of 1972, is amended as follows:

41-29-527. (1) Within thirty (30) days after the date an order or the last extension, if any, expires or after the denial of an order, the issuing or denying judge shall report to the Administrative Office of the United States Courts:

(a) The fact that an order or extension was applied for;

(b) The kind of order or extension applied for;

(d) The period of interceptions authorized by the order and the number and duration of any extensions of the order;

(e) The offense specified in the order or application or extension;

(f) The identity of the officer making the request and the prosecutor making the application; and

(g) The nature of the facilities from which or the place where communications were to be intercepted.

(2) In January of each year each prosecutor shall report to the Administrative Office of the United States Courts the following information for the preceding calendar year:

(a) The information required by subsection (1) of this section with respect to each application for an order or extension made;

(b) A general description of the interceptions made under each order or extension, including the approximate nature and frequency of incriminating communications intercepted, the approximate nature and frequency of order communications intercepted, the approximate number of persons whose communications were intercepted, and the approximate nature, amount and cost of the manpower and other resources used in the interceptions;

(c) The number of arrests resulting from interceptions made under each order or extension and the offenses for which arrests were made;

(d) The number of trials resulting from interceptions;

(e) The number of motions to suppress made with respect to interceptions and the number granted or denied;

(f) The number of convictions resulting from interceptions, the offenses for which the convictions were obtained, and a general assessment of the importance of the interceptions; and

(g) The information required by paragraphs (b) through (f) of this subsection with respect to orders or extensions obtained.

(3) Any judge or prosecutor required to file a report with the Administrative Office of the United States Courts shall forward a copy of such report to the director. On or before January 5 of each year the commissioner shall submit to the Mississippi Administrative Office of Courts a report of all intercepts, as defined in this subsection and as required by federal law which relates to statistical data only, conducted pursuant to this article and terminated during the preceding calendar year. Such report shall include:

(a) The report of judges and prosecuting attorneys forwarded to the director as required by this section;

(b) The number of Bureau of Narcotics and Bureau of Investigation personnel authorized to possess, install or operate electronic, mechanical or other devices;

(c) The number of Bureau of Narcotics and Bureau of Investigation and other law enforcement personnel who participated or engaged in the seizure of intercepts pursuant to this article during the preceding calendar year; and

(d) The total cost to the Bureau of Narcotics and the Bureau of Investigation of all activities and procedures relating to the seizure of intercepts during the preceding calendar year, including costs of equipment, manpower and expenses incurred as compensation for use of facilities or technical assistance provided by the bureau.

SECTION 6. Section 41-29-536, Mississippi Code of 1972, is amended as follows:

41-29-536. (1) Attorneys for the Bureau of Narcotics and the 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 a felony violation as authorized under 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 the 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 ongoing felony violation as authorized 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 the 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 the 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. Section 41-29-537, Mississippi Code of 1972, which is a sunset provision for the authority of the Bureau of Narcotics to perform any wiretapping operations, is repealed.

SECTION 8. This act shall take effect and be in force from and after July 1, 2006.