MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Judiciary B
By: Representative Harness
AN ACT TO AUTHORIZE SHERIFFS TO USE ELECTRONIC AND MECHANICAL DEVICES FOR THE INTERCEPTION OF WIRE, ORAL AND OTHER COMMUNICATIONS; TO DEFINE CERTAIN TERMS; TO AUTHORIZE THE DISTRICT ATTORNEY, UPON REQUEST OF A SHERIFF, TO APPLY TO THE CIRCUIT COURT IN THE SHERIFF'S COUNTY FOR AN ORDER AUTHORIZING THE INTERCEPTION OF COMMUNICATIONS THAT MAY PROVIDE EVIDENCE OF THE COMMISSION OF A FELONY; TO PRESCRIBE THE FORM AND REQUIRED CONTENTS OF AN APPLICATION TO THE CIRCUIT COURT FOR AN ORDER AUTHORIZING INTERCEPTION OF COMMUNICATIONS; TO PRESCRIBE CERTAIN FINDINGS THAT MUST BE MADE BY A CIRCUIT COURT JUDGE BEFORE ENTERING AN ORDER AUTHORIZING THE INTERCEPTION; TO REQUIRE THE CONTENTS OF INTERCEPTED COMMUNICATIONS TO BE RECORDED AND TO BE MADE AVAILABLE TO THE JUDGE AND PLACED UNDER SEAL; TO REQUIRE THE CIRCUIT COURT JUDGE TO PLACE APPLICATIONS AND ORDERS TO INTERCEPT COMMUNICATIONS UNDER SEAL; TO DECLARE THE CONTENTS OF INTERCEPTED COMMUNICATIONS THAT ARE DISCLOSED IN VIOLATION OF THIS ACT TO BE INADMISSIBLE IN COURT; TO SPECIFY THE PURPOSES FOR WHICH, AND TO WHOM, INTERCEPTED COMMUNICATIONS MAY BE DISCLOSED; TO AMEND SECTION 41-29-507, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. As used in this act, the following words and phrases have the meanings ascribed in this section unless the context clearly requires otherwise:
(a) "Communication common carrier" has the meaning given the term "common carrier" by 47 USCS 153(h) and also means a provider of communication services.
(b) "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.
(c) "Covert entry" means any entry into or onto premises which, if made without a court order allowing such an entry, would be a violation of criminal law.
(d) "Electronic, mechanical or other device" means a device or apparatus primarily designed or used for the nonconsensual interception of wire, oral or other communications.
(e) "Interception" 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.
(f) "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.
(g) "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.
(h) "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.
(i) "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. Upon request of the district attorney, a circuit court judge in the circuit court district of the county where the interception of wire, oral or other communications is sought may issue an order authorizing the interception of wire, oral or other communications as authorized under this act if the district attorney shows probable cause to believe that the interception will provide evidence of the commission of a felony under the laws of this state.
SECTION 3. (1) The sheriff of a county may request the district attorney in that county to submit an application to the circuit court judge for an order authorizing interception of wire, oral or other communications. Before submitting the request to the district attorney, the sheriff must receive from the sheriff's deputies the information required under this section. Upon receipt of the request, the district attorney may submit an application to the circuit court requesting the court to issue an order authorizing interception of wire, oral or other communications.
(2) To be valid, an application by a district attorney for an order authorizing the interception of wire, oral or other communications must be made in writing under oath to a circuit court judge in the circuit court district of the county where the interception of wire, oral or other communications is sought. The district attorney must include the following information in the application:
(a) A statement that the application has been requested by the sheriff;
(b) A full and complete statement of the facts and circumstances relied on by the district attorney to justify the 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 terminate automatically 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 on 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 district attorney which have been made previously 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.
(3) The judge may require, in an ex parte in camera hearing, additional testimony or documentary evidence in support of the application, and such testimony or documentary evidence must be preserved as part of the application.
SECTION 4. (1) Upon receipt of an application, the circuit court judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral or other communications if the judge determines from the evidence submitted by the district attorney that:
(a) There is probable cause to believe that a person is committing, has committed, or is about to commit a felony offense under the laws of this state;
(b) There is probable cause to believe that particular communications concerning that offense will be obtained through the interception;
(c) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed or to be too dangerous if tried;
(d) There is probable cause to believe that the facilities from which or the place where the wire, oral or other communications are to be intercepted are being used or are about to be used in connection with the commission of the offense or are leased to, listed in the name of, or commonly used by the person; and
(e) A covert entry is or is not necessary to properly and safely install the electronic, mechanical or other device.
(2) Each order authorizing the interception of a wire or oral communication must specify:
(a) The identity of the person, if known, whose communications are to be intercepted;
(b) The nature and location of the communications facilities as to which or the place where authority to intercept is granted;
(c) A particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates;
(d) A statement setting forth that the sheriff has requested the district attorney to apply for the order authorizing the interception;
(e) The time during which the interception is authorized, including a statement of whether or not the interception will terminate automatically when the described communication is first obtained; and
(f) Whether or not a covert entry is necessary to properly and safely install wiretapping, electronic surveillance or eavesdropping equipment.
(3) Upon request of the district attorney, the order authorizing the interception of a wire, oral or other communication may direct that a communication common carrier, landlord, custodian or other person furnish the district attorney all 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 other person is providing to the person whose communications are to be intercepted.
(4) An order entered pursuant to this section may not authorize the interception of a wire, oral or other communication for longer than is necessary to achieve the objective of the authorization, and in no event may the order authorize interception for more than thirty (30) days. The issuing judge may grant extensions of an order, but only upon application for an extension and the court making the findings required by subsection (1) of this section. The period of extension may not be longer than the authorizing judge deems necessary to achieve the purposes for which the extension is granted, and in no event may the extension be for more than thirty (30) days. To be valid, each order and extension of an order must require that the authorization to intercept: be executed as soon as practicable; be conducted in a way that minimizes the interception of communications not otherwise subject to interception under this act; and terminate on obtaining the authorized objective or within thirty (30) days, whichever occurs sooner.
(5) An order entered pursuant to this section may not authorize a covert entry into a residence solely for the purpose of intercepting a wire communication.
(6) An order entered pursuant to this section may not authorize a covert entry into or onto a premises for the purpose of intercepting an oral or other communication unless:
(a) The judge, in addition to making the determinations required under subsection (1) of this section, determines that:
(i) 1. The premises into or onto which the covert entry is authorized or the person whose communications are to be obtained has been the subject of a pen register previously authorized in connection with the same investigation;
2. The premises into or onto which the covert entry is authorized or the person whose communications are to be obtained has been the subject of an interception of wire communications previously authorized in connection with the same investigation;
3. Procedures described under this subparagraph (i) have failed; and
4. If the order is for the interception of other communications and requires covert entry, a court-ordered attempt to intercept the communications without using covert entry must have been made without success; and
(ii) The procedures enumerated in subparagraph (i) 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; and
(b) The order, in addition to the matters required to be specified under subsection (2) of this section, specifies that the covert entry is for the purpose of intercepting oral communications of two (2) or more persons and that there is probable cause to believe they are committing, have committed, or are about to commit a felony offense.
(7) An order entered pursuant to this section may authorize the interception of wire, oral or other communications to be conducted within a vehicle, vessel, other mode of transportation or any location where a reasonable expectation of privacy might exist if the requirements of this section are met.
(8) Whenever an order authorizing interception is entered pursuant to this section, the order may require reports to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Reports must be made at any interval the judge requires.
(9) A circuit court judge who issues an order authorizing the interception of a wire, oral or other communication may not hear a criminal prosecution in which evidence derived from the interception may be used or in which the order may be an issue.
SECTION 5. (1) The contents of a wire, oral or other communication intercepted by means authorized by this act must be recorded on tape, wire or other comparable device. The recording must be done in a way that protects the recording from editing or other alterations.
(2) Immediately on the expiration of the period of the order and all extensions, if any, the recordings must be made available to the judge issuing the order and sealed under his directions. Custody of the recordings must be wherever the judge orders. The recordings may not be destroyed until at least ten (10) years after the date of expiration of the order and the last extension, if any. A recording may be destroyed only by order of the circuit court judge who authorized the interception or his successor.
(3) Duplicate recordings may be made for use or disclosure for purposes of investigations. However, the presence of the seal required by subsection (2) of this section, or a satisfactory explanation of its absence, is a prerequisite for the use or disclosure of the contents of a wire, oral or other communication or evidence derived from the communication.
SECTION 6. The circuit court judge shall seal each application made and order granted under this act. Custody of the applications and orders must be wherever the judge directs. An application or order may be disclosed only upon a showing of good cause before the circuit court judge, and may not be destroyed until at least ten (10) years after the date it is sealed. An application or order may be destroyed only by order of the circuit court judge or a successor judge in the court district in which it was made or granted.
SECTION 7. The contents of an intercepted wire, oral or other communication and evidence derived from an intercepted wire, oral or other communication may not be received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, or other authority of the United States or of this state or a political subdivision of this state if the disclosure of that information would be in violation of this act. The contents of an intercepted wire, oral or other communication and evidence derived from an intercepted communication may be received in a civil trial, hearing or other proceeding only if the civil trial, hearing or other proceeding arises out of a violation of the criminal law of this state.
SECTION 8. (1) A sheriff's deputy who, by any means authorized by this act, obtains knowledge of the contents of a wire, oral or other communication or evidence derived from the communication may disclose the contents or evidence to another deputy only to the extent that the disclosure is appropriate to the proper performance of the official duties of the deputy making or receiving the disclosure.
(2) A sheriff's deputy who, by any means authorized by this act, obtains knowledge of the contents of a wire, oral or other communication or evidence derived from the communication may use the contents or evidence to the extent the use is appropriate to the proper performance of the deputy's official duties.
(3) A person who receives, by any means authorized by this act, information concerning a wire, oral or other communication or evidence derived from a wire, oral or other communication intercepted in accordance with this act may disclose the contents of the communication or the evidence derived from the wire, oral or other communication while giving testimony under oath in any proceeding held under the authority of the United States, of this state, or of a political subdivision of this state.
(4) An otherwise privileged wire, oral or other communication intercepted in accordance with, or in violation of, this act does not lose its privileged character, and any evidence derived from an otherwise privileged communication against the party to the privileged communication also is considered privileged.
(5) When a sheriff's deputy, while engaged in intercepting wire, oral or other communications in a manner authorized by this act, intercepts wire, oral or other communications relating to offenses other than those specified in the order of authorization, the contents of and evidence derived from the communication may be disclosed or used as provided under subsections (1) and (2) of this section. The contents and evidence may be used under subsection (3) of this section when authorized by a circuit court judge where the judge finds, upon subsequent application, that the contents otherwise were intercepted in accordance with this act. The application must be made as soon as practicable.
SECTION 9. 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 as permitted under Sections 1 through 8 of House Bill No._____, 2024 Regular Session, is authorized by this article to own, possess, install, operate or monitor an electronic, mechanical or other device. The Bureau of Narcotics 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 is present at all times.
(2) The director shall designate, in writing, the agents of the Bureau of Narcotics who are responsible for the possession, installation, operation and monitoring of electronic, mechanical or other devices for the bureau.
SECTION 10. This act shall take effect and be in force from and after July 1, 2024.