CHAPTER 333

FORMERLY SENATE BILL

NO. 395 AS AMENDED BY

SENATE AMENDMENT NO. 1

AND HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 11, DELAWARE CODE, SUBCHAPTER XLII, SECTION 757, RELATING TO WIRETAPPING BY AUTHORIZING WIRETAPPING AND ELECTRONIC SURVEILLANCE IN CERTAIN SPECIFIED CASES.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Title 11, Delaware Code, Subchapter XLII, Section 757 is amended by deleting said section in its entirety and inserting in lieu thereof a new Section 757 to read as follows:

§ 757. Wiretapping and Electronic Surveillance

(a) As used in this section:

"Wire communication" means any communication made in whole or in part through the use of facilities for the transmission of communications by wire, cable or other like connection between the point of origin and the point of reception furnished or operated by a telephone, telegraph or radio company for hire as a communication common carrier;

"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;

"Intercept" means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device;

"Intercepting device" means any electronic, mechanical or other device or apparatus that can be used to intercept a wire or oral communication other than;

(1) Any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or being used by a communication common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties;

(2) A hearing aid or similar device being used to correct subnormal hearing to not better than normal;

"Person" means a human being who has been born and is alive, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality and includes any officer or employee of the State of a political subdivision thereof;

"Investigative or law enforcement officer" means any officer of the State of Delaware or of a political subdivision thereof who is empowered by law to conduct investigations of, or to make arrests for, any offense enumerated in this section and any attorney authorized by law to prosecute or participate in the prosecution of any such offense;

"Contents", when used with respect to any wire or oral communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication;

"Court of competent jurisdiction" means the Superior Court of this State;

"Judge", when referring to a judge authorized to receive applications for, and to enter, orders authorizing interceptions of wire or oral communications, means one or more of the several judges of the Superior Court to be designated from time to time by the President Judge of the Superior Court to receive applications for, and to enter, orders authorizing interceptions of wire or oral communications pursuant to this section;

communication by wire or radio or in intrastate, interstate or foreign radio transmission of energy; but a person engaged in radio broadcasting shall not, while so engaged, be deemed a common carrier;

"Aggrieved person" means a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.

(b) Except as otherwise specifically provided in this section or otherwise by law, any person who:

(1) Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor 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, or evidence derived therefrom, 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; or

(3) Willfully uses or endeavors to use the contents of any wire or oral communication, or evidence derived therefrom 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; shall be guilty of a felony and shall be imprisoned for not more than 7 years or fined in such amount as the Court may determine, or both.

In any prosecution for a gambling offense, evidence that a police officer, when making an arrest or executing a search warrant, for a gambling offense, or in connection with a gambling offense, received or overheard telephone messages intended for the accused or an associate of the accused which tend to prove that gambling activity was being conducted, is admissible. The gathering and disclosure of such evidence, including the contents of the telephone messages received or overheard, does not violate any law of this State.

(c) It shall not be unlawful under this section 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 any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier or such communication. No communication common carrier shall utilize service observing or random monitoring except for mechanical or service quality control checks;

(2) A person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortuous act in violation of the Constitution or laws of the United States or of this State or for the purpose of committing any other injurious act.

(d) Except as otherwise specifically provided in this section, any person who:

(1) Willfully possesses, sells, distributes, manufacturers or assembles an intercepting device, the design of which renders it primarily useful for the purpose of the surreptitious interception of a wire or oral communication; or

(2) Willfully places in any newspaper, magazine, handbill, or other publication any advertisement of any intercepting device, the design of which renders it primarily useful for the purpose of the surreptitious interception of a wire or oral communication or of any intercepting device where such advertisement promotes the use of such device for the purpose of the surreptitious interception of a wire or oral communication; shall be guilty of a felony, and shall be imprisoned for not more than 7 years, or fined in such amount as the Court shall determine, or both.

(e) It shall not be unlawful under this section for:

(1) A communication common carrier or an officer, agent or employee of, or a person under contract with a communication common carrier, in the usual course of the communication common carrier's business; or

(2) A person under contract with the United States, a state or a political subdivision thereof, or an officer, agent, or employee of a state or a political subdivision thereof; to possess, sell, distribute, manufacture or assemble, or advertise any intercepting device, while acting in furtherance of the appropriate activities of the United States, a state or political subdivision thereof or a communication common carrier.

(f) Any intercepting device possessed, used, sent, distributed, manufactured, or assembled in violation of this section is hereby declared to be a nuisance and may be seized and forfeited to the State.

(g) The Attorney General may make application to a judge designated to receive the same for an order authorizing or approving the interception of a wire or oral communication by the investigative or law enforcement officers or agency having responsibility for an investigation when such interception may provide evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, dealing in narcotic drugs, dangerous drugs, central nervous system depressant or stimulant drugs, or any felony or any conspiracy to commit any of the foregoing offenses or which may provide evidence aiding in the apprehension of the perpetrator of any of the foregoing offenses.

(h) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation and shall state:

(1) The authority of the applicant to make such application;

(2) The identity of the investigative or law enforcement officers or agency for whom the authority to intercept a wire or oral communication is sought and the identity of whoever authorized the application;

(3) A particular statement of the facts relied upon by the applicant, including:

(i) The identity of the particular person, if known, committing the offense and whose communications are to be intercepted;

(ii) The details as to the particular offense that has been, is being, or is about to be committed;

(iii) The particular type of communication to be intercepted;

(iv) The nature and location of the particular wire communication facilities involved or the particular place where the oral communication is to be intercepted;

() A statement of the period of time for which the interception is required to be maintained; if the character of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular statement of facts establishing probably cause to believe that additional communications of the same type will occur thereafter;

(i) A full and complete statement as to whether or not other normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ;

(4) Where the application is for the renewal or extension of an order, a particular statement of facts showing the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results;

(5) A statement of all previous applications, known to the individual authorizing and to the individual making the application, made to any court for authorization to intercept a wire or oral communication involving any of the same facilities or places specified in the application or involving any person whose communication is to be intercepted, and the action taken by the court on each such application; and

(6) Such additional testimony or documentary evidence in support of the application as the judge may require.

(i) Upon consideration of an application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving the interception of wire or oral communications, if the

court determines on the basis of the facts submitted by the applicant that there is or was probable cause for belief that:

(1) The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an offense as provided in subsection (g) of this section;

(2) Particular communications concerning such offense may be obtained through such interception;

(3) Normal investigation procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ; and

(4) The facilities from which, or the place where, the wire or oral communications are to be intercepted, are or have been 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, such person.

(1) If 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, or are leased to, listed in the name of, or commonly used by an attorney-at-law, or practicing clergyman, or is a place used primarily for habitation by a husband and wife, no order shall be issued unless the court, in addition to the matters provided in subsection (i) above, determines that there is a special need to intercept wire or oral communications over such facilities or in such places. No otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this section, shall lose its privileged character.

(k) Each order authorizing or approving the interception of any wire or oral communication shall state:

(1) The judge is authorized to issue the order;

(2) The identity of, or a particular description of, the person, if known, whose communications are to be intercepted;

(3) The nature and location of the communication facilities

as to which, or the place of the communication as to which, authority to intercept is granted;

(4) A particular description of the type of the communication to be intercepted and a statement of the particular offense to which it relates;

(5) The identity of the investigative or law enforcement officers or agency to whom the authority to intercept a wire or oral communication is given and the identity of whoever authorized the application; and

(6) The period of time during which such interception is authorized; including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

No order entered under this section shall authorize the interception of any wire or oral communication for a period of time in excess of that necessary under the circumstances. Every order entered under this section shall require that such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this section. In no case shall an order entered under this section authorize the interception of wire or oral communications for any period exceeding 30 days. Extensions or renewals of such an order may not be granted unless an application for it is made in accordance with this section, and the Court makes the findings required by subsections (i), (j) and this subsection.

Whenever an order authorizing an interception is entered, the order may require reports to be made 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. Such reports shall be made at such intervals as the judge may require.

(1) Whenever, upon informal application by an authorized applicant, any Judge of the Superior Court determines there are grounds upon which an order could be issued pursuant to this section and that an emergency situation exists with respect to the

investigation of conspiratorial activities of organized crime, related to an offense designated in subsection (g) of this section, dictating authorization for immediate interception of wire or oral communication before an application for an order could with due diligence be submitted to him and acted upon, the judge may grant written approval for such interception without an order, conditioned upon the filing with him, within 48 hours, thereafter, of an application for an order which, if granted, shall recite the written approval and be retroactive to the time of such written approval. Such interception shall immediately terminate when the communication sought is obtained or when the application for an order is denied. In the event no application for an order is made, the content of any wire or oral communication intercepted shall be treated as having been obtained in violation of this section.

In the event no application is made or an application made pursuant to this section is denied, the court shall require the wire, tape or other recording of the intercepted communication to be delivered to, and sealed by, the court and such evidence shall be retained by the court in accordance with subsection (m) and the same shall not be used or disclosed in any legal proceeding except in a civil action brought by an aggrieved person pursuant to subsection (w) or as otherwise authorized by court order. Failure to effect delivery of any such wire, tape or other recording shall be punishable as contempt by the court directing such delivery. Evidence of written authorization to intercept an oral or wire communication shall be a defense to any charge against the investigating or law enforcement officer for engaging in unlawful interception.

(m) The contents of any

(1) wire or oral communication intercepted in accordance with this section shall, if practicable, be recorded by tape, wire or other comparable method. The recording shall be done in such a way as will protect it from editing or other alteration. Immediately upon the expiration of the order or extensions or renewals thereof, the tapes, wires or other recordings shall be transferred to the Judge issuing the order and sealed under his direction. Custody of the tapes, wires or other recordings shall be maintained wherever the court directs. They shall not be destroyed except upon an order of such court and in any event shall be kept for 10

years. Duplicate tapes, wires or other recordings may be made for disclosures or use pursuant to subsection (o) of this section. The presence of the seal provided by this section, or a satisfactory explanation for its absence, shall be a prerequisite for the disclosure of the contents of any wire or oral communication, or evidence derived therefrom, under subsection (p) of this section.

(2) Applications made and orders granted pursuant to this section and supporting papers shall be sealed by the court and shall be held in custody as the court shall direct and shall not be destroyed except on order of the court and in any event shall be kept for 10 years. They may be disclosed only upon a showing of good cause before a court of competent jurisdiction.

Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying court.

(n) Within a reasonable time but not later than 90 days after the termination of the period of the order or of extensions or renewals thereof, or the date of the denial of an order applied for under subsection (1), the issuing or denying judge shall cause to be served on the person named in the order or application, and such other parties to the intercepted communications as the judge may in his discretion determine to be in the interest of justice, an inventory which shall include:

(1) Notice of the entry of the order or the application for an order denied under subsection (1);

(2) The date of the entry of the order or the denial of an order applied for under subsection (1);

(3) The period of authorized or disapproved interception; and

(4) The fact that during the period wire or oral communications were or were not intercepted.

The court, upon the filing of a motion, may in its discretion make available to such person or his attorney for inspection such portions of the intercepted communications, applications and orders as the court determines to be in the interest of justice. On an ex parte showing of good cause to the court the serving of the inventory required by this subsection may be postponed.

(o) (1) Any investigative or law enforcement officer who, by any means authorized by this section, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents or evidence to another investigative or law enforcement officer to the extent that such disclosure or use is appropriate to the proper performance of his official duties.

(2) Any investigative or law enforcement officer who, by any means authorized by this section, has obtained knowledge of the contents of any wire or oral communications or evidence derived therefrom may use such contents to the extent such use is appropriate to the performance of his official duties.

(p) Any person who, by any means authorized by this section, has obtained any information concerning any wire or oral communication or evidence derived therefrom intercepted in accordance with the provisions of this section, may disclose the contents of such communication or derivative evidence while giving testimony under oath or affirmation in any criminal proceeding in any court of this or another State or of the United States or before any Federal or State grand jury.

() When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order or authorization, the contents thereof and evidence derived therefrom may be disclosed or used as provided in subsection (o). Such contents and any evidence derived therefrom may be used under subsection (p) when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this section. Such application shall be made as soon as practicable.

(a) Except as specifically authorized pursuant to this section any person who uses or discloses the existence of an order authorizing interception of a wire or oral communication or the contents of, or information concerning, an intercepted wire or oral communication or evidence derived therefrom, is guilty of a misdemeanor, and shall be imprisoned no more than 1 year, or fined in such amount as the Court shall determine, or both.

(s) The contents of any wire or oral communication intercepted in accordance with the provisions of the section, or evidence derived therefrom, shall not be disclosed in any trial, hearing, or proceeding before any court of this State unless not less than 10 days before the trial, hearing, or proceeding the parties to the action have been served with a copy of the order and accompanying application under which the interception was authorized.

This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing or proceeding, and that the party will not be prejudiced by the failure to make the service.

(t) Any aggrieved person in any trial, hearing, or proceeding in or before any court or other authority of this State or political subdivision thereof may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that:

(1) The communication was unlawfully intercepted;

(2) The order of authorization is insufficient on its face;

(3) The interception was not made in conformity with the order of authorization.

The motion shall be made at least 10 days before the trial, hearing or proceeding unless there was no opportunity to make the motion or the moving party was not aware of the grounds for the motion. The court, upon the filing of such motion by the aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication, or evidence derived therefrom, as the court determines to be in interests of justice. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall not be received in evidence in the trial, hearing or proceeding, and shall be treated as having been obtained in violation of this section.

the official to whom the order authorizing the intercept was granted shall certify to the court that the appeal is not taken for purposes of delay. The appeal shall be taken within the time specified by the Rules of Court and shall be diligently prosecuted.

(u) Within 30 days after the expiration of an order or an extension or renewal thereof entered under this section or the denial of an order confirming verbal approval of interception, the issuing or denying judge shall make a report to the President Judge of the Superior Court stating that:

(1) An order, extension or renewal was applied for;

(2) The kind of order applied for;

(3) The order was granted as applied for, was modified, or was denied;

(4) The period of the interceptions authorized by the order, and the number and duration of any extensions or renewals of order;

(5) The offense specified in the order, or extension or renewal of an order;

(6) The identity of the person authorizing the application and of the investigative or law enforcement officer and agency for whom it was made; and

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

(v) The Attorney General, or Deputy Attorney General specifically designated by the Attorney General shall make and file all reports required by federal law.

(w) Any person whose wire or oral communication is intercepted, disclosed or used in violation of this section shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication; and shall be entitled to recover from any such person;

(1) Actual damages, but not less than liquidated damages computed at the rate of $100.00 a day for each day of violation, or $1,000.00 whichever is higher;

(2) Punitive damages; and

(3) A reasonable attorney's fee and other litigation costs reasonably incurred.

A good faith reliance on a court order authorizing the interception shall constitute a complete defense to a civil or criminal action brought under this section or to administrative proceedings brought against a law enforcement officer.

(x) (1) The Superior Court shall have the power to make rules to carry the provisions of this Section into effect.

(2) The Superior Court shall have exclusive original jurisdiction of any criminal violations of this section.

Section 2. Any action, case, prosecution, trial or proceeding in progress under or pursuant to the previous wording of the section amended by this Act, no matter what stage of the proceeding shall be preserved and shall not become illegal or terminated upon the effective date of this act. For purposes of such proceedings in progress, the prior law shall remain in full force and effect. Any violation of the previous section shall within the limits of the statute of limitations, be prosecuted under that section.

Section 3. If any subsection, phrase, sentence, words or word or the application thereof to any person or circumstances be declared unconstitutional any other subsections, phrases, sentences, words or word or other persons or circumstances shall not be affected thereby and shall remain in full force and effect.

Approved January 28, 1972.