October 25, 2005, Introduced by Reps. Miller, Jones, Meisner, Kehrl, Bennett, Sak, Lemmons, Jr., Sheltrown, Brandenburg, Polidori, Sheen, Stewart, Wojno, Lipsey and Lemmons, III and referred to the Committee on Judiciary.
A bill to amend 1931 PA 328, entitled
"The Michigan penal code,"
by amending sections 539a and 539g (MCL 750.539a and 750.539g),
section 539g as amended by 1993 PA 227, and by adding section 539l.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
539a. As used in sections 539a to 539i 539l:
(a) (1)
"Private place" means a
place where one may
reasonably expect to be safe from casual or hostile intrusion or
surveillance but does not include a place to which the public or
substantial group of the public has access.
(b) (2)
"Eavesdrop" or
"eavesdropping" means to overhear,
record, amplify or transmit any part of the private discourse of
others without the permission of all persons engaged in the
discourse.
Neither this definition or nor
any other provision of
this act shall modify or affect any law or regulation concerning
interception, divulgence or recording of messages transmitted by
communications common carriers.
(c) (3)
"Surveillance" means to
secretly observe the
activities of another person for the purpose of spying upon and
invading the privacy of the person observed.
(d) (4)
"Person" means any
individual, partnership,
corporation or association.
Sec. 539g. Sections 539a to 539f do not prohibit any of the
following:
(a) Eavesdropping or surveillance not otherwise prohibited by
law by a peace officer of this state or of the federal government,
or the officer's agent, while in the performance of the officer's
duties.
(b) Hearing a communication transmitted by common carrier
facilities by an employee of a communications common carrier when
acting in the course of his or her employment.
(c) The recording by a public utility of telephone
communications to it requesting service or registering a complaint
by a customer, if a record of the communications is required for
legitimate business purposes and the agents, servants, and
employees of the public utility are aware of the practice or
surveillance by an employee safeguarding property owned by, or in
custody of, his or her employer on his or her employer's property.
(d) The routine monitoring, including recording, by employees
of the department of corrections of telephone communications on
telephones available for use by prisoners in state correctional
facilities, if the monitoring is conducted in the manner prescribed
by
section 70 of Act No. 232 of the Public Acts of 1953, being
section
791.270 of the Michigan Compiled Laws the corrections code
of 1953, 1953 PA 232, MCL 791.270, and rules promulgated under that
section.
(e) Eavesdropping conducted by a law enforcement officer in an
emergency situation as allowed under section 539l.
Sec. 539l. (1) A law enforcement officer, upon approval of the
attorney general or an assistant attorney general, or without that
approval if a reasonable effort has been made to contact the
attorney general or an assistant attorney general, may use an
eavesdropping device in an emergency situation as described in
subsection (4). The use of the eavesdropping device must be in
accordance with this section and may be allowed only where the law
enforcement officer reasonably believes that an order permitting
the use of the device would issue if a prior hearing had been held.
(2) In all cases described in subsection (1), an application
for an order approving the previous or continuing use of an
eavesdropping device shall be made within 48 hours after the
commencement of that use. If an order approving the previous or
continued use is not obtained, or if the court denies issuance of
the order, the law enforcement officer shall immediately terminate
any continuing use of the eavesdropping device. Before a judge may
issue an order approving the emergency use, the judge must make a
determination as to both of the following:
(a) That the order would have been granted had the information
been before the court prior to the use of the device.
(b) That there was an emergency situation as described in
subsection (4).
(3) If an application for approval under subsection (2) is
denied, the contents of the conversations overheard or recorded
shall be treated as having been obtained in violation of this
section.
(4) An emergency situation exists when, without previous
notice to the law enforcement officer sufficient to obtain prior
judicial approval, either or both of the following apply:
(a) The use of the device is necessary for the protection of
the law enforcement officer.
(b) The conversation to be overheard or recorded will occur in
a situation involving a clear and present danger of imminent death
or great bodily harm to persons resulting from either of the
following:
(i) A kidnapping or the holding of a hostage by force or the
threat of the imminent use of force.
(ii) The occupation by force, or the threat of the imminent use
of force, of any premises, place, vehicle, vessel, or aircraft.
(5) As used in this section, "law enforcement officer" means a
sheriff or sheriff's deputy, a village or township marshal, an
officer of the police department of any city, village, or township,
an officer of the Michigan state police, or any peace officer
trained and certified under the commission on law enforcement
standards act, 1965 PA 203, MCL 28.601 to 28.616.