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1 Drug L. Rep. 1 (1981-1982)

handle is hein.journals/drularet1 and id is 1 raw text is: LAW VOL. 1, NO. 1 PATRICK BISHOP, Editor AUGUST 1981 BREAK, ENTER, AND WIRETAP IN TEXAS The 67th Legislature of Texas, stampeded into action by anti-drug zealots, has joined the twenty-six states and the District of Columbia which, following the lead of the federal government, have passed laws permitting law enforcement officers to break into homes and businesses in order to plant bugging devices. (A check of state laws shows that eight states outlaw all wiretapping; six forbid wiretapping except when done by law enforcement officers-but their laws do not conform to federal legislation; and nine states still have no legislation on the subject. For details, see the appendix to this section.) The Texas legislation, which will go into effect on Sep- tember 1, 1981 (as Article 18.20 of the Texas Code of Crimi- nal Procedure), is based on Title III of the Safe Streets and Omnibus Crime Act of 1968 (codified in 18 U.S.C. §§2510- 20). Unlike the federal legislation (and that of most of the states that have passed similar acts), the Texas statute allows wiretapping and covert entry to bug only in cases involving felony drug offenses (other than felony possession of mari- juana). Other jurisdictions allow bugging to find evidence of a broad spectrum of crimes ranging from murder to bribery. An attempt to include bribery of public officials as a crime meriting wiretapping was defeated by the Texas Legislature. Despite the open inclusion of provisions for covert entry to effect bugging of suspected citizens, there was depressingly little opposition to the legislation by either the Legislature or public opinion. Only a handful of legislators were willing to be branded as supporting the rights of dope pushers not to be burglarized by state police agents. The state's newspapers and television stations ignored the impli- IN THIS ISSUE .... Break, Enter, and Wiretap in Texas ........... page 1 Editor's Message ............................. page 2 Table of Contents (Recent Cases) ............... page 4 Recent Cases ................................ page 6 Drug Journal ............................... page 34 Federal Declination Policies Vary from District to District ............... page 35 cations of the legislation-apparently neither realizing nor caring that it gives virtually unfettered authority to local prosecutors (a group not known for scrupulous adherence to constitutional principles) to initiate break-ins into the homes and businesses of citizens for the purpose of planting recording devices. While there, of course, the police agents can seize anything in plain view that shows evidence of any sort of criminal activity. Since the bugs will have to be hidden under beds, in drawers, or in closets, one supposes that anything found in those places will be considered in plain view and worthy of seizure. Those convicted of crimes on the basis of this evidence should have a good privacy argu- ment on appeal-if that is any consolation to them. The only controls over abuse of this legislation by law enforcement agents are the clumsy procedures by which the wiretaps are initiated-and the fact that all requests must be by sworn affidavit. A lot will depend on the vigor with which the nine judges who will rule on warrants ask questions of the prose- cutors who request authority to break into homes and businesses. Drug Law Reporter is publishing the full text of the Texas statute (with some comments) in the hope that our readers in states that have not yet passed such legislation will be alerted to what they can expect when the current anti-drug hysteria crests in their jurisdictions. AN ACT relating to the interception and use of wire or oral communications; providing penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. CHAPTER 18, Code of Criminal Procedure, 1965, as amended, is amended by adding Article 18.20 to read as follows: ART. 18.20. INTERCEPTION AND USE OF WIRE OR ORAL COMMUNICATIONS Sec. 1. DEFINITIONS. In this article: (1) 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. (2) Oral communication means an oral communication uttered by a person exhibiting an expectation that the communication is not continued on page 38 Pubished twelve t nies a year, Annual subscription rate is 275 00 tor I-) issues wit h i htree ring Iinder C opyright 1981, All rights resered. I hi reprodu tion of this w, ork in itn lori kI forbidde'rn without the written permission of both the coleItge and the editor. National Co llege for I uianal Iefense, Co l lege of I~aw, Uniersity of Iuston. PO Dr er I 1007, HiousIton. Texas 770121

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