Offenses Against Public Order and Safety Hb 55

• Jurisdiction: Georgia,United States
• Publication year: 2013
• Citation: Vol. 30 No. 1

Offenses Against Public Order and Safety HB 55

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CRIMES AND OFFENSES

Offenses Against Public Order and Safety: Amend Part 1 of Article 3 of Chapter 11 of Title 16 of the Official Code of Georgia Annotated, Relating to Wiretapping, Eavesdropping, Surveillance, and Related Offenses, so as to Change Provisions Relating to Interception of Wire or Oral Transmissions by Law Enforcement Officers; Change Provisions Relating to the Application and Issuance of Orders Authorizing Installation and Use of Pen Register and Trap and Trace Device; Provide for Related Matters; Provide for an Effective Date; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A §§ 16-11-64, -64.1 (amended)

Bill Number: HB 55

Act Number: 2

Georgia Laws: 2013 Ga. Laws 4

Summary: The Act clarifies the jurisdictional requirements of a judge issuing a wiretap authorization. A superior court judge that has jurisdiction over the crime under investigation may issue investigation warrants permitting the use of surveillance devices, such as wiretaps. The Act provides these warrants shall have state-wide application. Likewise, the Act grants state-wide application to warrants that authorize and approve the installation of pen register and trap and trace devices. Further, the Act allows the interception devices to be located anywhere in the state.

Effective Date: February 13, 2013

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History

On January 7, 2013, the Georgia Supreme Court ruled that the Gwinnett County Superior Court lacked jurisdiction to issue a wiretap warrant where the tapped phones or listening posts were located outside the issuing judge's judicial circuit.¹ The decision immediately affected over thirty defendants on certiorari for wide-ranging drug importation indictments² and restricted police officers' ability to do their investigative jobs. The Court based its decision on legislative interpretation of the Georgia Wiretap Statute.³

Before the year 2000, the Georgia Wiretap Statute included a territorial jurisdiction limitation that authorized only the superior court judges of the circuit wherein the interception device was to be placed to issue the applicable warrants.⁴ The legislature later amended the statute to allow superior court judges having jurisdiction over the crime being investigated to issue warrants permitting the use of interception devices.⁵ In doing so, the General Assembly changed the focus from the device's physical location to the location of the underlying crime.⁶

The statute was again amended in 2002, as part of Georgia's Support of the War on Terrorism Act of 2002, and provided:

Upon written application, under oath, of the prosecuting attorney having jurisdiction over prosecution of the crime under investigation, or the Attorney General, made before a judge of superior court, said court may issue an investigation warrant permitting the use of [a wiretapping] device . . . for the surveillance of such person or place to the extent the same is consistent with and subject to the terms, conditions, and

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procedures provided for by Chapter 119 of Title 18 of the United States Code Annotated, as amended.

This language removed the jurisdictional requirements on superior court judges and added conditional language requiring consistency with the federal wiretap statute.⁸ Ultimately, this led to the Georgia Supreme Court's decision in Luangkhot v. State.⁹

Despite multiple attempts by the legislature to broaden the jurisdictional scope of superior court judges regarding wiretaps,¹⁰ in Luangkhot v. State the Georgia Supreme Court found the Gwinnett County Superior Court lacked jurisdiction to issue wiretap warrants.¹¹ In that case, over thirty indicted defendants moved to suppress evidence obtained through wiretap investigations, claiming the Gwinnett court lacked jurisdiction to issue the wiretap warrants where the phones and listening posts were located outside of Gwinnett County, even though the crimes under investigation were committed inside the county.¹² The defendants, in interpreting the Georgia wiretap statute, relied primarily on federal statute 18 U.S.C. § 2518(1) and (3)¹³ which provide that "'a judge of competent jurisdiction . . . may enter an ex parte order . . . authorizing or approving interception of wire . . . communications within the territorial jurisdiction of the court in which the judge is sitting[.]'"¹⁴ According to the defendants, the language of the federal statute "imposes a 'territorial jurisdiction' upon Georgia superior court judges that is limited to the county in which the judge sits, and that therefore the Gwinnett County Superior Court judges . . . could not issue wiretap warrants for interceptions occurring beyond the bounds of Gwinnett County."¹⁵

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The Georgia Court of Appeals denied the defendants' motion, stating their reliance on the federal statute was misplaced.¹⁶ Instead, the court held the "territorial jurisdiction" language of 18 U.S.C. § 2518(3) applied to federal court judges issuing wiretap warrants pursuant to the federal wiretap statute and not to state court judges issuing wiretap warrants pursuant to the state wiretap statute.¹⁷ Agreeing with the State's reliance on the Eleventh Circuit's decision in Adams v. Lankford,¹⁸ the court stated "it is clear that Congress intended that state law would define the 'territorial jurisdiction' of each state court."¹⁹ Thus, the Georgia Court of Appeals turned to the state statute to determine the scope of an issuing superior court judge's territorial jurisdiction.²⁰ The statute's plain language placed a territorial limitation on the prosecuting attorney applying for the warrant²¹ but only required that a superior court judge issue the warrant.²² Absent an express territorial limitation, the court then focused on the legislative history of the Georgia wiretap statute which clearly broadened jurisdictional authority with each amendment.²³ Given the plain language and legislative history of the statute, combined with Congress's intent for the states to define "territorial jurisdiction," the Georgia Court of Appeals held that Code section 16-11-64(c) authorized Gwinnett County Superior Court judges to issue wiretap warrants for interceptions that occurred

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outside of the county because the judges had jurisdiction over the investigated crimes.²⁴ In doing so, the Court of Appeals denied the defendants' motion to suppress evidence.

However, the Georgia Supreme Court disagreed and held Georgia state law defined "territorial jurisdiction" as the judicial circuit in which the superior court judge presides.²⁵ Admitting the legislature was authorized to carve out exceptions to this rule, the Georgia Supreme Court pointed out that it did not expressly do so, and thus applied this "default rule."²⁶ The Court did not agree with the Court of Appeals that the state wiretap statute's general language permitting "'a judge of superior court . . . [to] issue an investigative warrant,'" expressly granted superior courts broad authority to issue warrants outside of their judicial circuits.²⁷ Instead, it held such a broad grant of power, absent any "evidence, textual or otherwise," could not be granted under such terms.²⁸ The Court went on to say that the legislature could have explicitly granted such authority.²⁹ Moreover, the fact that the legislature expanded territorial jurisdiction in other areas of the same bill gave weight to the presumption that its lack of explicitly granting the same broad authority in the wiretap statute was intentional.³⁰

This decision, handed...