BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  AB 2055
                                                                  Page  1

          Date of Hearing:  April 17, 2012
          Counsel:       Sandy Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                   AB 2055 (Fuentes) - As Amended:  March 29, 2012
                       As Proposed to be Amended in Committee
           
           
           SUMMARY  :  Establishes procedures for tracking-devices search 
          warrants.  Specifically,  this bill  :  

          1)Allows a tracking-device search warrant to be issued when the 
            information to be received from the use of a tracking device 
            constitutes evidence that tends to show a felony has been 
            committed or is being committed, tends to show that a 
            particular person has committed a felony or is committing a 
            felony, or will assist in locating an individual who has 
            committed or is committing a felony.

          2)Provides that a tracking-device search warrant shall be 
            executed in a manner meeting the requirements specified in 
            Penal Code Section 1534(b).

          3)Requires a tracking-device search warrant to identify the 
            person or property to be tracked and to specify a reasonable 
            length of time, not to exceed 30 days, from the date the 
            warrant is issued, that the device may be used.

          4)Allows the court to grant one or more extensions for the time 
            that the device may be used if good cause is established.

          5)Provides that each extension may last a reasonable length of 
            time, but may not exceed 30 days.

          6)States that the search warrant shall command the officer to 
            execute the warrant by installing a tracking device or by 
            serving a warrant on a third-party possessor of the tracking 
            data.

          7)Requires the officer to perform any installation authorized by 
            the warrant during the daytime, unless the magistrate 
            expressly authorizes installation at another time for good 








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            cause.

          8)Mandates execution of the warrant to be completed no later 
            than 10 days immediately after the date of issuance.

          9)Deems a warrant executed within this 10-day period to be 
            timely executed.

          10)Provides that after 10 days the warrant shall be void, unless 
            it has been executed.

          11)States that an officer executing a tracking-device search 
            warrant is not required to knock and to announce his or her 
            presence before execution.

          12)Requires the officer executing the warrant to file a return 
            to the warrant no later than 10 calendar days after the use of 
            the tracking device has ended.

          13)Requires the officer executing the warrant to serve a copy of 
            the warrant on the person who was tracked or whose property 
            was tracked no later than 10 calendar days after the use of 
            the tracking device has ended.

          14)Authorizes a judge, for good cause, to delay service of a 
            copy of the warrant if a government agency makes this request.

          15)Defines a "tracking device" as any electronic or mechanical 
            device that permits the tracking of the movement of a person 
            or object.

          16)Defines "daytime" as the hours between 6:00 a.m. and 10:00 
            p.m. according to local time.

           EXISTING FEDERAL LAW  provides that "the right of the people to 
          be secure in their persons, houses, papers, and effects, against 
          unreasonable searches and seizures, shall not be violated, and 
          no Warrants shall issue, but upon probable cause, supported by 
          Oath or affirmation, and particularly describing the place to be 
          searched an the persons or things to be seized."  (Fourth 
          Amendment to the U.S. Constitution.)

           EXISTING STATE LAW  :

          1)Provides that "the right of the people to be secure in their 








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            persons, houses, papers and effects against unreasonable 
            seizures and searches may not be violated; and a warrant may 
            not issue except on probable cause, supported by oath or 
            affirmation, particularly describing the place to be searched 
            and the persons and things to be seized." (Article I, Section 
            13 of the California Constitution.)

          2)Prohibits exclusion of relevant evidence in a criminal 
            proceeding on the ground that the evidence was obtained 
            unlawfully, unless the relevant evidence must be excluded 
            because it was obtained in violation of the federal 
            Constitution's Fourth Amendment.  ›Article I, Section 28(f)(2) 
            of the California Constitution (Right to Truth-in-Evidence 
            provision).]

          3)Defines a "search warrant" as a written order in the name of 
            the people, signed by a magistrate and directed to a peace 
            officer, commanding him or her to search for a person or 
            person, a thing or things, or personal property.   (Penal Code 
            Section 1523.)

          4)Provides the specific grounds upon which a search warrant may 
            be issued, including when the property or things to be seized 
            consist of any item or constitute any evidence that tends to 
            show a felony has been committed, or tends to show that a 
            particular person has committed a felony.  (Penal Code Section 
            1524.)

          5)Provides that a search warrant cannot be issued but upon 
            probable cause, supported by affidavit, naming or describing 
            the person to be searched or searched for, and particularly 
            describing the property, thing or things and the place to be 
            searched.  (Penal Code Section 1525.)

          6)Requires a magistrate to issue a search warrant if he or she 
            is satisfied of the existence of the grounds of the 
            application or that there is probable cause to believe their 
            existence.  ›Penal Code Section 1528(a).]

           FISCAL EFFECT  :   Unknown

           COMMENTS :  

           1)Author's Statement  :  According to the author, "On January 23, 
            2012, the United States Supreme Court held in United States v. 








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            Jones, that the warrantless use of a self-contained GPS 
            tracking device on a motor vehicle, and its use of that device 
            to monitor the vehicle's movements, constituted a "search" and 
            therefore violated the protections guaranteed by the Fourth 
            Amendment to the United States Constitution.

          "Unfortunately, the Supreme Court did not explicitly state that 
            a warrant was required to use a self-contained GPS tracking 
            device, nor did they state whether any of the exceptions to 
            the warrant requirement apply to the use of a self-contained 
            GPS tracking device.  Because of the Court's silence courts 
            and law enforcement agencies are using different standards for 
            the use of these devices.

          "AB 2055 would apply a uniform statewide standard for the use of 
            electronic tracking devices that would require law enforcement 
            to prepare a warrant that would require judicial review and 
            approval before they could be used in California.  The 
            language in AB 2055 is modeled on the Federal Rules of 
            Criminal Procedure."

           2)U.S. v. Jones (2012) 132 S.Ct. 945  :  In Jones, the United 
            States Supreme Court held that attaching a global positioning 
            system (GPS) device to a person's vehicle to track his or her 
            movements constitutes a search within the meaning of the 
            Fourth Amendment.  Authorities obtained a search warrant to 
            install a GPS device on defendant's car as part of a drug 
            trafficking investigation. But, the authorities did not 
            install the device until after the warrant expired.  The 
            device was used to track the defendant's movements for almost 
            one month.  When charges were filed against defendant, he 
            moved to suppress the GPS evidence as the product of an 
            illegal search.  The prosecution argued at trial and on appeal 
            that a search within the meaning of the Fourth Amendment had 
            not occurred because Jones did not have a reasonable 
            expectation of privacy in the location of his vehicle on 
            public streets, which was visible to all.  

          The Supreme Court found the government's use of a GPS monitoring 
            device is a search within the meaning of the Fourth Amendment, 
            and therefore must be reasonable.  The majority decision was 
            not based on the reasonable expectation of privacy test for 
            challenges to law enforcement surveillance, which is generally 
            employed.  ›Katz v. U.S. (1967) 389 U.S. 347.]  Instead, the 
            majority based its decision on common law trespass principals, 








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            holding that attaching a GPS device to a vehicle (an "effect") 
            for purposes of data collection constitutes a search because 
            the government physically occupied private property for the 
            purpose of information gathering.  But five of the justices 
            (the four members of the Alito concurrence, plus Justice 
            Sotomayor) were critical of the trespass theory, stating the 
            majority should have used the reasonable expectation of 
            privacy test.

            While the Court's decision established that the use of a 
            tracking device qualifies as a search, the opinion left open 
            other questions.  First, the Court left open the questions of 
            whether a warrant is required for these types of searches and 
            whether it requires probable cause, as opposed to a lesser 
            standard like reasonable suspicion.  The Court also did not 
            answer the question of how it might apply the Fourth Amendment 
            to law enforcement data collection that does not require a 
            physical intrusion, such as where GPS or toll paying devices 
            are installed or used by the owner and the information they 
            produce are mined by law enforcement authorities.  Although, 
            the Court did suggest that the expectation of privacy analysis 
            would apply, and four judges concurred with the majority that 
            this would be the proper analysis.  

            This bill answers some of those open questions.  This bill 
            establishes that a warrant is required to obtain 
            tracking-device data, regardless of whether the data is 
            collected by means of physical intrusion or mined by law 
            enforcement through devices installed or used by the owner.  
            This bill also sets forth procedures for law enforcement to 
            follow in order to obtain a warrant.

           3)Background on GPS Tracking  :  According to a 2011 Congressional 
            Research Service report, "Generally, GPS is a satellite-based 
            technology that discloses the location of a given object.  
            This technology is used in automobiles and cell phones to 
            provide individual drivers with directional assistance.  Just 
            as individuals are finding increasing applications for GPS 
            technology, state and federal governments are as well. State 
            and federal law enforcement use various forms of GPS 
            technology to obtain evidence in criminal investigations."  
            (Law Enforcement Use of Global Positioning (GPS) Devices to 
            Monitor Motor Vehicles: Fourth Amendment Considerations 
            .)









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            Tracking a person's movements on a 24-hour basis for an 
            extended period of time is qualitatively different than 
            conducting visual surveillance of that person during a single 
            trip, and can reveal significantly more information about a 
            person's activities and pattern of life.  "The whole of a 
            person's progress through the world, into both public and 
            private spatial spheres, can be charted and recorded over 
            lengthy periods possibly limited only by the need to change 
            the transmitting unit's batteries. Disclosed in the data 
            retrieved from the transmitting unit, nearly instantaneously 
            with the press of a button on the highly portable receiving 
            unit, will be trips the indisputably private nature of which 
            takes little imagination to conjure: trips to the 
            psychiatrist, the plastic surgeon, the abortion clinic, the 
            AIDS treatment center, the strip club, the criminal defense 
            attorney, the by-the-hour motel, the union meeting, the 
            mosque, synagogue or church, the gay bar and on and on. What 
            the technology yields and records with breathtaking quality 
            and quantity is a highly detailed profile, not simply of where 
            we go, but by easy inference, of our associations--political, 
            religious, amicable and amorous, to name only a few--and of 
            the pattern of our professional and avocational pursuits."  
            ›People v. Weaver (2009) 909 N.E. 2d 1195, at 1198-99.]

            Mobile tracking devices can track an individual in a manner 
            that would previously been practically impossible because of 
            costs and time.  At a minimal cost, the Los Angeles Police 
            Department can now affix a GPS device to a passing car simply 
            by launching a GPS-enabled dart. The darts consist of a 
            miniaturized GPS receiver, radio transmitter, and battery 
            embedded in a sticky compound material.  When fired at a 
            vehicle, the compound adheres to the target, and thereafter 
            permits remote real-time tracking of the target from police 
            headquarters.  ›See Renee McDonald Hutchins, Tied Up in 
            Knotts?  GPS Technology and the Fourth Amendment, 55 UCLA L. 
            Rev. 409, 419 (2007).]  This is the kind of uninterrupted, 
            24-hours-a-day surveillance now possible through use of a GPS 
            device.    

           4)Time Restrictions for Executing the Warrant  :  This bill 
            provides that a tracking-device authorized by the search 
            warrant shall be installed during the daytime, unless the 
            magistrate finds good cause to allow the installation at a 
            different time.  This bill defines "daytime" as the hours 
            between 6:00 a.m. and 10:00 p.m.  Current law provides that in 








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            the absence of direction by the magistrate as to the time for 
            a search, the warrant shall be served only between the hours 
            of 7:00 a.m. and 10:00 p.m.  (Penal Code Section 1533.)  The 
            provision of this bill is consistent with that time 
            limitation.

           5)Time Limits for Execution and Return  :  Consistent with current 
            time limits for execution and return of a search warrant, this 
            bill provides that there is a 10-day period to timely execute 
            a tracking-device warrant; after the 10-day period, the 
            warrant is void unless the warrant has been executed.  
            ›Compare with Penal Code Section 1534(a).]

           6)Argument in Support  :  According to The  Los Angeles County 
            District Attorney's Office  (the sponsor of this bill), 
            "Because the Court in Jones ruled that the use of a 
            self-contained GPS tracking device constituted a search under 
            the 4th Amendment, but did not specifically state that a 
            warrant was required to use these devices nor did the Court 
            opine on whether or not any of the warrant exceptions apply to 
            the use of a self-contained GPS tracking devices, courts and 
            law enforcement agencies are using different standards for the 
            use of these devices.

          "AB 2055 would apply a uniform statewide standard for the use of 
            electronic tracking devices that would require law enforcement 
            to prepare a warrant that would require judicial review and 
            approval before they could be used in California.  The 
            language in AB 2055 is modeled on the Federal Rules of 
            Criminal Procedure, which provides that law enforcement 
            officers have 10 days to execute the warrant after it has been 
            issued and then have 45 days from the date of issuance to 
            monitor the GPS tracking device."

           7)Related Legislation  :  SB 1434 (Leno) establishes procedures 
            for obtaining a tracking-device search warrant.  SB 1434 is 
            pending hearing by the Senate Public Safety Committee.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Los Angeles County District Attorney's Office (Sponsor)
          California District Attorneys Association









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           Opposition 
           
          None
           

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744