BILL ANALYSIS �
AB 2055
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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
AB 2055
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Opposition
None
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744