BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2055 (Fuentes) 5
As Amended April 25, 2012
Hearing date: July 3, 2012
Penal Code
MK:mc
SEARCH WARRANTS:
TRACKING DEVICES
HISTORY
Source: Los Angeles County District Attorney's Office
Prior Legislation: SB 1980 (McPherson) - Chapter 864, Stats 2002
SB 662 (Figueroa) - Chapter 896, Stats. 1999
Support: Association for Los Angeles Deputy Sheriffs; Riverside
Sheriffs' Association; California District Attorneys
Association
Opposition:None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUES
SHOULD THE LAW PROVIDE FOR AN ISSUANCE OF A SEARCH WARRANT WHEN THE
INFORMATION FROM THE USE OF A TRACKING DEVICE WOULD TEND TO SHOW
THAT A PARTICULAR PERSON HAS COMMITTED A FELONY, IS COMMITTING A
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FELONY, OR WILL ASSIST IN LOCATING AN INDIVIDUAL WHO HAS COMMITTED
OR IS COMMITTING A FELONY?
SHOULD THE LAW REQUIRE A SEARCH WARRANT FOR THE INSTALLATION OF A
TRACKING DEVICE?
PURPOSE
The purpose of this bill is to require a warrant for information
received from the use of a tracking device.
The U.S. Constitution 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 and the persons or things to be seized." (Fourth
Amendment of the U.S. Constitution.)
The California Constitution provides that "the right of the
people to be secure in their 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,
� 13 of the California Constitution.)
Existing law defines a "search warrant" as an order in writing
in the name of the People, signed by a magistrate, directed to a
peace officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate. (Penal Code � 1523.)
Existing law provides that a search warrant may be issued upon
any of the following grounds:
a) When the property was stolen or embezzled.
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b) When the property or things were used as the means of
committing a felony.
c) When the property or things are in the possession of
any person with the intent to use them as a means of
committing a public offense, or in the possession of
another to whom he or she may have delivered them for the
purpose of concealing them or preventing them from being
discovered.
d) 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.
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of
a child, or possession of matter depicting sexual conduct
of a person under the age of 18 years, has occurred or is
occurring.
f) When there is a warrant to arrest a person.
g) When a provider of electronic communication service
or remote computing service has records or evidence,
showing that property was stolen or embezzled constituting
a misdemeanor, or that property or things are in the
possession of any person with the intent to use them as a
means of committing a misdemeanor public offense, or in
the possession of another to whom he or she may have
delivered them for the purpose of concealing them or
preventing their discovery. (Penal Code � 1524(a).)
Existing law sets forth procedures for a search warrant issued
for records of a foreign corporation that provides electronic
communication services or remote computing services to the
general public, where those records would reveal the identity of
the customers using services, data stored by, or on behalf of,
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the customer, the customer's usage of those services, the
recipient or destination of communications sent to or from those
customers, or the content of those communications. (Penal Code
� 154.2.)
Existing law provides that a provider of electronic
communication or remote computing service shall disclose to a
governmental prosecuting or investigating agency the name,
address, local and long distance toll billing records, telephone
number or other subscriber number or identity, and length of
service of as subscriber to or customer of that service and
types of services the subscriber or customer utilized when the
governmental entity is granted a search warrant. (Penal Code �
1524.3(a).)
Existing law provides that a provider of wire or electronic
communication services or a remote computing service, upon the
request of a peace officer, shall take all necessary steps to
preserve records and other evidence in its possession pending
the issuance of a search warrant or a request in writing and an
affidavit declaring an intent to file a warrant to the provider.
Records shall be retained of a period of 90 days which shall be
extended for an additional 90-day upon a renewed request by the
peace officer. (Penal Code � 1524.3(d).)
Exiting law 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 � 1525.)
This bill 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.
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This bill provides that a tracking-device search warrant shall
be executed in a manner meeting the requirements specified in
Penal Code Section 1534(b).
This bill 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.
This bill allows the court to grant one or more extensions for
the time that the device may be used if good cause is
established.
This bill provides that each extension may last a reasonable
length of time, but may not exceed 30 days.
This bill 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.
This bill 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 cause.
This bill mandates execution of the warrant to be completed no
later than 10 days immediately after the date of issuance.
This bill deems a warrant executed within this 10-day period to
be timely executed.
This bill provides that after 10 days the warrant shall be void,
unless it has been executed.
This bill states that an officer executing a tracking-device
search warrant is not required to knock and to announce his or
her presence before execution.
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This bill 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.
This bill 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.
This bill authorizes a judge, for good cause, to delay service
of a copy of the warrant if a government agency makes this
request.
This bill provides that the order permitting the installation of
a tracking device may authorize the installation and its use
only with the State of California, provided the tracking device
is installed within the State of California.
This bill defines a "tracking device" as any electronic or
mechanical device that permits the tracking of the movement of a
person or object.
This bill defines "daytime" as the hours between 6:00 a.m. and
10:00 p.m. according to local time.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
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application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
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circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for this Bill
According to the author:
On January 23, 2012, the United States Supreme Court
held in United States v. Jones, that the warrantless
use of a self-contained GPS tracking device ("slap-on")
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.
Prior to the Jones decision, case law had separated GPS
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vehicle tracking devices into two separate categories:
(1) tracking devices that are self-powered and attached
to the external carriage of a vehicle (commonly
referred to as a "slap-on" device), and (2) tracking
devices which are installed through an intrusion into
the vehicle and which may connect the tracking device
to the vehicle's internal power supply (commonly
referred to as a "hard-wire" device).
In People v. Zichwic (2001) 94 Cal.App.4th 944,
954-956, the California Court of Appeal held that the
attachment of a vehicle tracking device to the external
undercarriage of the defendant's vehicle without a
warrant ("slap-on" device) did not violate the Fourth
Amendment, because the tracking device was place on the
exterior of the defendant's vehicle and because the
defendant's vehicle travelled in areas that were
otherwise visible to the public.
However, where an intrusion is required to place a
tracking device into an area where the suspect
possesses a reasonable expectation of privacy
("hard-wire" device), and where the item or vehicle is
located in a place where a suspect has a reasonable
expectation of privacy, a warrant is required for both
the installation and monitoring of the tracking device.
(People v. Smith 67 Cal.App.3d 638, 654; United States
v. Karo 468 U.S. 705, 714-718.)
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.
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AB 2055 would amend California law to require the use
of a warrant whenever a "slap-on" GPS tracking device
is used by law enforcement to monitor a motor vehicle's
movements, and to specifically authorize the court to
issue a warrant for the use of a "slap-on" device. The
proposal would be modeled on Rule 41(e)(2)(C) of 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. Rule 41(e)(2)(C) of the Federal Rules
of Criminal Procedure has withstood court challenge
which would guarantee the constitutionality of our
proposal.
2. Search and Seizure Generally
The Fourth Amendment of the U.S. Constitution and Article I,
Section 13 of the California Constitution protect people against
unreasonable searches and seizures. Generally, the lawfulness
of a search of the items in the arrestee's immediate control is
based upon the need to protect the officer and to discover
evidence in the case. This has been found to include search of
items when a person is booked into jail on the theories that the
time lag is inconsequential: it is less of an invasion than a
public search at the place of arrest; is necessary for inventory
purposes; and can protect from contraband being brought into the
jail. However, if the search is remote in time and the property
has been removed from the defendant's possession and is in the
control of the police, then a warrantless search has been found
not to be reasonable. Numerous cases have looked at this issue
of when a search incident to arrest is valid. (See for example:
U.S v. Robinson (1973) 414 U.S. 218; U.S. v. Edwards (1974) 415
U.S. 800; U.S. v. Chadwick (1977) 433 U.S. 1; N.Y. v. Belton
(1981) 453 U.S. 454; People v. Hamilton (1988) 46 C. 3d 123).)
After Proposition 8 (June 1982), in California, the scope of a
search incident to arrest is based on federal law thus
California courts will look to the federal courts for precedent
when deciding a case.
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3. United States v. Jones
On January 23, 2012, the U.S. Supreme Court decided the case of
U.S. v. Jones (132 S.Ct. 945(2012)) and found that the
government's attachment of a GPS device to a vehicle and its use
of that device to monitor the vehicle's movements, constitutes a
search under the Fourth Amendment. In Jones, all members of the
Court found that the law enforcement's attachment and subsequent
monitoring of a GPS on a vehicle violated the Fourth Amendment,
although with two concurring opinions, various justices reached
that conclusion using different legal reasoning.
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.
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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,
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.
4. Search Warrant for GPS Tracking
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. The bill provides that the
warrant cannot be issued for more than 30 days, with the ability
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of the court to grant additional 30-day extensions upon a
showing of good cause. The bill also provides that the warrant
must be executed within 10 days of its being granted. This bill
defines "tracking device" as any electronic or mechanical device
that permits the tracking of the movement of a person or object.
5. Immunity for Releasing Information Pursuant to a Warrant.
The author will amend the bill in Committee to make it clear
that a corporation which releases information pursuant to a
warrant will be not be subject to a lawsuit for that release.
This language is based on existing language in Penal Code
Sections 1524.2 and 1524.3 which deal with the release of
records held by electronic communication service or remote
computing service. The language the author intends to take is:
(k) No cause of action shall lie against any foreign or
California corporation subject to this section, its
officers, employees, agents, or other specified persons
for providing records, location information,
information, facilities, or assistance in accordance
with the terms of a warrant issued pursuant to
subsection (a)(12) or a lawful request made pursuant to
a recognized exception to the warrant requirement.
6. SB 1434 (Leno)
This bill is similar to SB 1434 (Leno) which passed this
Committee on April 24, 2012, with a vote of 5-2. While this
bill requires warrants for tracking devices SB 1434 focuses on
the location information. The authors have been working to make
their bills compatible and the remaining issue is whether a
warrant is necessary for stored information.
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