BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2055|
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THIRD READING
Bill No: AB 2055
Author: Fuentes (D)
Amended: 8/7/12 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 7/3/12
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
ASSEMBLY FLOOR : 72-0, 5/3/12 - See last page for vote
SUBJECT : Search warrants: tracking devices
SOURCE : Los Angeles County District Attorneys Office
DIGEST : This bill requires a warrant for information
received from the use of a tracking device.
ANALYSIS : 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
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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:
When the property was stolen or embezzled.
When the property or things were used as the means of
committing a felony.
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.
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.
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.
When there is a warrant to arrest a person.
When a provider of electronic communication service or
remote computing service has records or evidence, showing
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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, 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
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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.
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.
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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.
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.
This bill specifies that it shall not be construed to
create a cause of action against any foreign or California
corporation, its officers, employees, agents, or other
specified persons for providing location information.
Background
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
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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.
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
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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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/7/12)
Los Angeles County District Attorney's Office (source)
Association for Los Angeles Deputy Sheriffs
Riverside Sheriffs' Association
California District Attorneys Association
ARGUMENTS IN SUPPORT : 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 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).
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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.
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
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the constitutionality of our proposal.
ASSEMBLY FLOOR : 72-0, 5/3/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bradford, Brownley,
Buchanan, Butler, Charles Calderon, Campos, Carter,
Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fong, Fuentes, Beth Gaines,
Galgiani, Garrick, Gatto, Gordon, Gorell, Grove, Hagman,
Halderman, Harkey, Hayashi, Hill, Huber, Hueso, Huffman,
Jeffries, Knight, Lara, Logue, Bonnie Lowenthal, Ma,
Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell,
Nestande, Nielsen, Norby, Olsen, Pan, Perea, V. Manuel
P�rez, Portantino, Silva, Skinner, Solorio, Swanson,
Torres, Valadao, Wagner, Wieckowski, Yamada, John A.
P�rez
NO VOTE RECORDED: Bonilla, Fletcher, Furutani, Hall, Roger
Hern�ndez, Jones, Smyth, Williams
RJG:n 8/7/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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