HB 1298: Warrants for GPS Tracking: Guidelines (introduced AFTER crossover!)

Place-holder for long first post. Includes full text of bill.

TFred

On a lark, I reloaded a web page I had up with the high-end numbered HB bills. Lo and behold, a new one popped up, HB 1298, on this, the first day AFTER crossover!

Apparently when the Governor asks that a bill be introduced after crossover, it gets introduced.

I suspect this bill is a direct result of the recent SCOTUS case on Warrantless GPS tracking.

TFred


HB 1298: GPS tracking device; provides authority & protocol for law enforcement to apply for search warrant.
Criminal procedure; GPS tracking device. Provides the authority and the protocol for a law-enforcement officer to apply for a search warrant to permit the use of a GPS tracking device.


Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 19.2-56.2 as follows:

§ 19.2-56.2. Application for and issuance of search warrant for a tracking device; installation and use.

A. As used in this section unless the context requires a different meaning:

"Law-enforcement officer" shall have the meaning used in § 9.1-101.

"Tracking device" means an electronic or mechanical device that permits the tracking of the movement of a person or object. "Tracking device" includes devices that both store geographic data for subsequent access or analysis and devices that allow for the real-time monitoring of movement.

“Use of a tracking device” includes the installation, maintenance, monitoring, and removal of a tracking device.

B. A law-enforcement officer may apply for a search warrant from a circuit court to permit the use of a tracking device. Each application for a search warrant authorizing the use of a tracking device shall be made in writing, upon oath or affirmation, to a circuit court judge in the circuit in which the tracking device is to be installed, where the person whose property is to be tracked lives, works, or maintains an address or post office box, or where there is probable cause to believe the offense for which the tracking device is sought was committed, is being committed, or will be committed. The law-enforcement officer shall submit an affidavit, which shall include:

1. The identity of the applicant and the identity of the law-enforcement agency conducting the investigation;

2. The identity of the vehicle, container, item, or object to which, in which, or on which the tracking device is to be attached, placed, or otherwise installed; the name of the owner or possessor of the vehicle, container, item, or object described, if known; and the jurisdictional area in which the vehicle, container, item, or object described is expected to be found, if known; and

3. Material facts constituting the probable cause for the issuance of the search warrant and alleging substantially the offense in relation to which such tracking device is to be used and a showing that probable cause exists to believe the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by the investigating agency.

C. 1. If the circuit court judge finds, based on the affidavit submitted, that there is probable cause that a crime was committed, is being committed, or will be committed and that there is probable cause to believe the information likely to be obtained from the use of the tracking device is relevant to an ongoing criminal investigation being conducted by the investigating agency, the court shall issue a search warrant authorizing the installation and use of the tracking device. The search warrant shall authorize the monitoring of the tracking device within the Commonwealth for a reasonable period, not to exceed 45 days from the issuance of the search warrant. The search warrant shall authorize the collection and analysis of the data contained in or obtained from the tracking device.

2. The court shall seal the affidavit, the search warrant, the return, and any other related materials or pleadings. Upon motion of the Commonwealth or the defendant, the court may unseal such documents if it appears that the unsealing is consistent with the ends of justice and is necessary to reasonably inform such person of the nature of the evidence to be presented against him or to adequately prepare his defense.

3. The court may, for good cause shown, grant one or more extensions, not to exceed 45 days each.

D. 1. The search warrant shall command the officer to complete the installation authorized by the search warrant within 15 days after issuance of the search warrant.

2. The officer executing the search warrant shall enter on it the exact date and time the device was installed and the period during which it was used.

3. Law-enforcement officers shall be permitted to monitor the tracking device during the period authorized by the court in the search warrant, unless extended as provided for in this section.

4. Law-enforcement officers shall remove the tracking device as soon as practical, but not later than 10 days, after the use of the tracking device has ended. Upon request, and for good cause shown, the court may grant one or more extensions for such removal for a period not to exceed 10 days each.

5. Within 10 days after the use of the tracking device has ended, the officer executing the search warrant shall return the warrant to the judge designated in the search warrant.

E. Within 10 days after the use of the tracking device has ended, the officer executing the search warrant shall serve a copy of the search warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked or by leaving a copy at the person's residence or usual place of abode with an individual of suitable age and discretion who resides at that location and by mailing a copy to the person's last known address. Upon request, and for good cause shown, the court may grant one or more extensions for such service for a period not to exceed 30 days each.

F. The unauthorized disclosure or publication of the existence of a search warrant issued pursuant to this section, application for such search warrant, any affidavit filed in support of such warrant, or any return or data obtained as a result of such search warrant is punishable as a Class 1 misdemeanor.

When judicial rule makes it necessary to either amend or introduce legislation to remedy behavior newly determined to be unconstitutional, the GA should not be forced to wait a year before addressing the matter.

That being said, I am still wondering why there needs to be a law granting police officers permission to apply for a search warrant that involves the use of a GPS tracking device. To my uneducated mind it seems that a search warrant is a search warrant, and how that search is conducted (ransacking the house or slipping a GPS tracker under the bumper in the middle of the night) is essentially the same.

What I do note is several "changes" in how a warrant of this type is to be served and executed. In order:

C.1.: there is a time limit for the duration of te warrant - 45 days. This is probably good.

C.2.: sealing of the warrant and all associated documents is required, as opposed to requiring the Commonwealth to petition for sealing. Too close to Star Chamber tactics for my liking. Let the Commonwealth make its case for secrecy in open court.

D.1.: there is a time limit in which to install the device. This is a good thing - 10 days should allow you enough time to find a convenient time and place to sneak it under the bumper.

D.4.: removal is mandated. I suppose that allowing 10 days from the expiration of the warrant is necessary to allow enough time to retrive it without getting noticed. But there's a part of me that does not trust the cops to stop recording (or even noticing) data transmitted after the expiration of the warrant.

E.: Notification of the issuance and execution of the warrant is only to be provided after the search has been conducted. This after the subject of the search had no opportunity [see C.2.] to oppose the sealing of the application, the warrant, and all other papers. Again, it's too close to Star Chamber bahavior for my liking. No, I do not know how to balance this one while still allowing the cops to conduct their GPS tracking. But at first blush the ex post facto notification at least gives the object of the search some notice and thus opportunity to object (probably by motions to quash/seal any information obtained). But just like having the judge tell the jury to "ignore" what has just been said/heard, how can you unsee what has been seen. And how can you assure the public that you really, truely, honestly were not influenced by what you were not supposed to know?

I'm not opposed to the use of GPS tracking as a part of criminal investigations. I just see some "issues" with this legislation as currently proposed.

stay safe.

Thanks Skid, I'm glad I posted it now.

Perhaps some of these issues will be addressed in the committee process.

TFred

TFred said:

On a lark, I reloaded a web page I had up with the high-end numbered HB bills. Lo and behold, a new one popped up, HB 1298, on this, the first day AFTER crossover!

Apparently when the Governor asks that a bill be introduced after crossover, it gets introduced.

I suspect this bill is a direct result of the recent SCOTUS case on Warrantless GPS tracking.

TFred

Click to expand...

The Governor made the same request to the Senate:
SB685: GPS tracking device; provides authority & protocol for law enforcement to apply for search warrant.