Bill Text: HI HB1773 | 2018 | Regular Session | Amended
Bill Title: Relating To Search Warrants.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2018-04-23 - Received notice of Senate conferees (Sen. Com. No. 827). [HB1773 Detail]
Download: Hawaii-2018-HB1773-Amended.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1773 |
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TWENTY-NINTH LEGISLATURE, 2018 |
H.D. 1 |
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STATE OF HAWAII |
S.D. 1 |
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A BILL FOR AN ACT
RELATING TO SEARCH WARRANTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 803, Hawaii Revised Statutes, is amended by adding a new section to part III to be appropriately designated and to read as follows:
"§803- Warrants issued pursuant to oral
statements or electronic communications. (a)
A judge or magistrate may grant the issuance of a search warrant
pursuant to this section based on a sworn oral statement communicated in person
or by telephone, or based on a sworn statement communicated electronically.
(b) In the case of an application for a warrant
based on a sworn oral statement that is communicated in person or by telephone:
(1) The
application may only be granted if the judge or magistrate finds that due to
circumstances of time and place, a delay in obtaining a search warrant in
writing or pursuant to subsection (c) may result in the destruction or
disappearance of the person, place, or thing to be searched or the items to be
seized;
(2) The applicant
shall make a recording of all communications between the applicant and the judge
or magistrate, and between any other person who provides information that is
relied upon to support the application and the judge or magistrate;
(3) The
judge or magistrate shall place the applicant under oath;
(4) The
applicant's sworn oral recorded statement shall be made under penalty of perjury
and shall be deemed the affidavit;
(5) The
judge or magistrate may examine, under oath, the applicant and any other person
who provides information that is relied upon to support the application for a
warrant;
(6) The
judge or magistrate may request transmission of and examine any exhibits that
are relied upon to support the application for a warrant;
(8) If
the judge or magistrate is satisfied that there is probable cause for the
issuance of a warrant, the judge or magistrate shall identify the person, place, or thing to be searched and the items
to be seized;
(9) The
recording of communications between the applicant and the judge or magistrate,
and between any person who provides information that is relied upon to support
the application and the judge or magistrate, shall be transcribed. A copy of the transcript shall be filed with
the clerk of the court and the recording shall be deemed the warrant; and
(10) The
applicant shall provide an audio copy of the recording to the person who is
searched or whose premises or property are searched pursuant to the warrant;
provided that the judge or magistrate may issue a protective order that limits
disclosure of specific supporting information, which shall be subject to further
order of the court.
(c) In the case of an
application for a warrant based on a sworn statement communicated
electronically:
(1) The application
shall consist of an affidavit and a formatted unsigned search warrant, and may
be supported by exhibits;
(2) The
applicant shall electronically sign and date the affidavit under penalty of
perjury, using the "/s/ (title) (full name), date" format. An affidavit that is signed in accordance
with this subparagraph shall be deemed a sworn affidavit;
(3) To
the extent reasonably practicable, a prosecutor shall review an application for
a warrant that is based on a sworn statement communicated electronically. Upon satisfaction that the application is
complete and valid, the prosecutor shall electronically sign and date the
affidavit using the same format prescribed in paragraph (2);
(4) Nothing
in this subsection shall preclude a judge or magistrate from undertaking to
examine in person or by telephone, under oath, the applicant and any other
person who provides information that is relied upon to support the application
for a warrant. The judge's or
magistrate's examination of the applicant and any other person under this
paragraph shall be recorded and transcribed, and a copy of the transcript shall
be filed with the clerk of the court;
(5) The
judge or magistrate may examine any exhibits that are relied upon to support
the application for a warrant;
(6) The
application shall not be granted unless the judge or magistrate is satisfied
that there is probable cause for the issuance of a warrant;
(7) If
the judge or magistrate is satisfied that there is probable cause for the
issuance of a warrant, the judge or magistrate shall electronically sign and
date the warrant and affidavit in the same format prescribed in paragraph (2);
(8) The
judge or magistrate shall provide a copy of the electronically signed warrant
and affidavit to the applicant;
(9) The
judge or magistrate shall appropriately file the warrant, affidavit, and any
exhibits with the clerk of the court; and
(10) The
applicant shall provide an electronic copy of the warrant to the person who is
searched or whose premises or property are searched pursuant to the warrant;
provided that the judge or magistrate may issue a protective order that limits
disclosure of specific supporting information, which shall be subject to
further order of the court.
(d) A search warrant based on a sworn oral statement or a sworn statement communicated electronically shall not be executed between 10:00 p.m. and 6:00 a.m., unless the judge or magistrate permits execution during those hours."
SECTION 2. Section 803-31, Hawaii Revised Statutes, is amended to read as follows:
"§803-31 Search warrant; defined. A search warrant is an order in writing or
issued otherwise pursuant to section 803- made by a judge or [other]
magistrate, directed to an officer of justice, commanding the officer to search
for certain articles supposed to be in the possession of, or anticipated to be
in the possession of, one who is charged with having obtained them illegally,
or who keeps them illegally, or with the intent of using them as the means of
committing a certain offense. A search warrant
may identify an individual or entity authorized pursuant to section 803-37 to
provide technical assistance to the officer."
SECTION 3. Section 803-34, Hawaii Revised Statutes, is amended to read as follows:
"§803-34 Contents. The warrant shall be in writing, signed by the judge or magistrate, with the judge's or magistrate's official designation, or issued pursuant to section 803- , and shall be directed to a sheriff or other officer of justice, and commanding the sheriff or other officer to search for and bring before the judge or magistrate the property or articles specified in the affidavit, to be disposed of according to justice, and also to bring before the judge or magistrate for examination the person in whose possession the property or articles may be found. The warrant shall identify any individual or entity authorized pursuant to section 803-37 to provide technical assistance to the sheriff or officer."
SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 5. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect on July 1, 2035.
Report Title:
Honolulu Prosecuting Attorney Package; Criminal Procedure; Search Warrants; Oral Statements; Electronic Communications
Description:
Authorizes a judge or magistrate to approve a search warrant based on sworn oral statements or electronic communications. Effective 7/1/2035. (SD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
