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 |
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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. Notwithstanding any other law to the
contrary, a judge or magistrate may grant the issuance of a search warrant
based on a sworn oral statement communicated in person or by telephone, or
based on a sworn statement communicated electronically, subject to the
following procedures:
(1) In
the case of an application for a warrant based on a sworn oral statement that
is communicated in person or by telephone:
(A) 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 paragraph (2) may result in the destruction or
disappearance of the person, place, or thing to be searched or the items to be
seized;
(B) The
applicant shall make a recording of all communications between the applicant
and the judge or magistrate, and between any witness and the judge or
magistrate;
(C) The judge or magistrate shall place the applicant under oath;
(D) The applicant's sworn oral statement shall be made under penalty
of perjury and shall be deemed the affidavit;
(E) 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;
(F) The judge or magistrate may examine any exhibits that are relied
upon to support the application for a warrant;
(H) 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;
(I) The recording of communications between the applicant and the
judge or magistrate, and between any witness 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
(J) The applicant shall provide a 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, which shall be subject to further order of the court.
(2) In the case of
an application for a warrant based on a sworn statement communicated
electronically:
(A) The
application shall consist of an affidavit and a search warrant, and may be
supported by exhibits;
(B) The applicant shall electronically sign and date the affidavit
under penalty of perjury, using the "/s/ (title) John Doe, date"
format. An affidavit that is signed in
accordance with this subparagraph shall be deemed a sworn affidavit;
(C) 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 pursuant to the format prescribed in subparagraph (B);
(D) 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. The judge's
or magistrate's examination of the applicant and any other witness shall be
recorded and transcribed, and a copy of the transcript shall be filed with the
clerk of the court;
(E) The judge or magistrate may examine any exhibits that are relied
upon to support the application for a warrant;
(F) The application shall not be granted unless the judge or
magistrate is satisfied that there is probable cause for the issuance of a
warrant;
(G) 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 pursuant to the format
prescribed in subparagraph (B);
(H) The judge or magistrate shall provide a copy of the
electronically signed warrant and affidavit to the applicant;
(I) The judge or magistrate shall file the warrant, affidavit, and
any exhibits with the clerk of the court; and
(J) The applicant shall provide a 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, which shall be subject to further order of the court.
(3) 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 made
by a judge or [other] magistrate, or issued pursuant to section
803- , 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 shall be 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, 2050.
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. (HB1773 HD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
