Bill Title: To prohibit the use of a tracking device to determine the location or movement of a person without the person's consent subject to specified exceptions, to provide for the issuance of a search warrant to a law enforcement officer or prosecutor authorizing the installation, use, and removal of a tracking device subject to specified conditions, and to provide for the installation and use of a tracking device by an investigative officer or law enforcement officer without a search warrant in specified emergency situations and subject to specified conditions.
Spectrum: Partisan Bill (Republican 9-0)
Status: (Introduced - Dead) 2009-10-06 - To Criminal Justice
[HB304 Detail]Download: Ohio-2009-HB304-Introduced.html
As Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Representatives Adams, J., Blair, Boose, Grossman, Huffman, Ruhl, Sears, Stebelton
A BILL
| To enact sections 2917.51 and 2933.81 of the Revised | 1 |
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Code to prohibit the use of a tracking device to | 2 |
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determine the location or movement of a person | 3 |
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without the person's consent subject to specified | 4 |
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exceptions, to provide for the issuance of a | 5 |
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search warrant to a law enforcement officer or | 6 |
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prosecutor authorizing the installation, use, and | 7 |
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removal of a tracking device subject to specified | 8 |
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conditions, and to provide for the installation | 9 |
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and use of a tracking device by an investigative | 10 |
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officer or law enforcement officer without a | 11 |
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search warrant in specified emergency situations | 12 |
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and subject to specified conditions. | 13 |
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2917.51 and 2933.81 of the Revised | 14 |
Code be enacted to read as follows: | 15 |
Sec. 2917.51. (A) As used in this section: | 16 |
(1) "Tracking device" means any device that reveals its | 17 |
location or movement by the transmission of electronic signals. | 18 |
(2) "Class A license," "class B license," and "private | 19 |
investigator" have the same meanings as in section 4749.01 of the | 20 |
Revised Code. | 21 |
(B) Except as otherwise provided in this section, no person | 22 |
shall use a tracking device to determine the location or movement | 23 |
of another person without the other person's consent. | 24 |
(C) Division (B) of this section does not apply to the use of | 25 |
a tracking device pursuant to section 2933.81 of the Revised Code | 26 |
by any law enforcement agency, law enforcement officer, | 27 |
prosecutor, or investigative officer if the use is in accordance | 28 |
with that section. | 29 |
(D) Division (B) of this section does not apply to any of the | 30 |
following: | 31 |
(1) The use of a tracking device to determine the location or | 32 |
movement of another person if the owner or lien holder of a | 33 |
vehicle has consented to the use of a tracking device with respect | 34 |
to the vehicle and the device is used with respect to that | 35 |
vehicle; | 36 |
(2) The use of a tracking device to determine the location or | 37 |
movement of another person if the lessor or lessee of a vehicle | 38 |
and the person operating the vehicle have consented to the use of | 39 |
a tracking device with respect to the vehicle and the device is | 40 |
used with respect to that vehicle; | 41 |
(3) To an action of a law enforcement agency acting in a law | 42 |
enforcement capacity or to an action of a law enforcement | 43 |
official, court official, or other authorized person that relates | 44 |
to an offender's or delinquent child's use of a global positioning | 45 |
system device, global positioning device, or electronic monitoring | 46 |
device required pursuant to a sanction imposed or order issued | 47 |
under any provision of the Revised Code; | 48 |
(4) To an action of United States military law enforcement | 49 |
personnel in the performance of the personnel's official duties; | 50 |
(5) To an action of a parent, guardian, custodian, or person | 51 |
in loco parentis of a child or another person, with respect to | 52 |
determining the location or movement of the child or other person | 53 |
with whom the parent, guardian, custodian, or person in loco | 54 |
parentis has the specified legal relationship; | 55 |
(6) To an action of a person who is a family member or | 56 |
caregiver of another person who has been diagnosed by a licensed | 57 |
physician to be suffering from Alzheimer's disease, vascular | 58 |
dementia, Pick's disease, Creutzfeldt-Jakob disease, Parkinson's | 59 |
disease, or Lewy body dementia, with respect to determining the | 60 |
location or movement of the other person who has been so | 61 |
diagnosed; | 62 |
(7) To an action of a facility licensed, certified, or | 63 |
accredited pursuant to Chapter 3712., 3721., 3722., or 3727. of | 64 |
the Revised Code, with respect to determining the location or | 65 |
movement of a patient through the use of a tracking device when | 66 |
the device is considered medically necessary by the patient's | 67 |
physician; | 68 |
(8) To the provision of a commercial service, including, but | 69 |
not limited to, a mobile telephone service or vehicle safety or | 70 |
security service, that allows the provider of the service to | 71 |
determine the location or movement of a device provided to a | 72 |
customer of the commercial service for the purpose of providing | 73 |
the commercial service; | 74 |
(9) To an action of a private investigator who has been | 75 |
issued a class A or class B license under Chapter 4749. of the | 76 |
Revised Code that is valid at the time of the action, while in the | 77 |
performance of any duty that is authorized for the private | 78 |
investigator in connection with pending, active civil litigation | 79 |
if all of the following are satisfied: | 80 |
(a) Before engaging in the action, the private investigator | 81 |
obtains an order authorizing the use of a tracking device from the | 82 |
court of common pleas of the county in which the person who is the | 83 |
subject of the tracking device resides. | 84 |
(b) Any information or data obtained as a result of the use | 85 |
of a tracking device by the private investigator is kept | 86 |
confidential and is not to be disclosed to any person other than | 87 |
the
judge and the parties involved in the litigation and their | 88 |
attorneys except upon order of the court in which the civil | 89 |
litigation is pending, the information or data so obtained is | 90 |
subject to discovery by any party to the civil litigation, and, | 91 |
upon the termination of the civil litigation, the information or | 92 |
data is immediately destroyed. | 93 |
(E) Notwithstanding division (D) of this section, no person | 94 |
shall be required to be implanted with a tracking device pursuant | 95 |
to this section. | 96 |
(F) Whoever violates this section is guilty of "unauthorized | 97 |
use of a tracking device," a misdemeanor of the first degree. | 98 |
Sec. 2933.81. (A) As used in this section: | 99 |
(1)(a) Except as provided in division (A)(1)(b) of this | 100 |
section, "tracking device" means an electronic or mechanical | 101 |
device that, when placed or installed upon a person or object, | 102 |
permits one or more other persons to remotely determine or track | 103 |
the position and movement of the person upon whom, or the object | 104 |
upon which, the device is placed or installed. | 105 |
(b) As used in this section, "tracking device" does not | 106 |
include any of the following: | 107 |
(i) Any device, including, but not limited to, a cellular | 108 |
telephone or another personal electronic device, that includes as | 109 |
an incidental feature the capability of determining the location | 110 |
of the device by utilizing a global positioning satellite system; | 111 |
(ii) Any device that is installed or utilized with the | 112 |
knowledge and consent of the owner or user of the device or, in | 113 |
the case of a minor, with the knowledge and consent of the minor's | 114 |
parent or guardian. | 115 |
(2) "Investigative officer" has the same meaning as in | 116 |
section 2933.51 of the Revised Code. | 117 |
(3) "Law enforcement officer" means any sheriff, deputy | 118 |
sheriff, constable, municipal police officer, marshal, deputy | 119 |
marshal, or state highway patrolman, or any officer, agent, or | 120 |
employee of this state or any of its agencies, instrumentalities, | 121 |
or political subdivisions upon whom, by statute, the authority to | 122 |
arrest violators is conferred, when the officer, agent, or | 123 |
employee is acting within the limits of that statutory authority. | 124 |
(4) "Prosecutor" means the prosecuting attorney of a county, | 125 |
the village solicitor, city director of law, or similar chief | 126 |
legal officer of a municipal corporation, and any assistant of any | 127 |
of those officers. | 128 |
(B) A law enforcement officer of a law enforcement agency in | 129 |
the county in which the tracking device is to be installed, or a | 130 |
prosecutor who serves that county or a municipal corporation | 131 |
within that county, may apply to a judge of the court of common | 132 |
pleas of that county for the issuance of a search warrant | 133 |
authorizing the installation, use, and removal of a tracking | 134 |
device. Each application for a search warrant of that nature shall | 135 |
be in writing upon oath or affirmation to a judge of the court of | 136 |
common pleas of the county in which the tracking device is to be | 137 |
installed and shall contain all of the following: | 138 |
(1) A full and complete statement of the facts relied on by | 139 |
the applicant that are sufficient to establish probable cause to | 140 |
believe that a particular crime has been committed, is being | 141 |
committed, or will be committed and that the person or object to | 142 |
be tracked is involved, was involved, or will be involved in the | 143 |
commission or facilitation of that crime; | 144 |
(2) A full and complete statement of the facts relied on by | 145 |
the applicant that are sufficient to establish probable cause to | 146 |
believe that the use of a tracking device will result in the | 147 |
prevention of a criminal offense under investigation, the seizure | 148 |
of evidence relevant to the investigation or prosecution of a | 149 |
criminal offense, or the whereabouts of a fugitive from justice or | 150 |
a suspect, victim, or witness relating to a criminal offense; | 151 |
(3) A particular description of the person or object upon | 152 |
which a tracking device is to be installed. | 153 |
(C) Upon the written application of a law enforcement officer | 154 |
or prosecutor made pursuant to division (B) of this section, a | 155 |
judge of a court of common pleas with whom the application is made | 156 |
may issue a search warrant authorizing the installation, use, and | 157 |
removal of a tracking device. If a judge of a court of common | 158 |
pleas issues a search warrant of that nature, all of the following | 159 |
apply: | 160 |
(1) A tracking device authorized by the search warrant shall | 161 |
be installed within ten days after the issuance of the warrant and | 162 |
shall be installed within the county served by the issuing judge. | 163 |
The date and time of installation shall be recorded and included | 164 |
in the return described in division (C)(4) of this section that is | 165 |
made to the issuing judge. If the tracking device is not installed | 166 |
within the ten-day period specified in this division, the warrant | 167 |
shall be returned to the issuing judge as unexecuted. | 168 |
(2) The search warrant shall authorize the use of a tracking | 169 |
device for a reasonable period of time, not to exceed forty-five | 170 |
days, unless extended as provided in this division, commencing on | 171 |
the date on which the tracking device is installed upon the person | 172 |
or object to be tracked. Upon written application for an extension | 173 |
of the authorized time for use of the device and upon a finding of | 174 |
good cause, the issuing judge may authorize one or more extensions | 175 |
of the search warrant for a reasonable period of time, not to | 176 |
exceed forty-five days for each such extension. | 177 |
(3) When the period of time authorized for the use of a | 178 |
tracking device under the search warrant or the last extension of | 179 |
the period of time for the use of the device has expired, | 180 |
monitoring of the tracking device shall be discontinued | 181 |
immediately. | 182 |
(4) Within ten days after the period of time authorized for | 183 |
the use of a tracking device under the search warrant or the last | 184 |
extension of the period of time for the use of the device has | 185 |
expired, the officer executing the warrant shall make a return of | 186 |
the warrant to the issuing judge. The return shall specify the | 187 |
date on which and the time at which the tracking device was | 188 |
installed, the address or location of installation of the tracking | 189 |
device, the date on which and the time at which the monitoring was | 190 |
discontinued, and a general summary of the movements of the object | 191 |
or person tracked during the duration of the tracking. | 192 |
(5) Within ten days after the period of time authorized for | 193 |
the use of a tracking device under the search warrant or the last | 194 |
extension of the period of time for the use of the device has | 195 |
expired, the officer executing the warrant shall serve a copy of | 196 |
the warrant on the person who was tracked or whose property was | 197 |
tracked. The office shall accomplish service of the warrant on a | 198 |
person under this division by delivering a copy of it to the | 199 |
person, by leaving a copy of it at the person's residence or usual | 200 |
place of abode with an individual of suitable age and discretion | 201 |
who resides at that location, or by mailing a copy of it to the | 202 |
person's last known address. Upon the request of the law | 203 |
enforcement officer or prosecutor who applied for the warrant or | 204 |
the officer who executed the warrant, the issuing judge may delay | 205 |
for a reasonable time service of the notice otherwise required | 206 |
under this division. If the issuing judge delays service of notice | 207 |
upon request as described in this division, the notice shall be | 208 |
served not later than ten days after the issuance of an arrest | 209 |
warrant, indictment, or information based wholly or in part upon | 210 |
information derived from the use of a tracking device pursuant to | 211 |
the warrant. | 212 |
(6) A tracking device installed and used under the authority | 213 |
of the search warrant may be used within the county served by the | 214 |
issuing judge and, provided the device is installed within that | 215 |
county, may be used outside that county. | 216 |
(7) Except as otherwise provided in this division, the search | 217 |
warrant and any extension of the warrant, the application upon | 218 |
which the warrant and extensions, if any, were issued, the | 219 |
affidavit supporting the warrant and extensions, if any, the | 220 |
return made under division (C)(4) of this section, and any request | 221 |
for an order granting a delay in the service of notice made as | 222 |
described in division (C)(5) of this section shall be filed with | 223 |
the clerk of the court of common pleas served by the issuing | 224 |
judge, or with the issuing judge if so ordered, at the time the | 225 |
return is made or when the warrant has been returned pursuant to | 226 |
division (C)(1) of this section as unexecuted. The judge who | 227 |
issues the search warrant may order that the documents described | 228 |
in this division be sealed while an investigation remains ongoing | 229 |
until such time that an arrest warrant, indictment, or information | 230 |
based wholly or in part upon information derived from the use of | 231 |
the tracking device installed and used under the authority of the | 232 |
warrant is issued. | 233 |
(D)(1) Any investigative officer or law enforcement officer | 234 |
who is specially designated in writing by the attorney general or | 235 |
by a prosecuting attorney for the purpose of having installed and | 236 |
using a tracking device without the prior issuance of a search | 237 |
warrant, may have installed and use a tracking device without the | 238 |
prior issuance of a search warrant pursuant to divisions (B) and | 239 |
(C) of this section, subject to division (D)(2) of this section, | 240 |
if the officer reasonably determines both of the following: | 241 |
(a) That an emergency situation exists that involves either | 242 |
immediate danger of death or serious physical harm to any person | 243 |
or conspiratorial activities characteristic of organized crime and | 244 |
the emergency situation requires the installation and use of a | 245 |
tracking device before a search warrant authorizing that | 246 |
installation and use can, with due diligence, be obtained pursuant | 247 |
to divisions (B) and (C) of this section; | 248 |
(b) There are grounds upon which a search warrant could be | 249 |
issued pursuant to divisions (B) and (C) of this
section to | 250 |
authorize such installation and use. | 251 |
(2) If an investigative officer or law enforcement officer | 252 |
has installed and uses a tracking device under authority of | 253 |
division (D)(1) of this section, within forty-eight hours after | 254 |
the time the tracking device is installed, the officer or another | 255 |
investigative officer or law enforcement officer serving the same | 256 |
law enforcement agency as that officer shall apply for and obtain | 257 |
in accordance with divisions (B) and (C) of this section a search | 258 |
warrant approving the installation or use of the device. | 259 |
(3) If an application for a search warrant is made as | 260 |
described in division (D)(2) of this section and it is granted, | 261 |
division (C) of this section applies to the further installation | 262 |
and use of the tracking device. | 263 |
If an application for a search warrant is made as described | 264 |
in division (D)(2) of this section and the application is denied, | 265 |
or if the installation or use of the tracking device under | 266 |
division (D)(1) of this section is terminated without a search | 267 |
warrant having been issued pursuant to divisions (B) and (C) of | 268 |
this section, any tracking information or other surveillance | 269 |
effected pursuant to division (D)(1) of this section is | 270 |
confidential and shall not be disclosed or be admissible in any | 271 |
court of this state except to prove violations of this section or | 272 |
section 2917.51 of the Revised Code. | 273 |