Bill Text: TX SB1867 | 2021-2022 | 87th Legislature | Introduced
Bill Title: Relating to the issuance and execution of certain search warrants in a criminal investigation and the admissibility of evidence obtained through certain searches.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2021-03-26 - Referred to Criminal Justice [SB1867 Detail]
Download: Texas-2021-SB1867-Introduced.html
87R5882 JCG-D | ||
By: West | S.B. No. 1867 |
|
||
|
||
relating to the issuance and execution of certain search warrants | ||
in a criminal investigation and the admissibility of evidence | ||
obtained through certain searches. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Article 18.01(b), Code of Criminal Procedure, is | ||
amended to read as follows: | ||
(b) No search warrant shall issue for any purpose in this | ||
state unless sufficient facts are first presented to satisfy the | ||
issuing magistrate that probable cause does in fact exist for its | ||
issuance. A sworn affidavit setting forth substantial facts | ||
establishing probable cause shall be filed in every instance in | ||
which a search warrant is requested. Except as otherwise provided | ||
by this code [ |
||
public information when the search warrant for which the affidavit | ||
was presented is executed, and the magistrate's clerk shall make a | ||
copy of the affidavit available for public inspection in the | ||
clerk's office during normal business hours. | ||
SECTION 2. Article 18.02, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant may | ||
be issued to search for and seize: | ||
(1) property acquired by theft or in any other manner | ||
which makes its acquisition a penal offense; | ||
(2) property specially designed, made, or adapted for | ||
or commonly used in the commission of an offense; | ||
(3) arms and munitions kept or prepared for the | ||
purposes of insurrection or riot; | ||
(4) weapons prohibited by the Penal Code; | ||
(5) gambling devices or equipment, altered gambling | ||
equipment, or gambling paraphernalia; | ||
(6) obscene materials kept or prepared for commercial | ||
distribution or exhibition, subject to the additional rules set | ||
forth by law; | ||
(7) a drug, controlled substance, immediate | ||
precursor, chemical precursor, or other controlled substance | ||
property, including an apparatus or paraphernalia kept, prepared, | ||
or manufactured in violation of the laws of this state; | ||
(8) any property the possession of which is prohibited | ||
by law; | ||
(9) implements or instruments used in the commission | ||
of a crime; | ||
(10) property or items, except the personal writings | ||
by the accused, constituting evidence of an offense or constituting | ||
evidence tending to show that a particular person committed an | ||
offense; | ||
(11) persons; | ||
(12) contraband subject to forfeiture under Chapter 59 | ||
[ |
||
(13) electronic customer data held in electronic | ||
storage, including the contents of and records and other | ||
information related to a wire communication or electronic | ||
communication held in electronic storage; [ |
||
(14) a cellular telephone or other wireless | ||
communications device, subject to Article 18.0215; or | ||
(15) location information held in electronic storage, | ||
in accordance with Subchapter G-1, Chapter 18B. | ||
(b) For purposes of this article [ |
||
(1) "Electronic communication" and "wire | ||
communication" have the meanings assigned by Article 18A.001. | ||
(2) "Electronic customer data," [ |
||
"electronic storage," and "location information" [ |
||
the meanings assigned by Article 18B.001. | ||
SECTION 3. Article 18.06(a), Code of Criminal Procedure, is | ||
amended to read as follows: | ||
(a) A peace officer to whom a search warrant is delivered | ||
shall execute the warrant without delay and shall immediately | ||
[ |
||
SECTION 4. Article 18.07(a), Code of Criminal Procedure, is | ||
amended to read as follows: | ||
(a) Unless the magistrate directs in the warrant a shorter | ||
period for the execution of any search warrant issued under this | ||
chapter, Chapter 18A, or Chapter 18B, the [ |
||
the execution of the [ |
||
issuance and of the day of its execution, is: | ||
(1) 15 whole days if the warrant is issued solely to | ||
search for and seize specimens from a specific person for DNA | ||
analysis and comparison, including blood and saliva samples; | ||
(2) 10 whole days if the warrant is issued under | ||
Article 18B.354 or Subchapter G-1, Chapter 18B; or | ||
(3) three whole days if the warrant is issued for a | ||
purpose other than that described by Subdivision (1) or (2). | ||
SECTION 5. Article 18B.001, Code of Criminal Procedure, is | ||
amended by amending Subdivisions (7) and (8) and adding | ||
Subdivisions (9-a) and (9-b) to read as follows: | ||
(7) "Electronic customer data" means data or records, | ||
other than location information, that: | ||
(A) are in the possession, care, custody, or | ||
control of a provider of an electronic communications service or | ||
provider of a remote computing service; and | ||
(B) contain: | ||
(i) information revealing the identity of | ||
customers of the applicable service; | ||
(ii) information about a customer's use of | ||
the applicable service; | ||
(iii) information that identifies the | ||
recipient or destination of a wire or electronic communication sent | ||
to or by a customer; | ||
(iv) the content of a wire or electronic | ||
communication sent to or by a customer; and | ||
(v) any data stored with the applicable | ||
service provider by or on behalf of a customer. | ||
(8) "Electronic storage" means storage of electronic | ||
customer data or location information in a computer, computer | ||
network, or computer system, regardless of whether the data is | ||
subject to recall, further manipulation, deletion, or | ||
transmission. The term includes storage of a wire or electronic | ||
communication by an electronic communications service or a remote | ||
computing service. | ||
(9-a) "Immediate life-threatening situation" has the | ||
meaning assigned by Article 18A.201. | ||
(9-b) "Location information" means information, other | ||
than electronic customer data, that reveals the location of a | ||
wireless communications device obtained by any of the following | ||
methods: | ||
(A) using global positioning system (GPS) | ||
location-based measurements, including the querying of the target | ||
device's GPS service and the returned coordinates; | ||
(B) comparing a record of the target device's | ||
Internet Protocol (IP) address to a list of known IP addresses and | ||
approximate known locations; | ||
(C) querying the target device's operating | ||
system for the identity of nearby cellular towers and uploading the | ||
information to a server where the cellular tower identification may | ||
be compared to a list of known cellular tower locations; | ||
(D) querying the target device's operating | ||
system for the identifier (such as SSID or BSSID) associated with a | ||
nearby Wi-Fi access point and uploading that information to a | ||
server where the access point's identifier may be compared to a | ||
database or list of known identifiers of Wi-Fi access points in | ||
known locations; | ||
(E) using records derived from the device's | ||
connections to radio antennas through which a provider of an | ||
electronic communications service or provider of a remote computing | ||
service provides wireless service to that device; | ||
(F) using enhanced 9-1-1 location-based | ||
measurements; or | ||
(G) any combination of methods described in this | ||
subdivision or another similar method used to determine the | ||
location of a wireless communications device. | ||
SECTION 6. Chapter 18B, Code of Criminal Procedure, is | ||
amended by adding Subchapter G-1 to read as follows: | ||
SUBCHAPTER G-1. PROSPECTIVE LOCATION INFORMATION | ||
Art. 18B.321. APPLICABILITY. (a) This subchapter applies | ||
only to a warrant described by Article 18B.322 for the required | ||
disclosure of location information that is: | ||
(1) held in electronic storage in the possession, | ||
care, custody, or control of a provider of an electronic | ||
communications service or a provider of a remote computing service; | ||
and | ||
(2) created after the issuance of the warrant. | ||
(b) Articles 18B.355, 18B.356, and 18B.357 apply to a | ||
warrant issued under this subchapter in the same manner as those | ||
articles apply to a warrant issued under Article 18B.354. | ||
Art. 18B.322. WARRANT REQUIRED FOR CERTAIN LOCATION | ||
INFORMATION HELD IN ELECTRONIC STORAGE. (a) A warrant is required | ||
to obtain the disclosure of location information described by | ||
Article 18B.321(a) by a provider of an electronic communications | ||
service or a provider of a remote computing service. | ||
(b) Only a prosecutor or a prosecutor's assistant with | ||
jurisdiction in a county within a judicial district described by | ||
Article 18B.052(4) may file an application for a warrant under this | ||
subchapter. The application must be supported by the sworn | ||
affidavit required by Article 18.01(b). | ||
(c) The application must be filed with a district judge in | ||
the applicable judicial district on: | ||
(1) the prosecutor's or assistant's own motion; or | ||
(2) the request of an authorized peace officer of a | ||
designated law enforcement office or agency or an authorized peace | ||
officer commissioned by the department. | ||
Art. 18B.323. ISSUANCE OF WARRANT. (a) On the filing of an | ||
application for a warrant under this subchapter, a district judge | ||
may issue the warrant to obtain the disclosure of location | ||
information by a provider described by Article 18B.355(b), | ||
regardless of whether the location information is held at a | ||
location in this state or another state. | ||
(b) A warrant may not be issued under this article unless | ||
the sworn affidavit required by Article 18.01(b) provides | ||
sufficient and substantial facts to establish probable cause that: | ||
(1) the disclosure of the location information sought | ||
will: | ||
(A) produce evidence of an offense under | ||
investigation; or | ||
(B) result in the apprehension of a fugitive from | ||
justice; and | ||
(2) the location information sought is held in | ||
electronic storage in the possession, care, custody, or control of | ||
the service provider on which the warrant is served. | ||
(c) Only the location information described in the sworn | ||
affidavit required by Article 18.01(b) may be seized under the | ||
warrant. | ||
Art. 18B.324. DURATION; SEALING. (a) A warrant issued | ||
under this subchapter is valid for a period not to exceed 60 days | ||
after the date the warrant is issued, unless the prosecutor or | ||
prosecutor's assistant applies for and obtains an extension of that | ||
period from the court before the warrant expires. | ||
(b) Each extension granted under Subsection (a) may not | ||
exceed a period of 60 days. | ||
(c) A district court that issues a warrant under this | ||
subchapter shall order the warrant and the application for the | ||
warrant sealed and may not unseal the warrant and application until | ||
after the warrant expires. | ||
Art. 18B.325. EMERGENCY DISCLOSURE. (a) An authorized | ||
peace officer of a designated law enforcement office or agency or an | ||
authorized peace officer commissioned by the department may, | ||
without a warrant, require the disclosure of location information | ||
described by Article 18B.321(a) if: | ||
(1) the officer reasonably believes an immediate | ||
life-threatening situation exists that: | ||
(A) is within the officer's territorial | ||
jurisdiction; and | ||
(B) requires the disclosure of the location | ||
information before a warrant can, with due diligence, be obtained | ||
under this subchapter; and | ||
(2) there are sufficient grounds under this subchapter | ||
on which to obtain a warrant requiring the disclosure of the | ||
location information. | ||
(b) Not later than 48 hours after requiring disclosure of | ||
location information without a warrant under Subsection (a), the | ||
authorized peace officer shall obtain a warrant for that purpose in | ||
accordance with this subchapter. | ||
Art. 18B.326. CERTAIN EVIDENCE NOT ADMISSIBLE. The state | ||
may not use as evidence in a criminal proceeding any information | ||
obtained through the required disclosure of location information | ||
described by Article 18B.321(a), unless: | ||
(1) a warrant is obtained before requiring the | ||
disclosure; or | ||
(2) if the disclosure is required under Article | ||
18B.325 before a warrant can be obtained, the authorized peace | ||
officer who required the disclosure obtains a warrant as required | ||
by Subsection (b) of that article. | ||
SECTION 7. Article 18B.151(a), Code of Criminal Procedure, | ||
is repealed. | ||
SECTION 8. Chapter 18B, Code of Criminal Procedure, as | ||
amended by this Act, applies to the disclosure of certain | ||
information by a provider of an electronic communications service | ||
or a provider of a remote computing service under a warrant, order, | ||
or other legal process on or after the effective date of this Act. | ||
SECTION 9. This Act takes effect September 1, 2021. |