Senate Bill S4731

2013-2014 Legislative Session

Relates to issuing warrants for mobile tracking devices

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to codes
Apr 19, 2013	referred to codes

2013-S4731 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §690.05, add §690.60, CP L

2013-S4731 (ACTIVE) - Summary

Relates to issuing warrants for mobile tracking devices.

2013-S4731 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4731

TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to issuing warrants for mobile tracking devices

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Criminal Law and Procedure.

This measure would amend Article 690 of the Criminal Procedure Law to
add express authority for a court to issue a warrant that authorizes
placement of a mobile tracking device on a suspect's property or
person.

In People v Weaver (12 NY3d 433 (2009)), the New York State Court of
Appeals determined that the State Constitution requires law
enforcement to first secure a warrant in order to place a global
positioning satellite ("GPS") tracking device on a suspect's
automobile. Subsequently, the United States Supreme Court similarly
held that affixing a GPS tracking device on a vehicle and using it to
acquire detailed data about the movements of the vehicle constitutes a
search or seizure within the meaning of the Fourth Amendment of the
United States Constitution (United States v Jones, 132 Sup. Ct.
945(2011). Although the Supreme Court did not examine whether a
warrant is required in all cases, the definitive consequence of both
Weaver and Jones is that New York courts must have a procedure to

consider warrant applications for mobile tracking devices.

Procedures for issuing search warrants in New York are codified in
Article 690 of the Criminal Procedure Law, Mobile tracking devices,
however, do not come within the scope of a search warrant as currently
defined. Article 690 provides that a search warrant is a court order
directing a police officer to conduct "a search of designated
premises, or of a designated vehicle, or of a designated person, for
the purpose of seizing designated property or kinds of property, and
to deliver any property so obtained to the court which issued the
warrant" (CPL 690.05(2)(a)). Mobile tracking devices are not used to
seize identified property, but only to track a suspect's activity. Nor
does a mobile tracking device fit within the parameters of any other
form of warrant authorized under the Criminal Procedure Law. An
eavesdropping warrant involves "wiretapping" and is directed to the
"mechanical overhearing of conversation" or the "intercepting of or
accessing of an electronic communication" (CPL 700.05(1)). A video
surveillance warrant involves the "intentional visual observation by
law enforcement of a person by means of a television camera or other
electronic device that is part of a television transmitting apparatus
..." (CPL 700.05(9)). Finally, pen registers and trap and trace
devices involve identifying telephone numbers that are used to
initiate or receive telephone communications (CPL 705.00(1),(2)).

Although a mobile tracking device has characteristics of several types
of devices currently requiring a warrant under the Criminal Procedure
Law, on the advice of our Advisory Committee, we recommend that
warrants for these devices be provided as a new class of search
warrant. Accordingly, this measure adds a new paragraph to section
690.05 that defines a search warrant to include "the installation,
maintenance, and monitoring of a mobile tracking device." The measure


also adds a new section 690.60 to the Criminal Procedure Law setting
forth the procedures a court must follow in issuing a mobile tracking
device warrant.

This measure would have no fiscal impact on the State. It would take
effect immediately.

Legislative History:

None. New proposal.

2013-S4731 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4731

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 19, 2013
                               ___________

Introduced by Sen. GOLDEN -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Codes

AN ACT to amend the criminal  procedure  law,  in  relation  to  issuing
  warrants for mobile tracking devices

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph (b) of subdivision 2 of  section  690.05  of  the
criminal  procedure  law, as amended by chapter 504 of the laws of 1991,
is amended to read as follows:
  (b) a search of a designated premises for the purpose of searching for
and arresting a person who is the subject of: (i) a  warrant  of  arrest
issued  pursuant  to  this  chapter,  a superior court warrant of arrest
issued pursuant to this chapter, or a bench warrant for a felony  issued
pursuant  to this chapter, where the designated premises is the dwelling
of a third party who is not the subject of the arrest warrant; or
  (ii) a warrant of arrest issued by any other state  or  federal  court
for  an  offense  which would constitute a felony under the laws of this
state, where the designated premises is the dwelling of  a  third  party
who is not the subject of the arrest warrant; OR
  (C) THE INSTALLATION, MAINTENANCE, AND MONITORING OF A MOBILE TRACKING
DEVICE IN ACCORDANCE WITH SECTION 690.60.
  S  2.  The  criminal  procedure law is amended by adding a new section
690.60 to read as follows:
S 690.60 MOBILE TRACKING DEVICES.
  1. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS HAVE  THE
FOLLOWING MEANINGS:
  (A)  "MOBILE TRACKING DEVICE" MEANS AN ELECTRONIC OR MECHANICAL DEVICE
AFFIXED TO A PERSON OR OBJECT, INCLUDING A VEHICLE,  WHICH  PERMITS  THE
TRACKING OF THE MOVEMENT OF THAT PERSON OR OBJECT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09838-01-3

S. 4731                             2

  (B)  "USE OF A MOBILE TRACKING DEVICE" MEANS THE INSTALLATION, MAINTE-
NANCE, AND MONITORING OF A MOBILE TRACKING DEVICE.
  2.  APPLICATION  FOR  A MOBILE TRACKING DEVICE WARRANT. AN APPLICATION
FOR A WARRANT TO USE A MOBILE TRACKING DEVICE SHALL BE IN WRITING AND BE
MADE TO A LOCAL CRIMINAL COURT. THE APPLICATION SHALL CONTAIN:
  (A) THE NAME OF THE COURT AND THE NAME AND TITLE OF THE APPLICANT;
  (B) THE IDENTITY, IF KNOWN, OF THE  PERSON  OR  PERSONS  WHO  ARE  THE
SUBJECT  OF THE INVESTIGATION IN WHICH USE OF THE MOBILE TRACKING DEVICE
IS SOUGHT;
  (C) A FULL AND COMPLETE  STATEMENT  OF  THE  FACTS  AND  CIRCUMSTANCES
RELIED  UPON  BY  THE  APPLICANT,  TO  JUSTIFY  HIS OR HER BELIEF THAT A
WARRANT TO USE A MOBILE TRACKING DEVICE SHOULD BE  ISSUED,  INCLUDING  A
STATEMENT OF FACTS ESTABLISHING PROBABLE CAUSE TO BELIEVE THAT A PARTIC-
ULAR CRIME HAS BEEN, IS BEING, OR IS ABOUT TO BE COMMITTED, AND PROBABLE
CAUSE  TO  BELIEVE THAT A MOBILE TRACKING DEVICE WILL RESULT IN EVIDENCE
TENDING TO PROVE COMMISSION OF THE DESIGNATED CRIME OR  THE  WHEREABOUTS
OF  THE  PERSON  WHO IS THE SUBJECT OF THE INVESTIGATION IN WHICH USE OF
THE MOBILE TRACKING DEVICE IS SOUGHT AND AS TO WHOM  PROBABLE  CAUSE  TO
BELIEVE SUCH PERSON HAS COMMITTED THE CRIME EXISTS;
  (D) A STATEMENT OF THE IDENTITY AND CURRENT LOCATION, IF KNOWN, OF THE
PERSON  OR  OBJECT  TO  WHICH A MOBILE TRACKING DEVICE WILL BE ATTACHED,
PLACED, OR OTHERWISE INSTALLED; AND
  (E) A STATEMENT OF THE PERIOD OF TIME FOR WHICH THE USE  OF  A  MOBILE
TRACKING DEVICE IS REQUIRED TO BE MAINTAINED.
  3.  MOBILE TRACKING DEVICE WARRANT; FORM AND CONTENT. UPON AN APPLICA-
TION MADE UNDER SUBDIVISION TWO OF THIS SECTION, THE COURT, UPON A FIND-
ING THAT PROBABLE CAUSE EXISTS TO SUPPORT ISSUING A WARRANT, SHALL ENTER
AN EX PARTE ORDER AUTHORIZING THE USE OF A MOBILE TRACKING  DEVICE.  THE
ORDER SHALL SPECIFY:
  (A)  THE NAME OF THE APPLICANT, DATE OF ISSUANCE, AND THE SUBSCRIPTION
AND TITLE OF THE ISSUING JUDGE;
  (B) THE IDENTITY, IF KNOWN, OF THE PERSON WHO IS THE  SUBJECT  OF  THE
INVESTIGATION;
  (C) THE IDENTITY OF THE PERSON OR A DESCRIPTION OF THE OBJECT TO WHICH
THE  MOBILE  TRACKING  DEVICE  IS  TO  BE ATTACHED, PLACED, OR OTHERWISE
INSTALLED, IF INSTALLATION IS NECESSARY;
  (D) THE NUMBER OF MOBILE TRACKING DEVICES TO BE USED AND THE GEOGRAPH-
ICAL LOCATION WHERE THE DEVICES ARE TO BE USED, IF  AND  TO  THE  EXTENT
SUCH LOCATIONS CAN BE SPECIFIED;
  (E)  THE  PERIOD  OF  TIME  DURING  WHICH THE USE OF A MOBILE TRACKING
DEVICE IS AUTHORIZED, WHICH SHALL NOT EXCEED THE TIME PERIOD PROVIDED IN
SUBDIVISION FOUR OF THIS SECTION;
  (F) WHETHER AUTHORIZATION TO ENTER UPON A PRIVATE PLACE OR PREMISE FOR
THE PLACEMENT, REMOVAL OR  PERMANENT  INACTIVATION  OF  SUCH  DEVICE  IS
SOUGHT;
  (G)  WHETHER PERMISSION IS GRANTED TO RE-ACCESS THE DEVICE FOR MAINTE-
NANCE DURING THE AUTHORIZATION PERIOD; AND
  (H) THE IDENTITY OF THE LAW ENFORCEMENT AGENCY AUTHORIZED TO  USE  THE
MOBILE TRACKING DEVICE.
  4. MOBILE TRACKING DEVICE WARRANTS; TIME PERIOD AND EXTENSIONS.
  (A)  A  WARRANT ISSUED UNDER THIS SECTION SHALL AUTHORIZE THE USE OF A
MOBILE TRACKING DEVICE FOR A PERIOD NOT TO EXCEED  FORTY-FIVE  DAYS,  OR
THE  PERIOD NECESSARY TO ACHIEVE THE OBJECTIVE OF THE WARRANT, WHICHEVER
IS LESS.
  (B) EXTENSIONS OF THE WARRANT MAY BE GRANTED ONLY  UPON  REAPPLICATION
ESTABLISHING  PROBABLE  CAUSE  TO  JUSTIFY THE CONTINUED USE OF A MOBILE

S. 4731                             3

TRACKING DEVICE. THIS PERIOD OF THE EXTENSION SHALL  NOT  EXCEED  THIRTY
DAYS.
  5. EXECUTION OF MOBILE TRACKING DEVICE WARRANT; TO WHOM ADDRESSED.
  (A)  A  WARRANT  TO  USE A MOBILE TRACKING DEVICE ISSUED BY A DISTRICT
COURT, THE NEW YORK CITY CRIMINAL  COURT,  OR  A  SUPERIOR  COURT  JUDGE
SITTING  AS A LOCAL CRIMINAL COURT MAY BE EXECUTED PURSUANT TO ITS TERMS
ANYWHERE IN THE STATE, AND IF ISSUED BY A TOWN, VILLAGE OR CITY COURT IT
MAY BE EXECUTED PURSUANT TO ITS TERMS ONLY IN THE COUNTY OF ISSUANCE  OR
AN  ADJOINING  COUNTY;  PROVIDED,  HOWEVER, THAT AFTER A MOBILE TRACKING
DEVICE IS ATTACHED IN ACCORDANCE WITH THE TERMS OF THIS SUBDIVISION,  IT
MAY BE MONITORED ANYWHERE IN THE STATE.
  (B)  A  WARRANT TO USE A MOBILE TRACKING DEVICE MUST BE ADDRESSED TO A
POLICE OFFICER WHOSE GEOGRAPHICAL AREA  OF  EMPLOYMENT  EMBRACES  OR  IS
EMBRACED  OR  PARTIALLY EMBRACED BY THE COUNTY OF ISSUANCE OR THE COUNTY
WHERE THE TRACKING DEVICE IS TO BE INSTALLED. THE WARRANT  NEED  NOT  BE
ADDRESSED  TO  A  SPECIFIC  POLICE  OFFICER  BUT MAY BE ADDRESSED TO ANY
POLICE OFFICER OF A DESIGNATED CLASSIFICATION, OR TO ANY POLICE  OFFICER
OF  ANY CLASSIFICATION EMPLOYED OR HAVING GENERAL JURISDICTION TO ACT AS
A POLICE OFFICER IN THE COUNTY.
  (C) A WARRANT TO USE A MOBILE TRACKING DEVICE SHALL  BE  EXECUTED  NOT
MORE THAN TEN DAYS AFTER THE DATE OF ISSUANCE.
  6.  MOBILE  TRACKING DEVICE WARRANTS; NOTICE. WITHIN NINETY DAYS AFTER
THE USE OF THE MOBILE TRACKING DEVICE HAS ENDED, THE OFFICER EXECUTING A
WARRANT FOR USE OF A MOBILE TRACKING DEVICE SHALL SERVE A  COPY  OF  THE
WARRANT  ON  THE  PERSON  WHO  IS  THE  SUBJECT  OF THE INVESTIGATION AS
PROVIDED IN PARAGRAPH (B) OF SUBDIVISION TWO  OF  THIS  SECTION  OR,  IF
UNKNOWN,  THE  OWNER  OF  THE PROPERTY THAT WAS TRACKED. ON A SHOWING OF
GOOD CAUSE TO THE ISSUING JUDGE OR JUSTICE, THE SERVICE  OF  THE  NOTICE
MAY  BE  POSTPONED  BY  ORDER  OF SUCH JUDGE OR JUSTICE FOR A REASONABLE
PERIOD OF TIME. RENEWALS OF AN ORDER OF POSTPONEMENT MAY BE OBTAINED  ON
A NEW SHOWING OF GOOD CAUSE.
  7.  MOBILE  TRACKING  DEVICE  WARRANTS;  REMOVAL.  UPON TERMINATION OF
AUTHORIZATION IN THE WARRANT, THE  MONITORING  OF  THE  MOBILE  TRACKING
DEVICE  MUST  CEASE  AND  AS  SOON  AS PRACTICABLE THEREAFTER ANY MOBILE
TRACKING DEVICE INSTALLED FOR SUCH PURPOSE EITHER  MUST  BE  REMOVED  OR
MUST  BE  PERMANENTLY  INACTIVATED  BY ANY MEANS APPROVED BY THE ISSUING
JUDGE OR JUSTICE.
  8. MOBILE TRACKING DEVICE  WARRANTS;  EXIGENT  CIRCUMSTANCES.  UPON  A
SHOWING  IN  THE  APPLICATION  THAT EXIGENT CIRCUMSTANCES EXISTED AT THE
TIME OF ACTUAL INSTALLATION THAT PRECLUDED OBTAINING A  WARRANT  THROUGH
APPLICATION PRIOR TO INSTALLATION, THE COURT MAY AUTHORIZE THE CONTINUED
USE  OF  THE  MOBILE  TRACKING DEVICE, EFFECTIVE FROM THE DATE OF ACTUAL
INSTALLATION, FOR A PERIOD NOT TO EXCEED  THIRTY  DAYS.  AN  APPLICATION
PURSUANT  TO  THIS  SUBDIVISION  SHALL  BE MADE WITHIN FORTY-EIGHT HOURS
AFTER ACTUAL INSTALLATION.
  S 3. This act shall take effect immediately.

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Senate Bill S4731

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Archive: Last Bill Status - In Senate Committee Codes Committee

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2013-S4731 (ACTIVE) - Details

2013-S4731 (ACTIVE) - Summary

2013-S4731 (ACTIVE) - Sponsor Memo

2013-S4731 (ACTIVE) - Bill Text download pdf

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Sponsored By

Martin J. Golden

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

2013-S4731 (ACTIVE) - Details

2013-S4731 (ACTIVE) - Summary

2013-S4731 (ACTIVE) - Sponsor Memo

2013-S4731 (ACTIVE) - Bill Text download pdf

Comments