87R2864 JCG-D

By: Wilson H.B. No. 1654

A BILL TO BE ENTITLED

AN ACT

relating to certain evidence obtained in a criminal investigation, including the issuance and execution of certain search warrants, the required disclosure of certain information in emergency situations, and the admissibility of certain evidence obtained with or without warrants.

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 [provided by Article 18.011], the affidavit becomes 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 [of this code];

(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; [or]

(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 [Subsection (a)(13)]:

(1) "Electronic communication" and "wire communication" have the meanings assigned by Article 18A.001.

(2) "Electronic customer data," [data" and] "electronic storage," and "location information" [storage"] have 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 [forthwith] return the warrant to the proper magistrate. Except as otherwise provided by this code [A search warrant issued under Article 18B.354 must be executed in the manner provided by Article 18B.355 not later than the 11th day after the date of issuance. In all other cases], a search warrant must be executed within three days from the time of its issuance and in the manner provided by this article. A warrant issued under this chapter, Chapter 18A, or Chapter 18B shall be executed within a shorter period if so directed in the warrant by the magistrate.

SECTION 4. Article 18B.001, Code of Criminal Procedure, is amended by amending Subdivisions (7) and (8) and adding Subdivision (9-a) 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) "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 5. Chapter 18B, Code of Criminal Procedure, is amended by adding Subchapter G-1 to read as follows:

SUBCHAPTER G-1. LOCATION INFORMATION

Art. 18B.321. APPLICABILITY OF OTHER LAW. 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 that is 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.

(b) Only a prosecutor or assistant prosecutor 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 in the county.

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 produce evidence of an offense under investigation; 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) For a warrant issued under this subchapter to obtain the disclosure of location information created after the issuance of the warrant:

(1) the warrant is valid for a period not to exceed 60 days;

(2) the issuing court shall order the warrant and the application for the warrant sealed while the warrant is valid and shall unseal the documents after the warrant expires; and

(3) before the warrant expires, the prosecutor or assistant prosecutor who filed the application for the warrant may request, and the issuing court may grant, one or more 60-day extensions of the period of the warrant, if the prosecutor or assistant establishes a reasonable ground for each extension.

(b) For a warrant issued under this subchapter to obtain the disclosure of location information created before the issuance of the warrant:

(1) the prosecutor or assistant prosecutor who filed the application for the warrant may request, and the issuing court may order, that the warrant and application be sealed, if the prosecutor or assistant establishes a reasonable ground for sealing the documents;

(2) an order to seal a warrant and application under this subsection expires on the 31st day after the date on which the warrant is executed; and

(3) before the order sealing the documents expires, the prosecutor or assistant may request, and the issuing court may grant, one or more 30-day extensions of the period of the order, if the prosecutor or assistant establishes a reasonable ground for each extension.

Art. 18B.325. REQUIRED DISCLOSURE OF LOCATION INFORMATION IN EMERGENCY SITUATION. (a) In this article, "immediate life-threatening situation" has the meaning assigned by Article 18A.201.

(b) In each county, the prosecutor may designate in writing one or more peace officers in the county, other than a commissioned officer of the department, who are permitted under this article to require without a warrant the prompt disclosure of location information described by Article 18B.322(a) by a provider of an electronic communications service or a provider of a remote computing service.

(c) A prosecutor, assistant prosecutor, peace officer designated under Subsection (b), or commissioned officer designated under Article 18A.301(c) to use interception devices for the department may require the prompt disclosure of location information without a warrant as described by Subsection (b) if the person seeking the disclosure reasonably believes:

(1) an immediate life-threatening situation exists that:

(A) is within the territorial jurisdiction of the person seeking the disclosure or of a peace officer that the person is assisting; and

(B) necessitates the required disclosure of location information before a warrant can, with due diligence, be obtained under this subchapter; and

(2) there are sufficient and substantial facts to establish probable cause for obtaining a warrant for the disclosure of the information.

(d) After requiring the disclosure of location information under Subsection (c), the prosecutor, assistant prosecutor, peace officer, or commissioned officer of the department who required the disclosure shall:

(1) not later than the 10th day after the date the disclosure was required, make a report regarding the disclosure;

(2) file the report with the following office or agency as appropriate:

(A) the office of the prosecutor or assistant prosecutor who, as applicable:

(i) required the disclosure; or

(ii) designated the peace officer who required the disclosure; or

(B) the department, if a commissioned officer of the department required the disclosure; and

(3) on request of a court, make the report available to the court.

(e) The report must include:

(1) a detailed description of the exigent circumstances and the grounds described by Subsection (c) that justified requiring the disclosure without first pursuing a warrant under this subchapter, including the sufficient and substantial facts that provided probable cause; and

(2) the names, titles, and office or agency of each person involved in requiring the disclosure under this article.

Art. 18B.326. ADMISSIBILITY OF EVIDENCE OBTAINED. The state may not use as evidence in a criminal proceeding any information derived from the disclosure of location information as described by this subchapter if the information was obtained in violation of this subchapter.

SECTION 6. The change in law made by this Act applies only to a warrant issued on or after the effective date of this Act. A warrant issued before the effective date of this Act is governed by the law in effect on the date the warrant was issued, and the former law is continued in effect for that purpose.

SECTION 7. This Act takes effect September 1, 2021.