By: Burton, et al. S.B. No. 1864
(Canales, White of Tyler, Elkins)
A BILL TO BE ENTITLED
AN ACT
relating to requiring a peace officer to obtain a warrant to search
a cellular telephone or other wireless communications device.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 18.02(a), Code of Criminal Procedure, is
amended to read as follows:
(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; [or]
(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.
SECTION 2. Chapter 18, Code of Criminal Procedure, is
amended by adding Article 18.0215 to read as follows:
Art. 18.0215. ACCESS TO CELLULAR TELEPHONE OR OTHER
WIRELESS COMMUNICATIONS DEVICE. (a) A peace officer may not
search a person's cellular telephone or other wireless
communications device, pursuant to a lawful arrest of the person or
otherwise, without obtaining a warrant under this article.
(b) A warrant under this article may be issued only by a
district judge in the same judicial district as the site of:
(1) the law enforcement agency that employs the peace
officer, if the cellular telephone or other wireless communications
device is in the officer's possession; or
(2) the likely location of the telephone or device.
(c) A district judge may issue a warrant under this article
only on the application of a peace officer. An application must be
written and signed and sworn to or affirmed before the judge. The
application must:
(1) state the name, department, agency, and address of
the applicant;
(2) identify the cellular telephone or other wireless
communications device to be searched;
(3) state the name of the owner or possessor of the
telephone or device to be searched;
(4) state the judicial district in which:
(A) the law enforcement agency that employs the
peace officer is located, if the telephone or device is in the
officer's possession; or
(B) the telephone or device is likely to be
located; and
(5) state the facts and circumstances that provide the
applicant with probable cause to believe that:
(A) criminal activity has been, is, or will be
committed; and
(B) searching the telephone or device is likely
to produce evidence in the investigation of the criminal activity
described in Paragraph (A).
(d) Notwithstanding any other law, a peace officer may
search a cellular telephone or other wireless communications device
without a warrant if:
(1) the owner or possessor of the telephone or device
consents to the search;
(2) the telephone or device is reported stolen by the
owner or possessor; or
(3) the officer reasonably believes that:
(A) the telephone or device is in the possession
of a fugitive from justice for whom an arrest warrant has been
issued for committing a felony offense; or
(B) there exists an immediate life-threatening
situation, as defined by Section 1, Article 18.20.
(e) A peace officer must apply for a warrant to search a
cellular telephone or other wireless communications device as soon
as practicable after a search is conducted under Subsection
(d)(3)(A) or (B). If the district judge finds that the applicable
situation under Subsection (d)(3)(A) or (B) did not occur and
declines to issue the warrant, any evidence obtained is not
admissible in a criminal action.
SECTION 3. This Act takes effect September 1, 2015.