Texas 2021 - 87th Regular

Texas Senate Bill SB1867 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	87R5882 JCG-D
2	2	By: West S.B. No. 1867
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the issuance and execution of certain search warrants
8	8	in a criminal investigation and the admissibility of evidence
9	9	obtained through certain searches.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Article 18.01(b), Code of Criminal Procedure, is
12	12	amended to read as follows:
13	13	(b) No search warrant shall issue for any purpose in this
14	14	state unless sufficient facts are first presented to satisfy the
15	15	issuing magistrate that probable cause does in fact exist for its
16	16	issuance. A sworn affidavit setting forth substantial facts
17	17	establishing probable cause shall be filed in every instance in
18	18	which a search warrant is requested. Except as otherwise provided
19	19	by this code [provided by Article 18.011], the affidavit becomes
20	20	public information when the search warrant for which the affidavit
21	21	was presented is executed, and the magistrate's clerk shall make a
22	22	copy of the affidavit available for public inspection in the
23	23	clerk's office during normal business hours.
24	24	SECTION 2. Article 18.02, Code of Criminal Procedure, is
25	25	amended to read as follows:
26	26	Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant may
27	27	be issued to search for and seize:
28	28	(1) property acquired by theft or in any other manner
29	29	which makes its acquisition a penal offense;
30	30	(2) property specially designed, made, or adapted for
31	31	or commonly used in the commission of an offense;
32	32	(3) arms and munitions kept or prepared for the
33	33	purposes of insurrection or riot;
34	34	(4) weapons prohibited by the Penal Code;
35	35	(5) gambling devices or equipment, altered gambling
36	36	equipment, or gambling paraphernalia;
37	37	(6) obscene materials kept or prepared for commercial
38	38	distribution or exhibition, subject to the additional rules set
39	39	forth by law;
40	40	(7) a drug, controlled substance, immediate
41	41	precursor, chemical precursor, or other controlled substance
42	42	property, including an apparatus or paraphernalia kept, prepared,
43	43	or manufactured in violation of the laws of this state;
44	44	(8) any property the possession of which is prohibited
45	45	by law;
46	46	(9) implements or instruments used in the commission
47	47	of a crime;
48	48	(10) property or items, except the personal writings
49	49	by the accused, constituting evidence of an offense or constituting
50	50	evidence tending to show that a particular person committed an
51	51	offense;
52	52	(11) persons;
53	53	(12) contraband subject to forfeiture under Chapter 59
54	54	[of this code];
55	55	(13) electronic customer data held in electronic
56	56	storage, including the contents of and records and other
57	57	information related to a wire communication or electronic
58	58	communication held in electronic storage; [or]
59	59	(14) a cellular telephone or other wireless
60	60	communications device, subject to Article 18.0215; or
61	61	(15) location information held in electronic storage,
62	62	in accordance with Subchapter G-1, Chapter 18B.
63	63	(b) For purposes of this article [Subsection (a)(13)]:
64	64	(1) "Electronic communication" and "wire
65	65	communication" have the meanings assigned by Article 18A.001.
66	66	(2) "Electronic customer data," [data" and]
67	67	"electronic storage," and "location information" [storage"] have
68	68	the meanings assigned by Article 18B.001.
69	69	SECTION 3. Article 18.06(a), Code of Criminal Procedure, is
70	70	amended to read as follows:
71	71	(a) A peace officer to whom a search warrant is delivered
72	72	shall execute the warrant without delay and shall immediately
73	73	[forthwith] return the warrant to the proper magistrate. [A search
74	74	warrant issued under Article 18B.354 must be executed in the manner
75	75	provided by Article 18B.355 not later than the 11th day after the
76	76	date of issuance. In all other cases, a search warrant must be
77	77	executed within three days from the time of its issuance. A warrant
78	78	issued under this chapter, Chapter 18A, or Chapter 18B shall be
79	79	executed within a shorter period if so directed in the warrant by
80	80	the magistrate.]
81	81	SECTION 4. Article 18.07(a), Code of Criminal Procedure, is
82	82	amended to read as follows:
83	83	(a) Unless the magistrate directs in the warrant a shorter
84	84	period for the execution of any search warrant issued under this
85	85	chapter, Chapter 18A, or Chapter 18B, the [The] period allowed for
86	86	the execution of the [a search] warrant, exclusive of the day of its
87	87	issuance and of the day of its execution, is:
88	88	(1) 15 whole days if the warrant is issued solely to
89	89	search for and seize specimens from a specific person for DNA
90	90	analysis and comparison, including blood and saliva samples;
91	91	(2) 10 whole days if the warrant is issued under
92	92	Article 18B.354 or Subchapter G-1, Chapter 18B; or
93	93	(3) three whole days if the warrant is issued for a
94	94	purpose other than that described by Subdivision (1) or (2).
95	95	SECTION 5. Article 18B.001, Code of Criminal Procedure, is
96	96	amended by amending Subdivisions (7) and (8) and adding
97	97	Subdivisions (9-a) and (9-b) to read as follows:
98	98	(7) "Electronic customer data" means data or records,
99	99	other than location information, that:
100	100	(A) are in the possession, care, custody, or
101	101	control of a provider of an electronic communications service or
102	102	provider of a remote computing service; and
103	103	(B) contain:
104	104	(i) information revealing the identity of
105	105	customers of the applicable service;
106	106	(ii) information about a customer's use of
107	107	the applicable service;
108	108	(iii) information that identifies the
109	109	recipient or destination of a wire or electronic communication sent
110	110	to or by a customer;
111	111	(iv) the content of a wire or electronic
112	112	communication sent to or by a customer; and
113	113	(v) any data stored with the applicable
114	114	service provider by or on behalf of a customer.
115	115	(8) "Electronic storage" means storage of electronic
116	116	customer data or location information in a computer, computer
117	117	network, or computer system, regardless of whether the data is
118	118	subject to recall, further manipulation, deletion, or
119	119	transmission. The term includes storage of a wire or electronic
120	120	communication by an electronic communications service or a remote
121	121	computing service.
122	122	(9-a) "Immediate life-threatening situation" has the
123	123	meaning assigned by Article 18A.201.
124	124	(9-b) "Location information" means information, other
125	125	than electronic customer data, that reveals the location of a
126	126	wireless communications device obtained by any of the following
127	127	methods:
128	128	(A) using global positioning system (GPS)
129	129	location-based measurements, including the querying of the target
130	130	device's GPS service and the returned coordinates;
131	131	(B) comparing a record of the target device's
132	132	Internet Protocol (IP) address to a list of known IP addresses and
133	133	approximate known locations;
134	134	(C) querying the target device's operating
135	135	system for the identity of nearby cellular towers and uploading the
136	136	information to a server where the cellular tower identification may
137	137	be compared to a list of known cellular tower locations;
138	138	(D) querying the target device's operating
139	139	system for the identifier (such as SSID or BSSID) associated with a
140	140	nearby Wi-Fi access point and uploading that information to a
141	141	server where the access point's identifier may be compared to a
142	142	database or list of known identifiers of Wi-Fi access points in
143	143	known locations;
144	144	(E) using records derived from the device's
145	145	connections to radio antennas through which a provider of an
146	146	electronic communications service or provider of a remote computing
147	147	service provides wireless service to that device;
148	148	(F) using enhanced 9-1-1 location-based
149	149	measurements; or
150	150	(G) any combination of methods described in this
151	151	subdivision or another similar method used to determine the
152	152	location of a wireless communications device.
153	153	SECTION 6. Chapter 18B, Code of Criminal Procedure, is
154	154	amended by adding Subchapter G-1 to read as follows:
155	155	SUBCHAPTER G-1. PROSPECTIVE LOCATION INFORMATION
156	156	Art. 18B.321. APPLICABILITY. (a) This subchapter applies
157	157	only to a warrant described by Article 18B.322 for the required
158	158	disclosure of location information that is:
159	159	(1) held in electronic storage in the possession,
160	160	care, custody, or control of a provider of an electronic
161	161	communications service or a provider of a remote computing service;
162	162	and
163	163	(2) created after the issuance of the warrant.
164	164	(b) Articles 18B.355, 18B.356, and 18B.357 apply to a
165	165	warrant issued under this subchapter in the same manner as those
166	166	articles apply to a warrant issued under Article 18B.354.
167	167	Art. 18B.322. WARRANT REQUIRED FOR CERTAIN LOCATION
168	168	INFORMATION HELD IN ELECTRONIC STORAGE. (a) A warrant is required
169	169	to obtain the disclosure of location information described by
170	170	Article 18B.321(a) by a provider of an electronic communications
171	171	service or a provider of a remote computing service.
172	172	(b) Only a prosecutor or a prosecutor's assistant with
173	173	jurisdiction in a county within a judicial district described by
174	174	Article 18B.052(4) may file an application for a warrant under this
175	175	subchapter. The application must be supported by the sworn
176	176	affidavit required by Article 18.01(b).
177	177	(c) The application must be filed with a district judge in
178	178	the applicable judicial district on:
179	179	(1) the prosecutor's or assistant's own motion; or
180	180	(2) the request of an authorized peace officer of a
181	181	designated law enforcement office or agency or an authorized peace
182	182	officer commissioned by the department.
183	183	Art. 18B.323. ISSUANCE OF WARRANT. (a) On the filing of an
184	184	application for a warrant under this subchapter, a district judge
185	185	may issue the warrant to obtain the disclosure of location
186	186	information by a provider described by Article 18B.355(b),
187	187	regardless of whether the location information is held at a
188	188	location in this state or another state.
189	189	(b) A warrant may not be issued under this article unless
190	190	the sworn affidavit required by Article 18.01(b) provides
191	191	sufficient and substantial facts to establish probable cause that:
192	192	(1) the disclosure of the location information sought
193	193	will:
194	194	(A) produce evidence of an offense under
195	195	investigation; or
196	196	(B) result in the apprehension of a fugitive from
197	197	justice; and
198	198	(2) the location information sought is held in
199	199	electronic storage in the possession, care, custody, or control of
200	200	the service provider on which the warrant is served.
201	201	(c) Only the location information described in the sworn
202	202	affidavit required by Article 18.01(b) may be seized under the
203	203	warrant.
204	204	Art. 18B.324. DURATION; SEALING. (a) A warrant issued
205	205	under this subchapter is valid for a period not to exceed 60 days
206	206	after the date the warrant is issued, unless the prosecutor or
207	207	prosecutor's assistant applies for and obtains an extension of that
208	208	period from the court before the warrant expires.
209	209	(b) Each extension granted under Subsection (a) may not
210	210	exceed a period of 60 days.
211	211	(c) A district court that issues a warrant under this
212	212	subchapter shall order the warrant and the application for the
213	213	warrant sealed and may not unseal the warrant and application until
214	214	after the warrant expires.
215	215	Art. 18B.325. EMERGENCY DISCLOSURE. (a) An authorized
216	216	peace officer of a designated law enforcement office or agency or an
217	217	authorized peace officer commissioned by the department may,
218	218	without a warrant, require the disclosure of location information
219	219	described by Article 18B.321(a) if:
220	220	(1) the officer reasonably believes an immediate
221	221	life-threatening situation exists that:
222	222	(A) is within the officer's territorial
223	223	jurisdiction; and
224	224	(B) requires the disclosure of the location
225	225	information before a warrant can, with due diligence, be obtained
226	226	under this subchapter; and
227	227	(2) there are sufficient grounds under this subchapter
228	228	on which to obtain a warrant requiring the disclosure of the
229	229	location information.
230	230	(b) Not later than 48 hours after requiring disclosure of
231	231	location information without a warrant under Subsection (a), the
232	232	authorized peace officer shall obtain a warrant for that purpose in
233	233	accordance with this subchapter.
234	234	Art. 18B.326. CERTAIN EVIDENCE NOT ADMISSIBLE. The state
235	235	may not use as evidence in a criminal proceeding any information
236	236	obtained through the required disclosure of location information
237	237	described by Article 18B.321(a), unless:
238	238	(1) a warrant is obtained before requiring the
239	239	disclosure; or
240	240	(2) if the disclosure is required under Article
241	241	18B.325 before a warrant can be obtained, the authorized peace
242	242	officer who required the disclosure obtains a warrant as required
243	243	by Subsection (b) of that article.
244	244	SECTION 7. Article 18B.151(a), Code of Criminal Procedure,
245	245	is repealed.
246	246	SECTION 8. Chapter 18B, Code of Criminal Procedure, as
247	247	amended by this Act, applies to the disclosure of certain
248	248	information by a provider of an electronic communications service
249	249	or a provider of a remote computing service under a warrant, order,
250	250	or other legal process on or after the effective date of this Act.
251	251	SECTION 9. This Act takes effect September 1, 2021.