Florida Senate - 2013                              CS for SB 846
       
       
       
       By the Committee on Criminal Justice; and Senators Brandes,
       Negron, and Soto
       
       
       
       591-01873-13                                           2013846c1
    1                        A bill to be entitled                      
    2         An act relating to search and seizure of a portable
    3         electronic device; providing legislative findings and
    4         intent; defining the term “portable electronic
    5         device”; providing that information contained in a
    6         portable electronic device is not subject to a search
    7         by a law enforcement officer incident to an arrest
    8         except pursuant to a warrant issued by a duly
    9         authorized judicial officer using procedures
   10         established by law; providing exceptions; providing a
   11         remedy; prohibiting location informational tracking;
   12         providing legislative findings and intent; defining
   13         terms; prohibiting a government entity from obtaining
   14         the location information of an electronic device
   15         without a valid court order issued by a duly
   16         authorized judicial officer; providing that a court
   17         order may not be issued for the location of an
   18         electronic device for a period of time longer than is
   19         necessary to achieve the objective of the court order
   20         authorization; providing time periods for the validity
   21         of a court order; providing criteria by which to
   22         extend a court order for location information;
   23         providing exceptions to the requirement to obtain a
   24         court order for location information; providing a
   25         remedy; providing an effective date.
   26  
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Portable electronic device; prohibited search
   30  and seizure.—
   31         (1) FINDINGS.—The Legislature finds that:
   32         (a) The number of residents of this state using and
   33  carrying portable electronic devices is growing at a rapidly
   34  increasing rate. These devices can store, and do encourage the
   35  storing of, an almost limitless amount of personal and private
   36  information. Commonly linked to the Internet, these devices are
   37  used to access personal and business information and databases
   38  in computers and servers that are located anywhere in the world.
   39  A user of a portable electronic device has a reasonable and
   40  justifiable expectation of privacy in the information that these
   41  devices contain and can access through the Internet.
   42         (b) The right of the people to be secure in their persons,
   43  houses, papers, and effects against unreasonable searches and
   44  seizures, and against the unreasonable interception of private
   45  communications by any means, shall not be violated.
   46         (c) No warrant shall be issued except upon probable cause,
   47  supported by affidavit, particularly describing the place or
   48  places to be searched, the person or persons, thing or things to
   49  be seized, the communication to be intercepted, and the nature
   50  of evidence to be obtained.
   51         (d) The intrusion on the privacy of information and the
   52  freedom of communication of any person who is arrested is of
   53  such enormity that the officer who makes the arrest must obtain
   54  a warrant to search the information contained in, or accessed
   55  through, the arrested person’s portable electronic device, such
   56  as a cellular telephone.
   57         (2) INTENT.—It is the intent of the Legislature that this
   58  section prohibit the search of information contained in a
   59  portable electronic device, as defined in this section, by a law
   60  enforcement agency or other governmental entity incident to
   61  arrest except pursuant to a warrant issued by a duly authorized
   62  judicial officer using established procedures.
   63         (3) DEFINITION.—As used in this section, the term “portable
   64  electronic device” means an object capable of being easily
   65  transported or conveyed by a person which is capable of
   66  creating, receiving, accessing, or storing electronic data or
   67  communications and that communicates with, by any means, another
   68  entity or individual.
   69         (4) PROHIBITED ACTS.—
   70         (a) The contents and communications of a portable
   71  electronic device, including, but not limited to, data or
   72  information contained in or transmitted from the portable
   73  electronic device, are not subject to a search or seizure
   74  incident to arrest by a law enforcement agency or other
   75  governmental entity except pursuant to a warrant issued by a
   76  duly authorized judicial officer using the procedures
   77  established by law.
   78         (b) Except as provided in paragraph (a), this section does
   79  not:
   80         1. Curtail reliance by a law enforcement agency or other
   81  governmental entity on lawful exceptions to the warrant
   82  requirement;
   83         2. Apply in cases of a search conducted incident to
   84  national security; or
   85         3. Apply in cases of a search for a missing child who is
   86  less than 18 years of age.
   87         4. Apply to transponders used for the purpose of assessing
   88  or collecting toll.
   89         5.Apply whenever the government entity reasonably believes
   90  that an emergency involving immediate danger of death or serious
   91  physical injury to a person requires the search or seizure,
   92  without delay, of the contents of a portable electronic device
   93  concerning a specific person or persons and that a warrant
   94  cannot be obtained in time to prevent the identified danger, or
   95  the possessor of the portable electronic device, in good faith,
   96  believes that an emergency involves the danger of death.
   97  
   98  The government entity seeking the contents of the portable
   99  electronic device shall file with the appropriate court a
  100  written statement setting forth the facts giving rise to the
  101  emergency and the facts as to why the person or persons whose
  102  contents of a portable electronic device was sought are believed
  103  to be important in addressing the emergency, no later than 48
  104  hours after seeking disclosure. Private entities providing
  105  electronic communications services shall not be made responsible
  106  for ensuring that government entities comply with this section.
  107         (5) REMEDY.—
  108         (a) Any aggrieved person in any trial, hearing, or
  109  proceeding in or before any court, department, officer, agency,
  110  regulatory body, or other authority may move to suppress the
  111  contents of any information contained in a portable electronic
  112  device or evidence derived therefrom, on the grounds that:
  113         1. The information was unlawfully obtained;
  114         2. The search warrant under which it was obtained is
  115  insufficient on its face; or
  116         3. The information was not obtained in conformity with the
  117  search warrant.
  118  
  119  Such motion shall be made before the trial, hearing, or
  120  proceeding unless there was no opportunity to make such motion
  121  or the person was not aware of the grounds of the motion. If the
  122  motion is granted, the information or evidence derived
  123  therefrom, shall be suppressed. The judge, upon the filing of
  124  such motion by the aggrieved person, may make available to the
  125  aggrieved person or his or her counsel for inspection such
  126  portions of the information or evidence derived therefrom as the
  127  judge determines to be in the interest of justice.
  128         (b) In addition to any other right to appeal, the state
  129  shall have the right to appeal from an order granting a motion
  130  to suppress made under paragraph (a) or the denial of an
  131  application for a search warrant if the attorney shall certify
  132  to the judge or other official granting such motion or denying
  133  such application that the appeal is not taken for purposes of
  134  delay. Such appeal shall be taken within 30 days after the date
  135  the order was entered and shall be diligently prosecuted.
  136         (c) The remedies and sanctions described herein with
  137  respect to the information contained in a portable electronic
  138  device are the only judicial remedies and sanctions for
  139  violations of those sections involving such information.
  140         Section 2. Location informational tracking; prohibited
  141  search and seizure.-
  142         (1) FINDINGS.-The Legislature finds that existing law
  143  authorizes a court to issue a warrant for the search of a place
  144  and the seizure of property or things identified in the warrant
  145  when there is probable cause to believe that specified grounds
  146  exist. The Legislature also finds that existing law provides for
  147  a judicial procedure for the acquisition of stored
  148  communications in the possession of a provider of electronic
  149  communication service or a remote computing service.
  150         (2) INTENT.-It is the intent of the Legislature to prohibit
  151  a government entity from obtaining the location information of
  152  an electronic device without a valid court order issued by a
  153  duly authorized judicial officer unless certain exceptions
  154  apply, including in an emergency or when requested by the owner
  155  of the device. However, it is also the intent of the Legislature
  156  that this bill, with certain exceptions, prohibits the use of
  157  information obtained in violation of this section in a civil or
  158  administrative hearing.
  159         (3) DEFINITIONS.-As used in this section the term:
  160         (a) “Electronic communication service” means a service that
  161  provides to its users the ability to send or receive wire or
  162  electronic communications.
  163         (b) “Government entity” means a state or local agency,
  164  including, but not limited to, a law enforcement entity or any
  165  other investigative entity, agency, department, division,
  166  bureau, board, or commission, or an individual acting or
  167  purporting to act for or on behalf of a state or local agency.
  168         (c) “Location information” means information, concerning
  169  the location of an electronic device, including both the current
  170  location and any previous location of the device, that, in whole
  171  or in part, is generated, derived from, or obtained by the
  172  operation of an electronic device.
  173         (d) “Location information service” means the provision of a
  174  global positioning service or other mapping, locational, or
  175  directional information service.
  176         (e) “Owner” means the person or entity recognized by the
  177  law as having the legal title, claim, or right to an electronic
  178  device.
  179         (f)“Portable electronic device” means an object capable of
  180  being easily transported or conveyed by a person which is
  181  capable of creating, receiving, accessing, or storing electronic
  182  data or communications and that communicates with, by any means,
  183  another entity or individual.
  184         (g) “Remote computing service” means the provision of
  185  computer storage or processing services by means of an
  186  electronic communications system.
  187         (h) “User” means a person or entity that uses an electronic
  188  device.
  189         (4) PROHIBITED ACTS.-
  190         (a) A law enforcement agency or other government entity may
  191  not obtain the location information of an electronic device
  192  without a valid court order issued by a duly authorized judicial
  193  officer using the procedure set forth in this section.
  194         (b)An investigative or law enforcement officer may make
  195  application to a judge of competent jurisdiction for an order
  196  authorizing or approving the search for and seizure of the
  197  location information related to an electronic device.
  198         (c)The application must include:
  199         1.A statement of the identity of the applicant and the
  200  identity of the law enforcement agency conducting the
  201  investigation.
  202         2.A certification by the applicant that the information
  203  likely to be obtained is relevant to an ongoing criminal
  204  investigation being conducted by the investigating agency.
  205         3.A statement of the offense to which the information
  206  likely to be obtained relates.
  207         4.A statement whether it may be necessary to monitor the
  208  electronic device outside the jurisdiction of the court from
  209  which authorization is being sought.
  210         (d)If the court finds that the required certification and
  211  statements have been made in the application, the court shall
  212  enter an ex parte order authorizing the monitoring of an
  213  electronic device. Such order may authorize the monitoring of
  214  the device within the jurisdiction of the court and outside that
  215  jurisdiction but within the State of Florida.
  216         (e)A court may not require greater specificity or
  217  additional information beyond that which is required by this
  218  section as a requisite for issuing an order.
  219         (f) A court order may not be issued for the location of an
  220  electronic device pursuant to this section for a period of time
  221  longer than is necessary to achieve the objective of the
  222  authorization, and in any event no longer than 30 days,
  223  commencing on the day the order is issued, or 10 days after the
  224  location information is initially obtained whichever comes
  225  first.
  226         (g) Extensions of an order may be granted, but only upon a
  227  judge finding continuing probable cause and that the extension
  228  is necessary to achieve the objective of the authorization. Each
  229  extension granted for an order pursuant to this section shall be
  230  for no longer than the authorizing judge deems necessary to
  231  achieve the purposes for which the order was originally granted,
  232  but in any event, shall be for no longer than 30 days.
  233         (5) EXCEPTIONS.—Notwithstanding subsection (4), a
  234  government entity may obtain location information without a
  235  search warrant if disclosure of the location information is not
  236  prohibited by federal law, in any of the following
  237  circumstances:
  238         (a)Transponders used for the purpose of assessing or
  239  collecting tolls.
  240         (b) Reliance by a law enforcement agency or other
  241  governmental entity on lawful exceptions to the warrant
  242  requirement.
  243         (c)Cases of a search conducted incident to a national
  244  security event.
  245         (d) Cases of a search for a missing child who is less than
  246  18 years of age.
  247         (e) In order to respond to the user’s call for emergency
  248  services.
  249         (f) With the informed, affirmative consent of the owner or
  250  user of the electronic device concerned, provided that the owner
  251  or user may not consent to the disclosure of location
  252  information if the device is known or believed to be in the
  253  possession of, or attached to a possession of, a third party
  254  known to the owner or user, unless that third party is less than
  255  18 years of age. The informed, affirmative consent of the owner
  256  or user of the electronic device concerned may not be used as
  257  consent to disclose the location information of another portable
  258  electronic device that may be remotely linked or connected to
  259  the owner or user of the portable electronic device concerned.
  260         (g) With the informed, affirmative consent of the legal
  261  guardian or next of kin of the electronic device’s user, if the
  262  user is believed to be deceased or has been reported missing and
  263  unable to be contacted.
  264         (h) If the government entity reasonably believes that an
  265  emergency involving immediate danger of death or serious
  266  physical injury to a person requires the disclosure, without
  267  delay, of location information concerning a specific person or
  268  persons and that a warrant cannot be obtained in time to prevent
  269  the identified danger and the possessor of the location
  270  information, in good faith, believes that an emergency involving
  271  danger of death or serious physical injury to a person requires
  272  the disclosure without delay.
  273  
  274  The government entity seeking the location information shall
  275  file with the appropriate court a written statement setting
  276  forth the facts giving rise to the emergency and the facts as to
  277  why the person or persons whose location information was sought
  278  are believed to be important in addressing the emergency, no
  279  later than 48 hours after seeking disclosure. Private entities
  280  providing electronic communications services shall not be made
  281  responsible for ensuring that government entities comply with
  282  this section.
  283         (6) REMEDY.—
  284         (a) Any aggrieved person in any trial, hearing, or
  285  proceeding in or before any court, department, officer, agency,
  286  regulatory body, or other authority may move to suppress the
  287  contents of any information contained in a portable electronic
  288  device or evidence derived therefrom, on the grounds that:
  289         1. The information was unlawfully obtained;
  290         2. The order of authorization or approval under which it
  291  was obtained is insufficient on its face; or
  292         3. The information was not obtained in conformity with the
  293  order of authorization or approval.
  294  
  295  Such motion shall be made before the trial, hearing, or
  296  proceeding unless there was no opportunity to make such motion
  297  or the person was not aware of the grounds of the motion. If the
  298  motion is granted, the information or evidence derived
  299  therefrom, shall be suppressed. The judge, upon the filing of
  300  such motion by the aggrieved person, may make available to the
  301  aggrieved person or his or her counsel for inspection such
  302  portions of the information or evidence derived therefrom as the
  303  judge determines to be in the interest of justice.
  304         (b) In addition to any other right to appeal, the state
  305  shall have the right to appeal from an order granting a motion
  306  to suppress made under paragraph (a) or the denial of an
  307  application for an order of approval if the attorney shall
  308  certify to the judge or other official granting such motion or
  309  denying such application that the appeal is not taken for
  310  purposes of delay. Such appeal shall be taken within 30 days
  311  after the date the order was entered and shall be diligently
  312  prosecuted.
  313         (c) The remedies and sanctions described herein with
  314  respect to the information contained in a portable electronic
  315  device are the only judicial remedies and sanctions for
  316  violations of those sections involving such information.
  317         (7) CAUSE OF ACTION.—This section does not create a cause
  318  of action against any foreign or Florida private entity, its
  319  officers, employees, agents, or other specified persons, for
  320  providing location information.
  321         Section 3. This act shall take effect July 1, 2013.