Florida Senate - 2013                        COMMITTEE AMENDMENT
       Bill No. SB 846
       
       
       
       
       
       
                                Barcode 743804                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/05/2013           .                                
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       The Committee on Criminal Justice (Smith) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 60 - 224
    4  and insert:
    5         enforcement agency or other governmental entity incident to
    6  arrest except pursuant to a warrant issued by a duly authorized
    7  judicial officer using established procedures.
    8         (3) DEFINITION.—As used in this section, the term “portable
    9  electronic device” means an object capable of being easily
   10  transported or conveyed by a person which is capable of
   11  creating, receiving, accessing, or storing electronic data or
   12  communications and that communicates with, by any means, another
   13  entity or individual.
   14         (4) PROHIBITED ACTS.—
   15         (a) The contents and communications of a portable
   16  electronic device, including, but not limited to, data or
   17  information contained in or transmitted from the portable
   18  electronic device, are not subject to a search or seizure by a
   19  law enforcement agency or other governmental entity except
   20  pursuant to a warrant issued by a duly authorized judicial
   21  officer using the procedures established by law.
   22         (b) Except as provided in paragraph (a), this section does
   23  not:
   24         1. Curtail reliance by a law enforcement agency or other
   25  governmental entity on lawful exceptions to the warrant
   26  requirement;
   27         2. Apply in cases of a search conducted incident to
   28  national security; or
   29         3. Apply in cases of a search for a missing child who is
   30  less than 18 years of age.
   31         4. Apply to transponders used for the purpose of assessing
   32  or collecting toll.
   33         5.Apply whenever the government entity reasonably believes
   34  that an emergency involving immediate danger of death or serious
   35  physical injury to a person requires the search or seizure,
   36  without delay, of the contents of a portable electronic device
   37  concerning a specific person or persons and that a warrant
   38  cannot be obtained in time to prevent the identified danger, or
   39  the possessor of the portable electronic device, in good faith,
   40  believes that an emergency involves the danger of death.
   41  
   42  The government entity seeking the contents of the portable
   43  electronic device shall file with the appropriate court a
   44  written statement setting forth the facts giving rise to the
   45  emergency and the facts as to why the person or persons whose
   46  contents of a portable electronic device was sought are believed
   47  to be important in addressing the emergency, no later than 48
   48  hours after seeking disclosure. Private entities providing
   49  electronic communications services shall not be made responsible
   50  for ensuring that government entities comply with this section.
   51         (5) Remedy.—
   52         (a) Any aggrieved person in any trial, hearing, or
   53  proceeding in or before any court, department, officer, agency,
   54  regulatory body, or other authority may move to suppress the
   55  contents of any information contained in a portable electronic
   56  device or evidence derived therefrom, on the grounds that:
   57         1. The information was unlawfully obtained;
   58         2. The search warrant under which it was obtained is
   59  insufficient on its face; or
   60         3. The information was not obtained in conformity with the
   61  search warrant.
   62  
   63  Such motion shall be made before the trial, hearing, or
   64  proceeding unless there was no opportunity to make such motion
   65  or the person was not aware of the grounds of the motion. If the
   66  motion is granted, the information or evidence derived
   67  therefrom, shall be suppressed. The judge, upon the filing of
   68  such motion by the aggrieved person, may make available to the
   69  aggrieved person or his or her counsel for inspection such
   70  portions of the information or evidence derived therefrom as the
   71  judge determines to be in the interest of justice.
   72         (b) In addition to any other right to appeal, the state
   73  shall have the right to appeal from an order granting a motion
   74  to suppress made under paragraph (a) or the denial of an
   75  application for a search warrant if the attorney shall certify
   76  to the judge or other official granting such motion or denying
   77  such application that the appeal is not taken for purposes of
   78  delay. Such appeal shall be taken within 30 days after the date
   79  the order was entered and shall be diligently prosecuted.
   80         (c) The remedies and sanctions described herein with
   81  respect to the information contained in a portable electronic
   82  device are the only judicial remedies and sanctions for
   83  violations of those sections involving such information.
   84         Section 2. Location informational tracking; prohibited
   85  search and seizure.-
   86         (1) FINDINGS.-The Legislature finds that existing law
   87  authorizes a court to issue a warrant for the search of a place
   88  and the seizure of property or things identified in the warrant
   89  when there is probable cause to believe that specified grounds
   90  exist. The Legislature also finds that existing law provides for
   91  a judicial procedure for the acquisition of stored
   92  communications in the possession of a provider of electronic
   93  communication service or a remote computing service.
   94         (2) INTENT.-It is the intent of the Legislature to prohibit
   95  a government entity from obtaining the location information of
   96  an electronic device without a valid court order issued by a
   97  duly authorized judicial officer unless certain exceptions
   98  apply, including in an emergency or when requested by the owner
   99  of the device. However, it is also the intent of the Legislature
  100  that this bill, with certain exceptions, prohibits the use of
  101  information obtained in violation of this section in a civil or
  102  administrative hearing.
  103         (3) DEFINITIONS.-As used in this section the term:
  104         (a) “Electronic communication service” means a service that
  105  provides to its users the ability to send or receive wire or
  106  electronic communications.
  107         (b) “Government entity” means a state or local agency,
  108  including, but not limited to, a law enforcement entity or any
  109  other investigative entity, agency, department, division,
  110  bureau, board, or commission, or an individual acting or
  111  purporting to act for or on behalf of a state or local agency.
  112         (c) “Location information” means information, concerning
  113  the location of an electronic device, including both the current
  114  location and any previous location of the device, that, in whole
  115  or in part, is generated, derived from, or obtained by the
  116  operation of an electronic device.
  117         (d) “Location information service” means the provision of a
  118  global positioning service or other mapping, locational, or
  119  directional information service.
  120         (e) “Owner” means the person or entity recognized by the
  121  law as having the legal title, claim, or right to an electronic
  122  device.
  123         (f) “Portable electronic device” means an object capable of
  124  being easily transported or conveyed by a person which is
  125  capable of creating, receiving, accessing, or storing electronic
  126  data or communications and that communicates with, by any means,
  127  another entity or individual.
  128         (g) “Remote computing service” means the provision of
  129  computer storage or processing services by means of an
  130  electronic communications system.
  131         (h) “User” means a person or entity that uses an electronic
  132  device.
  133         (4) PROHIBITED ACTS.-
  134         (a) A law enforcement agency or other government entity may
  135  not obtain the location information of an electronic device
  136  without a valid court order issued by a duly authorized judicial
  137  officer using the procedure set forth in this section.
  138         (b)An investigative or law enforcement officer may make
  139  application to a judge of competent jurisdiction for an order
  140  authorizing or approving the search for and seizure of the
  141  location information related to an electronic device.
  142         (c)The application must include:
  143         1.A statement of the identity of the applicant and the
  144  identity of the law enforcement agency conducting the
  145  investigation.
  146         2.A certification by the applicant that the information
  147  likely to be obtained is relevant to an ongoing criminal
  148  investigation being conducted by the investigating agency.
  149         3.A statement of the offense to which the information
  150  likely to be obtained relates.
  151         4.A statement whether it may be necessary to monitor the
  152  electronic device outside the jurisdiction of the court from
  153  which authorization is being sought.
  154         (d)If the court finds that the required certification and
  155  statements have been made in the application, the court shall
  156  enter an ex parte order authorizing the monitoring of an
  157  electronic device. Such order may authorize the monitoring of
  158  the device within the jurisdiction of the court and outside that
  159  jurisdiction but within the State of Florida.
  160         (e)A court may not require greater specificity or
  161  additional information beyond that which is required by this
  162  section as a requisite for issuing an order.
  163         (f) A court order may not be issued for the location of an
  164  electronic device pursuant to this section for a period of time
  165  longer than is necessary to achieve the objective of the
  166  authorization, and in any event no longer than 30 days,
  167  commencing on the day the order is issued, or 10 days after the
  168  location information is initially obtained whichever comes
  169  first.
  170         (g) Extensions of an order may be granted, but only upon a
  171  judge finding continuing probable cause and that the extension
  172  is necessary to achieve the objective of the authorization. Each
  173  extension granted for an order pursuant to this section shall be
  174  for no longer than the authorizing judge deems necessary to
  175  achieve the purposes for which the order was originally granted,
  176  but in any event, shall be for no longer than 30 days.
  177         (5) EXCEPTIONS.—Notwithstanding subsection (4), a
  178  government entity may obtain location information without a
  179  search warrant if disclosure of the location information is not
  180  prohibited by federal law, in any of the following
  181  circumstances:
  182         (a)Transponders used for the purpose of assessing or
  183  collecting tolls.
  184         (b) Reliance by a law enforcement agency or other
  185  governmental entity on lawful exceptions to the warrant
  186  requirement.
  187         (c)Cases of a search conducted incident to a national
  188  security event.
  189         (d) Cases of a search for a missing child who is less than
  190  18 years of age.
  191         (e) In order to respond to the user’s call for emergency
  192  services.
  193         (f) With the informed, affirmative consent of the owner or
  194  user of the electronic device concerned, provided that the owner
  195  or user may not consent to the disclosure of location
  196  information if the device is known or believed to be in the
  197  possession of, or attached to a possession of, a third party
  198  known to the owner or user, unless that third party is less than
  199  18 years of age. The informed, affirmative consent of the owner
  200  or user of the electronic device concerned may not be used as
  201  consent to disclose the location information of another portable
  202  electronic device that may be remotely linked or connected to
  203  the owner or user of the portable electronic device concerned.
  204         (g) With the informed, affirmative consent of the legal
  205  guardian or next of kin of the electronic device’s user, if the
  206  user is believed to be deceased or has been reported missing and
  207  unable to be contacted.
  208         (h) If the government entity reasonably believes that an
  209  emergency involving immediate danger of death or serious
  210  physical injury to a person requires the disclosure, without
  211  delay, of location information concerning a specific person or
  212  persons and that a warrant cannot be obtained in time to prevent
  213  the identified danger and the possessor of the location
  214  information, in good faith, believes that an emergency involving
  215  danger of death or serious physical injury to a person requires
  216  the disclosure without delay.
  217  
  218  The government entity seeking the location information shall
  219  file with the appropriate court a written statement setting
  220  forth the facts giving rise to the emergency and the facts as to
  221  why the person or persons whose location information was sought
  222  are believed to be important in addressing the emergency, no
  223  later than 48 hours after seeking disclosure. Private entities
  224  providing electronic communications services shall not be made
  225  responsible for ensuring that government entities comply with
  226  this section.
  227         (6) Remedy.—
  228         (a) Any aggrieved person in any trial, hearing, or
  229  proceeding in or before any court, department, officer, agency,
  230  regulatory body, or other authority may move to suppress the
  231  contents of any information contained in a portable electronic
  232  device or evidence derived therefrom, on the grounds that:
  233         1. The information was unlawfully obtained;
  234         2. The order of authorization or approval under which it
  235  was obtained is insufficient on its face; or
  236         3. The information was not obtained in conformity with the
  237  order of authorization or approval.
  238  
  239  Such motion shall be made before the trial, hearing, or
  240  proceeding unless there was no opportunity to make such motion
  241  or the person was not aware of the grounds of the motion. If the
  242  motion is granted, the information or evidence derived
  243  therefrom, shall be suppressed. The judge, upon the filing of
  244  such motion by the aggrieved person, may make available to the
  245  aggrieved person or his or her counsel for inspection such
  246  portions of the information or evidence derived therefrom as the
  247  judge determines to be in the interest of justice.
  248         (b) In addition to any other right to appeal, the state
  249  shall have the right to appeal from an order granting a motion
  250  to suppress made under paragraph (a) or the denial of an
  251  application for an order of approval if the attorney shall
  252  certify to the judge or other official granting such motion or
  253  denying such application that the appeal is not taken for
  254  purposes of delay. Such appeal shall be taken within 30 days
  255  after the date the order was entered and shall be diligently
  256  prosecuted.
  257         (c) The remedies and sanctions described herein with
  258  respect to the information contained in a portable electronic
  259  device are the only judicial remedies and sanctions for
  260  violations of those sections involving such information.
  261         (7) CAUSE OF ACTION.—This section does not create a cause
  262  
  263  ================= T I T L E  A M E N D M E N T ================
  264         And the title is amended as follows:
  265         Delete lines 10 - 24
  266  and insert:
  267         established by law; providing exceptions; providing a
  268         remedy; prohibiting location informational tracking;
  269         providing legislative findings and intent; defining
  270         terms; prohibiting a government entity from obtaining
  271         the location information of an electronic device
  272         without a valid court order issued by a duly
  273         authorized judicial officer; providing that a court
  274         order may not be issued for the location of an
  275         electronic device for a period of time longer than is
  276         necessary to achieve the objective of the court order
  277         authorization; providing time periods for the validity
  278         of a court order; providing criteria by which to
  279         extend a court order for location information;
  280         providing exceptions to the requirement to obtain a
  281         court order for location information; providing a
  282         remedy; providing an