Relates to issuing warrants for mobile tracking devices

BILL NUMBER:S4731

Title of bill

An act to amend the criminal procedure law, in relation to issuing warrants for mobile tracking devices

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Criminal Law and Procedure.

This measure would amend Article 690 of the Criminal Procedure Law to add express authority for a court to issue a warrant that authorizes placement of a mobile tracking device on a suspect's property or person.

In People v Weaver (12 NY3d 433 (2009)), the New York State Court of Appeals determined that the State Constitution requires law enforcement to first secure a warrant in order to place a global positioning satellite ("GPS") tracking device on a suspect's automobile. Subsequently, the United States Supreme Court similarly held that affixing a GPS tracking device on a vehicle and using it to acquire detailed data about the movements of the vehicle constitutes a search or seizure within the meaning of the Fourth Amendment of the United States Constitution (United States v Jones, 132 Sup. Ct. 945(2011). Although the Supreme Court did not examine whether a warrant is required in all cases, the definitive consequence of both Weaver and Jones is that New York courts must have a procedure to consider warrant applications for mobile tracking devices.

Procedures for issuing search warrants in New York are codified in Article 690 of the Criminal Procedure Law, Mobile tracking devices, however, do not come within the scope of a search warrant as currently defined. Article 690 provides that a search warrant is a court order directing a police officer to conduct "a search of designated premises, or of a designated vehicle, or of a designated person, for the purpose of seizing designated property or kinds of property, and to deliver any property so obtained to the court which issued the warrant" (CPL 690.05(2)(a)). Mobile tracking devices are not used to seize identified property, but only to track a suspect's activity. Nor does a mobile tracking device fit within the parameters of any other form of warrant authorized under the Criminal Procedure Law. An eavesdropping warrant involves "wiretapping" and is directed to the "mechanical overhearing of conversation" or the "intercepting of or accessing of an electronic communication" (CPL 700.05(1)). A video surveillance warrant involves the "intentional visual observation by law enforcement of a person by means of a television camera or other electronic device that is part of a television transmitting apparatus ..." (CPL 700.05(9)). Finally, pen registers and trap and trace devices involve identifying telephone numbers that are used to initiate or receive telephone communications (CPL 705.00(1),(2)).

Although a mobile tracking device has characteristics of several types of devices currently requiring a warrant under the Criminal Procedure Law, on the advice of our Advisory Committee, we recommend that warrants for these devices be provided as a new class of search warrant. Accordingly, this measure adds a new paragraph to section 690.05 that defines a search warrant to include "the installation, maintenance, and monitoring of a mobile tracking device." The measure

also adds a new section 690.60 to the Criminal Procedure Law setting forth the procedures a court must follow in issuing a mobile tracking device warrant.

This measure would have no fiscal impact on the State. It would take effect immediately.

Legislative History:

None. New proposal.