09 LC
38 0929S
The
Senate Special Judiciary Committee offered the following substitute to HB
16:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Titles 16 and 17 of the Official Code of Georgia Annotated, relating to
crimes and offenses and criminal procedure, respectively, so as to regulate the
use of tracking devices; to prohibit the tracking of the location or movement of
another person without such other person's consent; to provide for exceptions;
to provide for punishment; to provide for the issuance of search warrants
authorizing the installation, use, and removal of tracking devices subject to
certain conditions; to provide for a definition; to provide for installation and
use of tracking devices in emergency situations; to provide for related matters;
to provide for an effective date and applicability; to repeal conflicting laws;
and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
16 of the Official Code of Georgia Annotated, relating to crimes and offenses,
is amended by adding a new Code section to read as follows:
"16-11-62.1.
(a)
As used in this Code section, the term 'tracking device' means any device that
reveals its location or movement by the transmission of electronic
signals.
(b)
Except as otherwise provided in this Code section, no person shall use a
tracking device to determine the location or movement of another person without
such other person's consent.
(c)
Official law enforcement agencies shall be specifically authorized to use
tracking devices pursuant to Code Section 17-5-22.1.
(d)
This Code section shall not apply:
(1)
When the owner or lienholder of a vehicle has consented to the use of a tracking
device with respect to such vehicle;
(2)
When the lessor or lessee of a vehicle and the person operating such vehicle
have consented to the use of a tracking device with respect to such
vehicle;
(3)
To official actions of an official law enforcement agency acting in a law
enforcement capacity;
(4)
To actions of United States military law enforcement personnel in the
performance of their official duties;
(5)
To actions of a parent, legal guardian, or person in loco parentis with respect
to determining the location or movement of a child or other person with whom
such parent, legal guardian, or person in loco parentis has such legal
relationship;
(6)
To actions of a family member or caregiver with respect to determining the
location or movement of a patient or family member with a diagnosis by a
licensed physician of Alzheimer's disease, vascular dementia, Pick's disease,
Creutzfeldt-Jakob disease, Parkinson's disease, or Lewy body
dementia;
(7)
To actions of a facility licensed pursuant to Title 31 with respect to
determining the location or movement of a patient when such device is deemed
medically necessary by the patient's physician;
(8)
To actions of a private detective who is licensed pursuant to Chapter 38 of
Title 43 while in the performance of duties that are authorized for such
detective; or
(9)
To the provision of a commercial service, such as mobile telephone service or
vehicle safety or security service, which allows the provider of such service to
determine the location or movement of a device provided to a customer of such
commercial service for the purpose of providing such commercial
service.
(e)
Notwithstanding subsection (d) of this Code section, no person shall be required
to be implanted with a tracking device pursuant to this Code
section.
(f)
Any person violating this Code section shall upon conviction be guilty of a
misdemeanor; provided, however, that it shall not be a violation of this Code
section to use a tracking device to determine the location or movement of
another person without such other person's consent if such person is an occupant
of a vehicle where use of such tracking device is permissible according to the
provisions of subsection (d) of this Code
section."
SECTION
2.
Title
17 of the Official Code of Georgia Annotated, relating to criminal procedure, is
amended by adding a new Code section to read as follows:
"17-5-22.1.
(a)
As used in this Code section, the term 'tracking device' means an electronic or
mechanical device which, when placed or installed upon a person or object,
permits other persons to remotely determine or track the position and movement
of such person or object, but the term shall not include:
(1)
Devices, such as a cellular telephone or other personal electronic device, which
include as an incidental feature the capability of determining the location of
such devices by utilizing a global positioning satellite system; or
(2)
Devices which are installed or utilized with the knowledge and consent of the
owner or user of the device or, in the case of a minor, with the knowledge and
consent of his or her parent or guardian.
(b)
Upon the written application of any certified peace officer of this state or its
political subdivisions charged with the duty of enforcing the criminal laws and
otherwise as authorized in Code Section 17-5-20 under oath or affirmation, a
judge of any court in this state authorized to issue search warrants pursuant to
Code Section 17-5-21 may issue a search warrant authorizing the installation,
use, and removal of a tracking device subject to the following
conditions:
(1)
The application shall be made before a judge of the superior court with the
authority to issue warrants within the geographic jurisdiction where such
tracking device is to be installed;
(2)
The application shall set forth facts sufficient to establish probable cause to
believe that a particular crime has been committed, is being committed, or will
be committed and that the person or object to be tracked is involved, was
involved, or will be involved in the commission or facilitation of such
crime;
(3)
The application shall set forth facts sufficient to establish probable cause to
believe that the use of a tracking device will result in the prevention of a
criminal offense under investigation, the seizure of evidence relevant to the
investigation or prosecution of a criminal offense, or the whereabouts of a
fugitive from justice or a suspect, victim, or witness relating to a criminal
offense;
(4)
The application shall particularly describe the person or object upon which a
tracking device is to be installed;
(5)
A tracking device authorized by this Code section shall be installed within ten
days after the issuance of the warrant and shall be installed within the
geographic jurisdiction of the issuing judge. If the tracking device is not
installed within that time, the warrant shall be returned to the issuing judge
as unserved. The date and time of installation shall be recorded and included
in the return made to the issuing judge;
(6)(A)
A search warrant issued pursuant to this Code section shall authorize the use of
a tracking device for a reasonable period of time, not to exceed 45 days, except
as provided in subparagraph (B) of this paragraph, measured from the date such
tracking device is installed upon the person or object to be
tracked.
(B)
Upon written application for extension and upon a finding of good cause, the
issuing judge may authorize one or more extensions for a reasonable period of
time, not to exceed 45 days each;
(7)
When the period of time authorized for the use of a tracking device or the last
extension thereof has expired, monitoring of such tracking device shall be
discontinued immediately;
(8)
Within ten days after the period of time authorized for the use of a tracking
device or the last extension thereof has expired, the officer executing the
warrant shall make a return thereof to the issuing judge. The return shall
specify the date and time such tracking device was installed and the address or
location of installation of such tracking device, the date and time that
monitoring was discontinued, and a general summary of the movements of the
object or person tracked during the duration of the surveillance;
(9)
Within ten days after the period of time authorized for the use of a tracking
device or the last extension thereof has expired, the officer executing a search
warrant issued pursuant to this Code section shall serve a copy of such warrant
on the person who was tracked or whose property was tracked. Service shall be
accomplished by delivering a copy to such person or by leaving a copy at such
person's residence or usual place of abode with an individual of suitable age
and discretion who resides at that location or by mailing a copy to such
person's last known address. Upon the request of the state or the officer
executing the warrant, the issuing judge may delay notice for a reasonable time;
provided, however, that where such notice is delayed, such notice shall be
served no later than ten days after issuance of an arrest warrant, indictment,
or accusation based wholly or in part upon information derived from the use of a
tracking device;
(10)
A tracking device installed and used under the authority of a warrant issued
pursuant to this Code section may be used within the jurisdiction of the issuing
court as well as outside such jurisdiction if such tracking device was installed
within the jurisdiction of the issuing court; and
(11)
The warrant and any extension thereof, the application upon which the warrant
and extensions, if any, were issued, the affidavit supporting the warrant and
extensions, if any, the return, and any request for and order granting a delay
in the serving of notice shall be filed with the clerk of the court of the
issuing judge, or with the court if so ordered, at the time the return is made
or when the warrant has been returned not executed; provided, however, that the
issuing judge may order that such documents be sealed while an investigation
remains ongoing until such time that an arrest warrant, indictment, or
accusation based wholly or in part upon information derived from the use of the
tracking device is issued.
(c)(1)
Any investigative or law enforcement officer, specially designated in writing
for such purpose by the Attorney General or by a district attorney, who
reasonably determines that:
(A)
An emergency situation exists that involves:
(i)
Immediate danger of death or serious bodily injury to any person;
or
(ii)
Conspiratorial activities characteristic of organized crime
that
requires the installation and use of a tracking device before an order
authorizing such installation and use can, with due diligence, be obtained;
and
(B)
There are grounds upon which a search warrant pursuant to subsection (b) of this
Code section could be issued to authorize such installation and use,
may
have installed and use a tracking device if, within 48 hours of the time the
tracking device is installed, an order approving the installation or use is
issued in accordance with subsection (b) of this Code section.
(2)
In the event that an application for a search warrant made pursuant to this
subsection is granted, then the tracking device shall be installed and used in
accordance with the provisions of subsection (b) of this Code
section.
(3)
In the event that an application for a search warrant made pursuant to this
subsection is denied or in any event where the installation or use of the
tracking device is terminated without a search warrant having been issued, any
tracking information or other surveillance effected pursuant to this subsection
shall be confidential and shall not be disclosed or be admissible in any court
of this state except to prove violations of this Code
section."
SECTION
3.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval and shall apply with respect to conduct on
and after that date.
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.