BILL REQ. #:  S-3980.1 

READ FIRST TIME 01/23/04.   

     AN ACT Relating to authorization of electronic tracking devices for law enforcement purposes; amending RCW 10.79.015 and 10.79.020; creating a new section; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The courts having concluded that citizens have a reasonable expectation under Article I, section 7 of the Washington state Constitution that their vehicles will not be remotely tracked without authority of law, the legislature adopts this law to specifically authorize law enforcement's use of tracking equipment in or on vehicles or other objects. The legislature intends this law to be governed by and interpreted in light of all general principles and doctrines of search law, including exceptions to the warrant requirement, as now or hereafter applicable in this state.

Sec. 2   RCW 10.79.015 and 2003 c 53 s 94 are each amended to read as follows:
     Any such magistrate, when satisfied that there is ((reasonable)) probable cause, may also, upon like ((complaint)) application made on oath, issue search warrant in the following cases, to wit:
     (1) To search for and seize any counterfeit or spurious coin, or forged instruments, or tools, machines or materials, prepared or provided for making either of them.
     (2) To search for and seize any gaming apparatus used or kept, and to be used in any unlawful gaming house, or in any building, apartment or place, resorted to for the purpose of unlawful gaming.
     (3) To search for and seize any evidence material to the investigation or prosecution of any homicide or any felony: PROVIDED, That if the evidence is sought to be secured from any radio or television station or from any regularly published newspaper, magazine or wire service, or from any employee of such station, wire service or publication, the evidence shall be secured only through a subpoena duces tecum unless: (a) There is probable cause to believe that the person or persons in possession of the evidence may be involved in the crime under investigation; or (b) there is probable cause to believe that the evidence sought to be seized will be destroyed or hidden if subpoena duces tecum procedures are followed. As used in this subsection, "person or persons" includes both natural and judicial persons.
     (4) To search for and seize any instrument, apparatus, or device used to obtain telephone or telegraph service in violation of RCW 9.26A.110 or 9.26A.115.
     (5)(a) To install tracking equipment in or on any object within ten days; to maintain, use, and monitor that tracking equipment for periods not longer than thirty days; and to remove that equipment after authority to monitor ends, PROVIDED, That the application describes the object into or onto which the equipment is to be installed, and that probable cause exists to believe that use of the equipment will lead to evidence of a crime, contraband, fruits of crime, things criminally possessed, weapons, other things by means of which a crime has been committed, is being committed, or reasonably appears about to be committed, or will lead to learning the location of a person who is unlawfully restrained or reasonably believed to be a victim in a criminal investigation, or for whose arrest there is probable cause. Warrant authority under this section shall state the time period or number of days the use of the equipment is authorized.
     (b) A magistrate of a municipal or district court may issue a warrant to install tracking equipment only within the magistrate's jurisdiction. The tracking equipment may be maintained, used, and monitored anywhere within this state.
     (c) For the purposes of this subsection:
     (i) "Tracking equipment" includes all electronic or mechanical devices, whether using radio frequency, global positioning, or other technology, used to determine the location, status, movement, and/or direction of travel of the object into or onto which the equipment is placed without direct visual observation of the object.
     (ii) "Maintain" includes all activity necessary to monitor, repair, or assure continued operability of tracking equipment.
     (iii) "Monitor" includes all forms of detecting, obtaining, and recording information from the operation of tracking equipment and all information regarding the status and condition of the tracking equipment, except those that involve direct observation of the tracking equipment or the object into or onto which the tracking equipment is installed.
     (6) A warrant issued under this section must be supported by an affidavit, a document as provided in RCW 9A.72.085, or sworn testimony establishing the grounds for issuing the warrant. The sworn testimony may be an electronically recorded telephonic statement or a combination of written material and an electronically recorded telephonic statement. The recording or a duplication of the recording shall be a part of the court record and shall be transcribed if requested by a party if there is a challenge to the validity of the warrant or if ordered by the court. The evidence in support of the finding of probable cause shall be preserved and shall be subject to constitutional limitations for such determinations and may be hearsay in whole or in part. If the court finds that probable cause for the issuance of a warrant under this section exists, it shall issue a warrant or direct an individual whom it authorizes for such purpose to affix the court's signature to a warrant authorizing any peace officer to conduct the authorized search.

Sec. 3   RCW 10.79.020 and Code 1881 s 969 are each amended to read as follows:
     A search warrant authorized by this chapter may be issued by the court upon request of a peace officer or a prosecuting attorney. All such warrants shall be directed to the sheriff of the county, or his deputy, or to any ((constable)) peace officer of the county, commanding such officer:
     (1) In the case of warrants to seize property or persons, to search the house or place where the stolen property or other things for which he is required to search are believed to be concealed, which place and property, or things to be searched for shall be designated and described in the warrant, and to bring such stolen property or other things, when found, and the person in whose possession the same shall be found, before the magistrate who shall issue the warrant, or before some other magistrate or court having cognizance of the case; or
     (2) In the case of warrants for tracking equipment, to install the equipment into or onto the object to be tracked; to maintain, service, and monitor the equipment; and upon conclusion of warrant authority to remove the equipment and report the results of use of the equipment to the magistrate who issued the warrant, or to some other magistrate or court having cognizance of the case. This report supersedes and replaces any reporting requirement under CrR 2.3(d) and CrRLJ 2.3(d) as currently written or hereafter amended.

NEW SECTION.  Sec. 4   This act takes effect July 1, 2004.