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H. B. No. 304 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Representatives Adams, J., Blair, Boose, Grossman, Huffman, Ruhl, Sears, Stebelton
A BILL
To enact sections 2917.51 and 2933.81 of the Revised
Code to prohibit the use of a tracking device to
determine the location or movement of a person
without the person's consent subject to specified
exceptions, to provide for the issuance of a
search warrant to a law enforcement officer or
prosecutor authorizing the installation, use, and
removal of a tracking device subject to specified
conditions, and to provide for the installation
and use of a tracking device by an investigative
officer or law enforcement officer without a
search warrant in specified emergency situations
and subject to specified conditions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2917.51 and 2933.81 of the Revised
Code be enacted to read as follows:
Sec. 2917.51. (A) As used in this section:
(1) "Tracking device" means any device that reveals its
location or movement by the transmission of electronic signals.
(2) "Class A license," "class B license," and "private
investigator" have the same meanings as in section 4749.01 of the
Revised Code.
(B) Except as otherwise provided in this section, no person
shall use a tracking device to determine the location or movement
of another person without the other person's consent.
(C) Division (B) of this section does not apply to the use of
a tracking device pursuant to section 2933.81 of the Revised Code
by any law enforcement agency, law enforcement officer,
prosecutor, or investigative officer if the use is in accordance
with that section.
(D) Division (B) of this section does not apply to any of the
following:
(1) The use of a tracking device to determine the location or
movement of another person if the owner or lien holder of a
vehicle has consented to the use of a tracking device with respect
to the vehicle and the device is used with respect to that
vehicle;
(2) The use of a tracking device to determine the location or
movement of another person if the lessor or lessee of a vehicle
and the person operating the vehicle have consented to the use of
a tracking device with respect to the vehicle and the device is
used with respect to that vehicle;
(3) To an action of a law enforcement agency acting in a law
enforcement capacity or to an action of a law enforcement
official, court official, or other authorized person that relates
to an offender's or delinquent child's use of a global positioning
system device, global positioning device, or electronic monitoring
device required pursuant to a sanction imposed or order issued
under any provision of the Revised Code;
(4) To an action of United States military law enforcement
personnel in the performance of the personnel's official duties;
(5) To an action of a parent, guardian, custodian, or person
in loco parentis of a child or another person, with respect to
determining the location or movement of the child or other person
with whom the parent, guardian, custodian, or person in loco
parentis has the specified legal relationship;
(6) To an action of a person who is a family member or
caregiver of another person who has been diagnosed by a licensed
physician to be suffering from Alzheimer's disease, vascular
dementia, Pick's disease, Creutzfeldt-Jakob disease, Parkinson's
disease, or Lewy body dementia, with respect to determining the
location or movement of the other person who has been so
diagnosed;
(7) To an action of a facility licensed, certified, or
accredited pursuant to Chapter 3712., 3721., 3722., or 3727. of
the Revised Code, with respect to determining the location or
movement of a patient through the use of a tracking device when
the device is considered medically necessary by the patient's
physician;
(8) To the provision of a commercial service, including, but
not limited to, a mobile telephone service or vehicle safety or
security service, that allows the provider of the service to
determine the location or movement of a device provided to a
customer of the commercial service for the purpose of providing
the commercial service;
(9) To an action of a private investigator who has been
issued a class A or class B license under Chapter 4749. of the
Revised Code that is valid at the time of the action, while in the
performance of any duty that is authorized for the private
investigator in connection with pending, active civil litigation
if all of the following are satisfied:
(a) Before engaging in the action, the private investigator
obtains an order authorizing the use of a tracking device from the
court of common pleas of the county in which the person who is the
subject of the tracking device resides.
(b) Any information or data obtained as a result of the use
of a tracking device by the private investigator is kept
confidential and is not to be disclosed to any person other than
the
judge and the parties involved in the litigation and their
attorneys except upon order of the court in which the civil
litigation is pending, the information or data so obtained is
subject to discovery by any party to the civil litigation, and,
upon the termination of the civil litigation, the information or
data is immediately destroyed.
(E) Notwithstanding division (D) of this section, no person
shall be required to be implanted with a tracking device pursuant
to this section.
(F) Whoever violates this section is guilty of "unauthorized
use of a tracking device," a misdemeanor of the first degree.
Sec. 2933.81. (A) As used in this section:
(1)(a) Except as provided in division (A)(1)(b) of this
section, "tracking device" means an electronic or mechanical
device that, when placed or installed upon a person or object,
permits one or more other persons to remotely determine or track
the position and movement of the person upon whom, or the object
upon which, the device is placed or installed.
(b) As used in this section, "tracking device" does not
include any of the following:
(i) Any device, including, but not limited to, a cellular
telephone or another personal electronic device, that includes as
an incidental feature the capability of determining the location
of the device by utilizing a global positioning satellite system;
(ii) Any device that is 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 the minor's
parent or guardian.
(2) "Investigative officer" has the same meaning as in
section 2933.51 of the Revised Code.
(3) "Law enforcement officer" means any sheriff, deputy
sheriff, constable, municipal police officer, marshal, deputy
marshal, or state highway patrolman, or any officer, agent, or
employee of this state or any of its agencies, instrumentalities,
or political subdivisions upon whom, by statute, the authority to
arrest violators is conferred, when the officer, agent, or
employee is acting within the limits of that statutory authority.
(4) "Prosecutor" means the prosecuting attorney of a county,
the village solicitor, city director of law, or similar chief
legal officer of a municipal corporation, and any assistant of any
of those officers.
(B) A law enforcement officer of a law enforcement agency in
the county in which the tracking device is to be installed, or a
prosecutor who serves that county or a municipal corporation
within that county, may apply to a judge of the court of common
pleas of that county for the issuance of a search warrant
authorizing the installation, use, and removal of a tracking
device. Each application for a search warrant of that nature shall
be in writing upon oath or affirmation to a judge of the court of
common pleas of the county in which the tracking device is to be
installed and shall contain all of the following:
(1) A full and complete statement of the facts relied on by
the applicant that are 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 that crime;
(2) A full and complete statement of the facts relied on by
the applicant that are 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;
(3) A particular description of the person or object upon
which a tracking device is to be installed.
(C) Upon the written application of a law enforcement officer
or prosecutor made pursuant to division (B) of this section, a
judge of a court of common pleas with whom the application is made
may issue a search warrant authorizing the installation, use, and
removal of a tracking device. If a judge of a court of common
pleas issues a search warrant of that nature, all of the following
apply:
(1) A tracking device authorized by the search warrant shall
be installed within ten days after the issuance of the warrant and
shall be installed within the county served by the issuing judge.
The date and time of installation shall be recorded and included
in the return described in division (C)(4) of this section that is
made to the issuing judge. If the tracking device is not installed
within the ten-day period specified in this division, the warrant
shall be returned to the issuing judge as unexecuted.
(2) The search warrant shall authorize the use of a tracking
device for a reasonable period of time, not to exceed forty-five
days, unless extended as provided in this division, commencing on
the date on which the tracking device is installed upon the person
or object to be tracked. Upon written application for an extension
of the authorized time for use of the device and upon a finding of
good cause, the issuing judge may authorize one or more extensions
of the search warrant for a reasonable period of time, not to
exceed forty-five days for each such extension.
(3) When the period of time authorized for the use of a
tracking device under the search warrant or the last extension of
the period of time for the use of the device has expired,
monitoring of the tracking device shall be discontinued
immediately.
(4) Within ten days after the period of time authorized for
the use of a tracking device under the search warrant or the last
extension of the period of time for the use of the device has
expired, the officer executing the warrant shall make a return of
the warrant to the issuing judge. The return shall specify the
date on which and the time at which the tracking device was
installed, the address or location of installation of the tracking
device, the date on which and the time at which the monitoring was
discontinued, and a general summary of the movements of the object
or person tracked during the duration of the tracking.
(5) Within ten days after the period of time authorized for
the use of a tracking device under the search warrant or the last
extension of the period of time for the use of the device has
expired, the officer executing the warrant shall serve a copy of
the warrant on the person who was tracked or whose property was
tracked. The office shall accomplish service of the warrant on a
person under this division by delivering a copy of it to the
person, by leaving a copy of it at the 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 of it to the
person's last known address. Upon the request of the law
enforcement officer or prosecutor who applied for the warrant or
the officer who executed the warrant, the issuing judge may delay
for a reasonable time service of the notice otherwise required
under this division. If the issuing judge delays service of notice
upon request as described in this division, the notice shall be
served not later than ten days after the issuance of an arrest
warrant, indictment, or information based wholly or in part upon
information derived from the use of a tracking device pursuant to
the warrant.
(6) A tracking device installed and used under the authority
of the search warrant may be used within the county served by the
issuing judge and, provided the device is installed within that
county, may be used outside that county.
(7) Except as otherwise provided in this division, the search
warrant and any extension of the warrant, the application upon
which the warrant and extensions, if any, were issued, the
affidavit supporting the warrant and extensions, if any, the
return made under division (C)(4) of this section, and any request
for an order granting a delay in the service of notice made as
described in division (C)(5) of this section shall be filed with
the clerk of the court of common pleas served by the issuing
judge, or with the issuing judge if so ordered, at the time the
return is made or when the warrant has been returned pursuant to
division (C)(1) of this section as unexecuted. The judge who
issues the search warrant may order that the documents described
in this division be sealed while an investigation remains ongoing
until such time that an arrest warrant, indictment, or information
based wholly or in part upon information derived from the use of
the tracking device installed and used under the authority of the
warrant is issued.
(D)(1) Any investigative officer or law enforcement officer
who is specially designated in writing by the attorney general or
by a prosecuting attorney for the purpose of having installed and
using a tracking device without the prior issuance of a search
warrant, may have installed and use a tracking device without the
prior issuance of a search warrant pursuant to divisions (B) and
(C) of this section, subject to division (D)(2) of this section,
if the officer reasonably determines both of the following:
(a) That an emergency situation exists that involves either
immediate danger of death or serious physical harm to any person
or conspiratorial activities characteristic of organized crime and
the emergency situation requires the installation and use of a
tracking device before a search warrant authorizing that
installation and use can, with due diligence, be obtained pursuant
to divisions (B) and (C) of this section;
(b) There are grounds upon which a search warrant could be
issued pursuant to divisions (B) and (C) of this
section to
authorize such installation and use.
(2) If an investigative officer or law enforcement officer
has installed and uses a tracking device under authority of
division (D)(1) of this section, within forty-eight hours after
the time the tracking device is installed, the officer or another
investigative officer or law enforcement officer serving the same
law enforcement agency as that officer shall apply for and obtain
in accordance with divisions (B) and (C) of this section a search
warrant approving the installation or use of the device.
(3) If an application for a search warrant is made as
described in division (D)(2) of this section and it is granted,
division (C) of this section applies to the further installation
and use of the tracking device.
If an application for a search warrant is made as described
in division (D)(2) of this section and the application is denied,
or if the installation or use of the tracking device under
division (D)(1) of this section is terminated without a search
warrant having been issued pursuant to divisions (B) and (C) of
this section, any tracking information or other surveillance
effected pursuant to division (D)(1) of this section is
confidential and shall not be disclosed or be admissible in any
court of this state except to prove violations of this section or
section 2917.51 of the Revised Code.
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