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Second Regular Session

Sixty-first General Assembly

LLS NO. 98­0447.01 JBB SENATE BILL 98­097

STATE OF COLORADO

BY SENATOR Congrove;

also REPRESENTATIVE Arrington.

JUDICIARY

A BILL FOR AN ACT

CONCERNING ADDITIONAL RESTRICTIONS ON INFORMATION GATHERING.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.)

Sections 1 and 2. For purposes of legal and illegal wiretapping and eavesdropping, includes within the definition of "electronic communications" communications from tracking devices.

Section 3. Clarifies that governmental employees are not authorized to clone or use a cloned cellular phone or to intercept signals without a warrant.

Section 4. Establishes additional limitations on the issuance of warrants including:

• Requiring a government attorney to review and sign applications for warrants;
• Prohibiting the use of facts known or verified more than 30 days prior to the application unless the warrant related to a crime that is to occur at a specific time in the future; and
• If the warrant is to be executed by entry without prior identification, requires the application to so state and to establish, by clear and convincing evidence, the need for entry without prior identification and that no other method is suitable; and

Invalidates any search warrant that does not comply with the stated requirements. Prohibits the use, by the state or any of its political subdivisions, of any information obtained through the search warrant issued in violation of the stated requirements.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  The introductory portion to 18­9­301 (3.3) and 18­9­301 (3.3) (b), (3.3) (c), and (3.3) (d), Colorado Revised Statutes, are amended to read:

18­9­301.  Definitions. As used in sections 18­9­301 to 18­9­305, unless the context otherwise requires:

(3.3)  "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects interstate or foreign commerce but does not include:

(b)  Any wire or IN PERSON oral communication; OR

(c)  Any communication made through a tone­only paging device. or

(d)  Any communication from a tracking device.

SECTION 2.  The introductory portion to 16­15­101 (3.3) and 16­15­101 (3.3) (b), (3.3) (c), (3.3) (d), and (8.6), Colorado Revised Statutes, are amended to read:

16­15­101.  Definitions. As used in this article, unless the context otherwise requires:

(3.3)  "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects interstate or foreign commerce but does not include:

(b)  Any wire or IN PERSON oral communication; OR

(c)  Any communication made through a tone­only paging device. or

(d)  Any communication from a tracking device.

(8.6)  "Tracking device" means an electronic or mechanical device which permits the tracking of the movement of a person or object.

SECTION 3. The introductory portion to 18­9­309 (5), Colorado Revised Statutes, is amended, and the said 18­9­309 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read:

18­9­309. Telecommunications crime. (5)  EXCEPT AS PROVIDED IN SUBSECTION (5.5) OF THIS SECTION, the provisions of this section do not apply to:

(5.5)  NOTHING IN SUBSECTION (5) OF THIS SECTION SHALL BE INTERPRETED AS AUTHORIZING ANY LAW ENFORCEMENT OFFICER OR PUBLIC OFFICIAL TO USE CLONING EQUIPMENT, CLONED CELLULAR PHONES, OR TO INTERCEPT SIGNALS WITHOUT A VALID WARRANT.

SECTION 4.  16­3­303, Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS to read:

16­3­303.  Search warrants ­ application. (4)  NOTWITHSTANDING ANY OTHER STATUTE OR RULE, NO SEARCH WARRANT SHALL BE ISSUED:

(a)  UNLESS THE APPLICATION FOR THE WARRANT AND THE AFFIDAVIT HAVE BEEN REVIEWED, APPROVED, AND SIGNED BY AN ATTORNEY FOR THE STATE OR LOCAL GOVERNMENT REQUESTING THE WARRANT;

(b)  UNLESS THE FACTS ESTABLISHING PROBABLE CAUSE BECAME KNOWN TO THE ENTITY REQUESTING THE WARRANT OR WERE VERIFIED NOT MORE THAN THIRTY DAYS PRIOR TO THE APPLICATION FOR THE WARRANT, EXCEPT WHERE AN OFFENSE IS TO BE COMMITTED AT A SPECIFIC FUTURE TIME; AND

(c)  UNLESS, IF THE WARRANT IS TO BE SERVED BY ENTRY WITHOUT PRIOR IDENTIFICATION, THE WARRANT APPLICATION HAS SPECIFICALLY NOTED THE INTENT TO SERVE BY ENTRY WITHOUT PRIOR IDENTIFICATION, AND THE APPLICATION HAS, BY CLEAR AND CONVINCING EVIDENCE, DEMONSTRATED BOTH THE NEED FOR ENTRY WITHOUT PRIOR IDENTIFICATION AND THE UNSUITABILITY OF OTHER METHODS OF SERVICE.

(5)  NOTWITHSTANDING ANY OTHER LAW OR RULE, ANY SEARCH WARRANT ISSUED IN VIOLATION OF SUBSECTION (4) OF THIS SECTION SHALL BE INVALID, AND ANY EVIDENCE OBTAINED THROUGH THE USE OF SAID SEARCH WARRANT SHALL NOT BE ADMISSIBLE IN ANY COURT AND SHALL NOT BE USED BY THE STATE OR ANY POLITICAL SUBDIVISION OF THE STATE FOR ANY PURPOSE.

SECTION 5.  Effective date ­ applicability. (1)  This act shall take effect September 1, 1998; except that, if a referendum petition is filed against this act or an item, section, or part of this act within the ninety­day period after final adjournment of the general assembly that is allowed for submitting a referendum petition pursuant to article V, section 1 (3) of the state constitution, then the act, item, section, or part, if approved by the people, shall take effect February 1, 1999.

(2)  The provisions of this act shall apply to offenses committed and warrants applied for on or after the applicable effective date of this act.