Hagenbuch Bill Lets Officers Copy Seized Phone Data Without A Warrant

The text as introduced · 970 words

90R4486 JSC-D

By: Hagenbuch
S.B. No. 176

A BILL TO BE ENTITLED

AN ACT

relating to a law enforcement search of cellular telephones and

other wireless communication devices, to the preservation or

extraction of data from those devices, and to the admissibility of

that data and related evidence in a criminal action.

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

SECTION 1. Article 18.0215, Code of Criminal Procedure, is

amended by amending Subsections (b), (c), and (d) and adding

Subsections (f), (g), (h), (i), and (j) to read as follows:

(b) A warrant under this article may be issued only by a

judge, including a judge of a statutory county court, in the same

judicial district as the site of:

(1) the law enforcement agency that employs the peace

officer, if the cellular telephone or other wireless communications

device is in the officer's possession; [ or ]

(2) the assigned duty station or other official place

of assignment of the peace officer who applies for the warrant;

(3) the physical location of the device, or, if the

physical location is not known, the likely physical location of the

[ telephone or ] device ; or

(4) the seizure of the device .

(c) A judge may issue a warrant under this article only on

the application of a peace officer. An application must be written

and signed and sworn to or affirmed before the judge. The

application must:

(1) state the name, department, agency, and address of

the applicant;

(2) identify the cellular telephone or other wireless

communications device to be searched;

(3) state the name of the owner or possessor of the

[ telephone or ] device to be searched;

(4) state the judicial district in which:

(A) the law enforcement agency that employs the

peace officer is located, if the [ telephone or ] device is in the

officer's possession; [ or ]

(B) the peace officer applying for the warrant is

assigned to perform the officer's official duties;

(C) the [ telephone or ] device is physically

located or likely to be physically located; or

(D) the device was seized; and

(5) state the facts and circumstances that provide the

applicant with probable cause to believe that:

(A) criminal activity has been, is, or will be

committed; and

(B) searching the [ telephone or ] device is likely

to produce evidence in the investigation of the criminal activity

described in Paragraph (A).

(d) Notwithstanding any other law, a peace officer may

search a cellular telephone or other wireless communications device

without a warrant if:

(1) the owner or possessor of the [ telephone or ]

device consents to the search;

(2) the [ telephone or ] device is reported stolen by

the owner or possessor; or

(3) the officer reasonably believes that:

(A) the [ telephone or ] device is in the

possession of a fugitive from justice for whom an arrest warrant has

been issued for committing a felony offense; or

(B) there exists an immediate life-threatening

situation, as defined by Article 18A.201.

(f) A peace officer who has lawfully seized a cellular

telephone or other wireless communications device may, regardless

of whether a warrant to search the contents of the device is issued

under this article, take reasonable measures to preserve the

device's evidentiary state, including isolating the device from

network connections and disabling features that would render the

data inaccessible.

(g) If all reasonable efforts to preserve a cellular

telephone's or other wireless communications device's evidentiary

state under Subsection (f) have failed and a peace officer

reasonably believes that the device's data is subject to imminent

loss, the officer may extract the data from the device to prevent

that loss. This subsection does not authorize the review of the

extracted data.

(h) A cellular telephone or other wireless communications

device may be transported to another county in the state as provided

by Article 18.10(c) to preserve or extract data from the device.

(i) Data preserved or extracted under Subsection (f) or (g)

may not be reviewed except under a warrant issued under this article

or as otherwise authorized by law.

(j) After an extraction under Subsection (g), a peace

officer must apply for a warrant to search a cellular telephone or

other wireless communications device as soon as practicable. Until

a warrant is issued or other lawful authority to review the data is

established, the extracted data shall be sealed and access to the

data documented. If a judge finds that the circumstance

authorizing the extraction did not occur and declines to issue the

warrant, the extracted data and any evidence obtained from the

extracted data are not admissible in a criminal action.

SECTION 2. Article 18.10, Code of Criminal Procedure, is

amended by adding Subsection (c) to read as follows:

(c) For the purposes of complying with this article, a

cellular telephone or other wireless communications device that has

been lawfully seized may be removed from the county in which the

device was seized, transported to any county in this state that

possesses digital forensics capabilities, and returned to the

county in which the warrant was issued, without a court order. The

device may be searched and the data on the device preserved or

extracted as provided by Article 18.0215.

SECTION 3. The change in law made by this Act applies only

to a warrant issued, or a preservation or extraction of data

performed, on or after the effective date of this Act. A warrant

issued, or a preservation or extraction of data performed, before

the effective date of this Act is governed by the law in effect on

the date the warrant was issued or the action was performed, and the

former law is continued in effect for that purpose.

SECTION 4. This Act takes effect September 1, 2027.