Bill Summary – FastDemocracy

Session of 2024
                             HOUSE BILL No. 2497
        By Representatives V. Miller, Probst, Carlin, Carmichael, Carr, Featherston,
        Haskins, Hougland, Martinez, Melton, Meyer, D. Miller, S. Miller, Neighbor,
                   Poskin, S. Ruiz, Sawyer, Stogsdill, Woodard and Xu
                                           1-11

 AN ACT concerning criminal procedure; relating to search warrants;
   providing that district magistrate judges do not have the power to issue
   search warrants; amending K.S.A. 22-2202, 22-2502, 22-2503, 22-
   2504, 22-2506 and 22-2512 and repealing the existing sections.
 5
 Be it enacted by the Legislature of the State of Kansas:
     Section 1. K.S.A. 22-2202 is hereby amended to read as follows: 22-
 2202. (a) "Absconds from supervision" means knowingly avoiding
 supervision or knowingly making the defendant's whereabouts unknown to
 the defendant's supervising court services officer or community
 correctional services officer.
     (b) "Appellate court" means the supreme court or court of appeals,
 depending on the context in which the term is used and the respective
 jurisdiction of those courts over appeals in criminal cases, as provided in
 K.S.A. 22-3601, and amendments thereto.
     (c) "Appearance bond" means an agreement, with or without security,
 entered into by a person in custody by which the person is bound to
 comply with the conditions specified in the agreement.
     (d) "Arraignment" means the formal act of calling the defendant
 before a court having jurisdiction to impose sentence for the offense
 charged, informing the defendant of the offense with which the defendant
 is charged, and asking the defendant whether the defendant is guilty or not
 guilty.
     (e) "Arrest" means the taking of a person into custody in order that
 the person may be forthcoming to answer for the commission of a crime.
 The giving of a notice to appear is not an arrest.
     (f) "Bail" means the security given for the purpose of insuring
 compliance with the terms of an appearance bond.
     (g) "Bind over" means require a defendant to appear and answer
 before a district judge having jurisdiction to try the defendant for the
 felony with which the defendant is charged.
     (h) "Charge" means a written statement presented to a court accusing
 a person of the commission of a crime and includes a complaint,
 information or indictment.
     HB 2497                             2
     (i) "Complaint" means a written statement under oath of the essential
 facts constituting a crime, except that a citation or notice to appear issued
 by a law enforcement officer pursuant to and in compliance with K.S.A. 8-
 2106, and amendments thereto, or a citation or notice to appear issued
 pursuant to and in compliance with K.S.A. 32-1049, and amendments
 thereto, shall be deemed a valid complaint if it is signed by the law
 enforcement officer.
     (j) "Custody" means the restraint of a person pursuant to an arrest or
 the order of a court or magistrate.
     (k) "Detention" means the temporary restraint of a person by a law
 enforcement officer.
     (l) "Indictment" means a written statement, presented by a grand jury
 to a court, which charges the commission of a crime.
     (m) "Information" means a verified written statement signed by a
 county attorney or other authorized representative of the state of Kansas
 presented to a court, which charges the commission of a crime. An
 information verified upon information and belief by the county attorney or
 other authorized representative of the state of Kansas shall be sufficient.
     (n) "Judge" means an officer having power to issue a search warrant
 and includes justices of the supreme court, judges of the court of appeals
 and district judges as defined in K.S.A. 20-302, and amendments thereto.
 "Judge" does not include district magistrate judges as defined in K.S.A.
 20-302b, and amendments thereto.
     (o) "Law enforcement officer" means any person who by virtue of
 office or public employment is vested by law with a duty to maintain
 public order or to make arrests for violation of the laws of the state of
 Kansas or ordinances of any municipality thereof or with a duty to
 maintain or assert custody or supervision over persons accused or
 convicted of crime, and includes court services officers, community
 corrections officers, parole officers and directors, security personnel and
 keepers of correctional institutions, jails or other institutions for the
 detention of persons accused or convicted of crime, while acting within the
 scope of their authority.
     (o)(p) "Magistrate" means an officer having power to issue a warrant
 for the arrest of a person charged with a crime and includes justices of the
 supreme court, judges of the court of appeals and judges of district courts.
     (p)(q) "Notice to appear" means a written request, issued by a law
 enforcement officer, that a person appear before a designated court at a
 stated time and place.
     (q)(r) "Preliminary examination" means a hearing before a magistrate
 on a complaint or information to determine if a felony has been committed
 and if there is probable cause to believe that the person charged committed
 such felony.
     HB 2497                              3
     (r)(s) "Prosecuting attorney" means any attorney who is authorized by
 law to appear for and on behalf of the state of Kansas in a criminal case,
 and includes the attorney general, an assistant attorney general, the county
 or district attorney, an assistant county or district attorney and any special
 prosecutor whose appearance is approved by the court. In the case of
 prosecution for violation of a city ordinance, "prosecuting attorney" means
 the city attorney or any assistant city attorney.
     (s)(t) "Search warrant" means a written order made by a magistrate
 judge directed to a law enforcement officer commanding the officer to
 search the premises described in the search warrant and to seize property
 described or identified in the search warrant.
     (t)(u) "Summons" means a written order issued by a magistrate
 directing that a person appear before a designated court at a stated time
 and place and answer to a charge pending against the person.
     (u)(v) "Warrant" means a written order made by a magistrate directed
 to any law enforcement officer commanding the officer to arrest the person
 named or described in the warrant.
     Sec. 2. K.S.A. 22-2502 is hereby amended to read as follows: 22-
 2502. (a) A search warrant shall be issued only upon the oral or written
 statement, including those conveyed or received by electronic
 communication, of any person under oath or affirmation which states facts
 sufficient to show probable cause that a crime has been, is being or is
 about to be committed and which particularly describes a person, place or
 means of conveyance to be searched and things to be seized. Any
 statement which is made orally shall be either taken down by a certified
 shorthand reporter, sworn to under oath and made part of the application
 for a search warrant, or recorded before the magistrate judge from whom
 the search warrant is requested and sworn to under oath. Any statement
 orally made shall be reduced to writing as soon thereafter as possible. If
 the magistrate judge is satisfied that grounds for the application exist or
 that there is probable cause to believe that they exist, the magistrate judge
 may issue a search warrant for:
     (1) The search or seizure of the following:
     (A) Anything that can be seized under the fourth amendment of the
 United States constitution;
     (B) anything which has been used in the commission of a crime, or
 any contraband or any property which constitutes or may be considered a
 part of the evidence, fruits or instrumentalities of a crime under the laws of
 this state, any other state or of the United States. The term "fruits" as used
 in this act shall be interpreted to include any property into which the thing
 or things unlawfully taken or possessed may have been converted;
     (C) any person who has been kidnapped in violation of the laws of
 this state or who has been kidnapped in another jurisdiction and is now
     HB 2497                              4
 concealed within this state;
     (D) any human fetus or human corpse;
     (E) any biological material, DNA, cellular material, blood, hair or
 fingerprints;
     (F) any person for whom a valid felony arrest warrant has been issued
 in this state or in another jurisdiction; or
     (G) (i) any information concerning the user of an electronic
 communication service; any information concerning the location of
 electronic communications systems, including, but not limited to, towers
 transmitting cellular signals involved in any wire communication; and any
 other information made through an electronic communications system; or
     (ii) the jurisdiction granted in this paragraph shall extend to
 information held by entities registered to do business in the state of
 Kansas, submitting to the jurisdiction thereof, and entities primarily
 located outside the state of Kansas if the jurisdiction in which the entity is
 primarily located recognizes the authority of the magistrate judge to issue
 the search warrant; or
     (2) the installation, maintenance and use of a tracking device.
     (b) (1) The search warrant under subsection (a)(2) shall authorize the
 installation and use of the tracking device to track and collect tracking data
 relating to a person or property for a specified period of time, not to
 exceed 30 days from the date of the installation of the device.
     (2) The search warrant under subsection (a)(2) may authorize the
 retrieval of the tracking data recorded by the tracking device during the
 specified period of time for authorized use of such tracking device within a
 reasonable time after the expiration of such warrant, for good cause
 shown.
     (3) The magistrate judge may, for good cause shown, grant one or
 more extensions of a search warrant under subsection (a)(2) for the use of
 a tracking device, not to exceed 30 days each.
     (c) Before ruling on a request for a search warrant, the magistrate
 judge may require the affiant to appear personally and may examine under
 oath the affiant and any witnesses that the affiant may produce. Such
 proceeding shall be taken down by a certified shorthand reporter or
 recording equipment and made part of the application for a search warrant.
     (d) For a warrant executed prior to July 1, 2014, affidavits or sworn
 testimony in support of the probable cause requirement of this section or
 search warrants for tracking devices shall not be made available for
 examination without a written order of the court, except that such
 affidavits or testimony when requested shall be made available to the
 defendant or the defendant's counsel for such disposition as either may
 desire.
     (e) (1) For a warrant executed on or after July 1, 2014, affidavits or
     HB 2497                              5
 sworn testimony in support of the probable cause requirement of this
 section or search warrants for tracking devices shall not be open to the
 public until the warrant has been executed. After the warrant has been
 executed, such affidavits or sworn testimony shall be made available to:
     (A) The defendant or the defendant's counsel, when requested, for
 such disposition as either may desire; and
     (B) any person, when requested, in accordance with the requirements
 of this subsection.
     (2) Any person may request that affidavits or sworn testimony be
 disclosed by filing such request with the clerk of the court. The clerk of the
 court shall promptly notify the defendant or the defendant's counsel, the
 prosecutor and the magistrate judge that such request was filed. The
 prosecutor shall promptly notify any victim.
     (3) Within five business days after receiving notice of a request for
 disclosure from the clerk of the court, the defendant or the defendant's
 counsel and the prosecutor may submit to the magistrate judge, under seal,
 either:
     (A) Proposed redactions, if any, to the affidavits or sworn testimony
 and the reasons supporting such proposed redactions; or
     (B) a motion to seal the affidavits or sworn testimony and the reasons
 supporting such proposed seal.
     (4) The magistrate judge shall review the requested affidavits or
 sworn testimony and any proposed redactions or motion to seal submitted
 by the defendant, the defendant's counsel or the prosecutor. The magistrate
 judge shall make appropriate redactions, or seal the affidavits or sworn
 testimony, as necessary to prevent public disclosure of information that
 would:
     (A) Jeopardize the physical, mental or emotional safety or well-being
 of a victim, witness, confidential source or undercover agent, or cause the
 destruction of evidence;
     (B) reveal information obtained from a court-ordered wiretap or from
 a search warrant for a tracking device that has not expired;
     (C) interfere with any prospective law enforcement action, criminal
 investigation or prosecution;
     (D) reveal the identity of any confidential source or undercover agent;
     (E) reveal confidential investigative techniques or procedures not
 known to the general public;
     (F) endanger the life or physical safety of any person;
     (G) reveal the name, address, telephone number or any other
 information which specifically and individually identifies the victim of any
 sexual offense described in article 35 of chapter 21 of the Kansas Statutes
 Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas
 Statutes Annotated or K.S.A. 21-6419 through 21-6422, and amendments
     HB 2497                              6
 thereto;
     (H) reveal the name of any minor;
     (I) reveal any date of birth, personal or business telephone number,
 driver's license number, nondriver's identification number, social security
 number, employee identification number, taxpayer identification number,
 vehicle identification number or financial account information; or
     (J) constitute a clearly unwarranted invasion of personal privacy. As
 used in this subparagraph, "clearly unwarranted invasion of personal
 privacy" means revealing information that would be highly offensive to a
 reasonable person and is totally unrelated to the alleged crime that resulted
 in the issuance of the search warrant, including information totally
 unrelated to the alleged crime that may pose a risk to a person or property
 and is not of legitimate concern to the public. The provisions of this
 subparagraph shall only be used to redact and shall not be used to seal
 affidavits or sworn testimony.
     (5) Within five business days after receiving proposed redactions or a
 motion to seal from the defendant, the defendant's counsel or the
 prosecutor, or within 10 business days after receiving notice of a request
 for disclosure, whichever is earlier, the magistrate judge shall either:
     (A) Order disclosure of the affidavits or sworn testimony with
 appropriate redactions, if any; or
     (B) order the affidavits or sworn testimony sealed and not subject to
 public disclosure.
     (6) (A) If the magistrate judge orders disclosure of the affidavits or
 sworn testimony with appropriate redactions, if any, to any person in
 accordance with the requirements of this subsection, then such affidavits
 or sworn testimony shall become part of the court record and shall be
 accessible to the public.
     (B) If the magistrate judge orders the affidavits or sworn testimony
 sealed and not subject to public disclosure in accordance with the
 requirements of this subsection, then such affidavits or sworn testimony
 shall become part of the court record that is not accessible to the public.
     (C) Any request for disclosure of affidavits or sworn testimony in
 accordance with the requirements of this subsection shall become part of
 the court record and shall be accessible to the public, regardless of whether
 the magistrate judge orders disclosure with appropriate redactions, if any,
 or sealing of the requested affidavit or sworn testimony.
     (f) As used in this section:
     (1) "Electronic communication" means the use of electronic
 equipment to send or transfer a copy of an original document;
     (2) "electronic       communication       service"     and      "electronic
 communication system" have the meaning mean the same as defined in
 K.S.A. 22-2514, and amendments thereto;
     HB 2497                              7
     (3) "tracking data" means information gathered or recorded by a
 tracking device;
     (4) "tracking device" means an electronic or mechanical device that
 permits a person to remotely determine or track the position or movement
 of a person or object. "Tracking device" includes, but is not limited to, a
 device that stores geographic data for subsequent access or analysis and a
 device that allows for the real-time monitoring of movement; and
     (5) "victim" shall include includes any victim of an alleged crime that
 resulted in the issuance of the search warrant, or, if the victim is deceased,
 th