The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: SB 144
INTRODUCER: Senators Brandes and Rodrigues
SUBJECT: Searches of Cellular Phones and Other Electronic Devices
DATE: March 9, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Cellon Jones CJ Favorable
2. Bond Cibula JU Favorable
3. RC
I. Summary:
SB 144 amends chs. 933 and 934, F.S., relating to search warrants and the security of
communications, to address privacy issues related to the use of communication technology and
the contents of stored electronic communications.
The bill amends ch. 933, F.S., by:
Codifying the state constitutional provision that extends the security against unreasonable
searches or seizures to the interception of private communications by any means; and
Expanding the grounds for issuance of a search warrant to include that the content within
certain communication devices constitutes evidence relevant to proving a felony.
The bill amends ch. 934, F.S., by:
Providing legislative intent;
Defining the terms “historical location data,” “microphone-enabled household device,”
“mobile tracking device,” “real-time location tracking,” and “portable electronic
communication device”;
Amending the definition of oral communication to include the use of a microphone-enabled
household device;
Amending the definition of electronic communication, adding the terms “communication
tower” and “satellite” to the ways in which the transfer of signs, signals, writing, images,
sounds, data, or intelligence of any nature can be transmitted; removing the exception of “any
communication from an electronic or mechanical device which permits the tracking of the
movement of a person or an object” from the definition;
Requiring a search warrant for the interception of wire, oral, or electronic communications,
the use of a tracking device, or historical location data;
Setting forth time constraints for use of a tracking device, and when notice must be provided
to the person tracked;
BILL: SB 144 Page 2
Allowing for a delayed application for a search warrant when emergency tracking is
necessary due to emergency circumstances; and
Clarifying that certain conduct relating to access to stored communications is not a criminal
offense.
The bill is effective July 1, 2021.
II. Present Situation:
The Fourth Amendment of the United States Constitution guarantees:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures; and
No warrants shall issue without probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.1
Under Fourth Amendment jurisprudence, a search occurs whenever the government intrudes
upon an area in which a person has a reasonable expectation of privacy, such as one’s home.2 A
warrantless search is generally per se unreasonable,3 unless an exception to the warrant
requirement applies.4
The Florida Constitution similarly protects the people against unreasonable searches and
seizures, and that right is construed in conformity with the Fourth Amendment of the U.S.
Constitution.5 The Florida Constitution also explicitly protects against the “unreasonable
interception of private communications by any means.”6
Both the Florida and federal constitutions require a search warrant to be supported by probable
cause,7 as established by oath or affirmation, and to particularly describe the place to be searched
and the persons or things to be seized.8
Advancing technology has presented law enforcement with new means of investigation and
surveillance, and correspondingly has presented the courts with new questions about the Fourth
Amendment implications of this technology.9
1
U.S. CONST. AMEND. IV.
2
Katz v. United States, 389 U.S. 347 (1967).
3
United States v. Harrison, 689 F.3d 301, 306 (3d Cir. 2012).
4
Examples of exceptions to the warrant requirement include exigent circumstances, searches of motor vehicles, and searches
incident to arrest.
5
FLA. CONST. art. I, s. 12.
6
“No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places
to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of
evidence to be obtained.” Id.
7
Probable cause is defined “in terms of facts and circumstances ‘sufficient to warrant a prudent man in believing that the
(suspect) had committed or was committing an offense’” Gerstein v. Pugh, 420 U.S. 103, 111-112 (1975), quoting Beck v.
Ohio, 379 U.S. 89, 91 (1964).
8
FLA. CONST. art. I, s. 12 and supra note 1.
9
See United States v. Jones, 565 U.S. 400 (2012), where, in a 5-4 decision the Court found (in a narrow holding eschewing
the “reasonable expectation of privacy” analysis most often used by the Court) that attaching a GPS real-time tracker on the
suspect’s vehicle for the purpose of tracking his whereabouts was a “trespass” upon his “effects” by the Government and
therefore a warrant is required; Smallwood v. State, 113 So.3d 724, 741 (Fla. 2013), in which the Court, in what it called a
BILL: SB 144 Page 3
Chapter 933, F.S., Search Warrants
Chapter 933, F.S., contains grounds related to when and why a search warrant may be issued to a
law enforcement officer by a judge authorizing the search and seizure of evidence, and the
procedures for executing the search warrant.10
The issuance of a search warrant is based upon probable cause. An application under oath to a
judge for a search warrant must “set forth the facts tending to establish the grounds of the
application or probable cause for believing that they exist.”11 The application must particularly
describe the place to be searched and the person and thing to be seized.12 If the judge finds that
probable cause exists for the issuance of the search warrant, the judge must issue the search
warrant.13
The grounds for the issuance of a search warrant include:
When the property has been stolen or embezzled in violation of law;
When any property has been used:
o As a means to commit any crime;
o In connection with gambling, gambling implements and appliances; or
o In violation of s. 847.011, F.S., or other laws in reference to obscene prints and literature;
When any property constitutes evidence relevant to proving that a felony has been
committed;
When any property is being held or possessed:
o In violation of any of the laws prohibiting the manufacture, sale, and transportation of
intoxicating liquors;
o In violation of the fish and game laws;
o In violation of the laws relative to food and drug; or
o In violation of the laws relative to citrus disease pursuant to s. 581.184, F.S.; or
When the laws in relation to cruelty to animals, as provided in ch. 828, F.S., have been or are
violated in any particular building or place.14
A search warrant may also be issued for the search for and seizure of “any papers or documents
used as a means of or in aid of the commission of any offense against the laws of the state.”15
Section 933.18, F.S., limits the grounds for the issuance of a search warrant for a private
decision “narrowly limited to the legal question and facts with which we were presented,” decided that for a search incident
to arrest of the contents of a suspect’s cell phone, a warrant is required if there are no search incident to arrest justifications
(officer protection or evidence preservation) for searching the contents; Tracey v. State, 152 So.3d 504 (Fla. 2014), a case
involving real-time cell site location information, where the Court determined that the use of Tracey’s cell site location
information to track him in real-time was a search for which probable cause was required; Carpenter v. United States,
138 S.Ct. 2206 (2018), found that obtaining a court order, rather than a warrant requiring a showing of probable cause, to
access historical cell-site records implicates the Fourth Amendment therefore the Government will generally need a warrant.
10
Sections 933.01- 933.19, F.S.
11
Section 933.06, F.S.
12
Section 933.04, F.S.
13
Section 933.07, F.S.
14
Section 933.02(1)-(5), F.S.
15
Section 933.02, F.S.
BILL: SB 144 Page 4
dwelling to particular circumstances. No search warrant may be issued for a private dwelling
under ch. 933, F.S., or any other law of the state unless:
It is being used for the unlawful sale, possession, or manufacture of intoxicating liquor;
Stolen or embezzled property is contained therein;
It is being used to carry on gambling;
It is being used to perpetrate frauds and swindles;
The law relating to narcotics or drug abuse is being violated therein;
A weapon, instrumentality, or means by which a felony has been committed, or evidence
relevant to proving said felony has been committed, is contained therein;
One or more of the following child abuse offenses is being committed there:
o Interference with custody, in violation of s. 787.03, F.S.;
o Commission of an unnatural and lascivious act with a child, in violation of s. 800.02,
F.S.; or
o Exposure of sexual organs to a child, in violation of s. 800.03, F.S.
It is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel,
boardinghouse, or lodginghouse;
It is being used for the unlawful sale, possession, or purchase of wildlife, saltwater products,
or freshwater fish being unlawfully kept therein;
The laws in relation to cruelty to animals, as provided in ch. 828, F.S., have been or are being
violated therein; or
An instrumentality or means by which sexual cyberharassment has been committed in
violation of s. 784.049, F.S., or evidence relevant to proving that sexual cyberharassment has
been committed in violation of s. 784.049, F.S., is contained therein.16
After a law enforcement officer executes a search warrant, he or she must then bring the property
seized and any person arrested in connection with the property before the judge or another court
having jurisdiction of the offense.17 A copy of the search warrant and an inventory of any
property seized during the execution of the warrant must either be delivered to the person whose
property is the subject of the search warrant, or may be left upon the premises if no one is
there.18 The search warrant and a sworn copy of any required inventory must be returned to the
judge.19
Chapter 934, F.S., Security of Communications; Surveillance – Interception of Wire, Oral,
or Electronic Communications
Sections 934.03-934.09, F.S., govern the interception of wire, oral, or electronic
communications. “Intercept” is defined as the aural or other acquisition of the contents of any
wire, electronic, or oral communication through the use of any electronic, mechanical, or other
device.20 These sections of law are patterned after federal law, and address the relationships
16
Section 933.18, F.S.
17
Section 933.07(1), F.S.
18
Section 933.11, F.S.
19
Section 933.12, F.S.
20
Section 934.02(3), F.S.
BILL: SB 144 Page 5
between citizens, communications service providers, and investigative and law enforcement
officers with respect to the obtainment and use of wire, oral, or electronic communications.21
Intentionally intercepting another person’s wire, oral, or electronic communication is generally
prohibited under s. 934.03, F.S. However, under circumstances where a communications service
provider is served with a court order, the service provider is allowed to provide information,
facilities, or technical assistance to a person who is authorized to intercept wire, oral, or
electronic communications.22 If a person’s wire or oral communications are intercepted under
circumstances not permitted in ss. 934.03-934.09, F.S., none of the content or evidence derived
from the content may be used as evidence.23
The Governor, Attorney General, statewide prosecutor, or any state attorney can authorize a law
enforcement agency to apply to a judge for a court order permitting the interception of wire, oral,
or electronic communications.24 Intercepting the communication is authorized when the
interception may provide or has provided evidence of the commission of the crimes enumerated
in s. 934.07(1), F.S.25
Section 934.09, F.S., contains the procedures related to the interception of wire, oral, or
electronic communications. The procedures include what the application for a court order for the
interception must contain, the time limitations for the interception, extensions of time, notice to
the person whose communication has been intercepted, and special procedures in emergency
situations.
To issue an order authorizing the interception, a court must determine that there is probable
cause for belief that an individual is committing, has committed, or is about to commit an offense
as listed in s. 934.07, F.S., and that there is probable cause for belief that particular
communications concerning that offense will be obtained through such interception.26
21
Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. s. 2510-22. The ECPA updated the Federal Wiretap
Act of 1968, which addressed interception of conversations using “hard” telephone lines, but did not apply to interception of
computer and other digital and electronic communications. See U.S. Department of Justice, Office of Justice Programs,
Bureau of Justice Assistance, Justice Information Sharing, Privacy & Civil Liberties (April 23, 2019), available at
https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1285 (last viewed Jan. 21, 2021).
22
Section 934.03(2)(a)2., F.S.
23
The content of the wire or oral communications or evidence derived from the content may not be admitted as evidence in
any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body,
legislative committee, or other authority of the state, or a political subdivision thereof. Section 934.06, F.S.
24
Section 934.07(1), F.S.
25
The crimes listed in s. 934.07(1)(a), F.S., are murder, kidnapping, aircraft piracy, arson, gambling, robbery, burglary, theft,
dealing in stolen property, criminal usury, bribery, or extortion; any felony violation of ss. 790.161-790.166, F.S. (offenses
for destructive devices); inclusive; any violation of s. 787.06, F.S. (human trafficking); any violation of ch. 893, F.S. (drug
abuse prevention and control); any violation of the provisions of the Florida Anti-Fencing Act; any violation of ch. 895, F.S.,
(offenses concerning racketeering and illegal debts); any violation of ch. 896, F.S. (offenses related to financial transactions);
any violation of ch. 815, F.S. (computer-related crimes); any violation of ch. 847, F.S. (offenses related to obscenity); any
violation of s. 827.071. F.S. (sexual performance by a child); any violation of s. 944.40, F.S. (offenses related to escape); or
any conspiracy or solicitation to commit any violation of the laws of this state relating to the crimes listed.
Section 934.07(1)(b), F.S., authorizes the FDLE to seek a court order to intercept wire, oral, or electronic communications
when the interception may provide or has provided evidence of the commission of any offense that may be an act of terrorism
or in furtherance of an act of terrorism or evidence of any conspiracy or solicitation to commit any such violation.
26
Section 934.09(3), F.S.
BILL: SB 144 Page 6
Section 934.10, F.S., contains the civil remedies available to a person whose wire, oral, or
electronic communication is intercepted, disclosed, or used in violation of ss. 934.03-934.09,
F.S.
Advancing Technology - Location Tracking
Cell phones, smartphones, laptops, and tablets are all mobile devices that can be located
whenever they are