2013 -- H 5780

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LC01684

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO CRIMINAL PROCEDURE

     Introduced By: Representatives Tanzi, Cimini, Ajello, Valencia, and Blazejewski

     Date Introduced: February 28, 2013

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 12 of the General Laws entitled "CRIMINAL PROCEDURE" is

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hereby amended by adding thereto the following chapter:

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     CHAPTER 5.3

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UNMANNED AERIAL VEHICLES

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     12-5.3-1. Definitions. -- As used in this chapter:

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     (1) "Aggrieved person" means a person about whom information or data were collected

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or obtained by an unmanned aerial vehicle.

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     (2) "Person" means any individual, partnership, association, joint stock company, trust, or

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corporation, whether or not any of the foregoing is an officer, agent, or employee of the United

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States, a state, or a political subdivision of a state.

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     (3) "Unmanned aerial vehicle" means an aircraft that is operated without the possibility of

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direct human intervention from within or on the aircraft.

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     12-5.3-2. Use of unmanned aerial vehicles. -- (a) Any use of unmanned aerial vehicles

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shall fully comply with all federal aviation administration requirements and guidelines.

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     (b) Unmanned aerial vehicles shall be acquired only after a public hearing and, for any

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state law enforcement agency, approval by the governor, and for any municipal law enforcement

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agency, approval by the city or town council overseeing that agency seeking such acquisition.

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     (c) Unmanned aerial vehicles shall be used only under the direction of the attorney

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general and in accordance with the procedures contained in this chapter.

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     (d) Unmanned aerial vehicles shall not be equipped with weapons.

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     (e) Except as otherwise provided in this chapter, it shall be unlawful for any state or

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municipal law enforcement agency, or any individual or entity on such agency's behalf, to operate

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an unmanned aerial vehicle, or to disclose or receive information acquired through the operation

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of an unmanned aerial vehicle.

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     (f) It shall not be unlawful under this chapter for any state or municipal law enforcement

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agency, or any individual or entity on such agency's behalf, to operate an unmanned aerial vehicle

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without a court order approved in advance, or to disclose or receive information from such

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operation, if:

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     (1) The unmanned aerial vehicle is used to assist a person in circumstances in which it is

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reasonable to believe that there is an imminent threat to the life or physical safety of that person;

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and

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     (2) The factual basis for the emergency is documented in writing by a supervisory official

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and approved by the attorney general, and is presented to a court of competent jurisdiction as

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soon as practicable, and no later than twenty-four (24) hours after the unmanned aerial vehicle's

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use.

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     (g) Nothing contained herein shall be construed to bar a state or municipal agency, or any

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individual or entity on such agency's behalf from operating an unmanned aerial vehicle, and for

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disclosing information from such operation, if the use of the vehicle and the information or

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evidence derived from such operation is not for any law enforcement, criminal, civil, or

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intelligence-gathering purpose, or otherwise targeted at any individual.

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     (h) Unmanned aerial vehicles used pursuant to subsection (c) or (f) shall be operated in a

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manner to collect data only on the designated target and shall avoid data collection on individuals,

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homes, or areas other than the target. Neither facial recognition nor other biometric matching

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technology may be used on non-target data collected by an unmanned aerial vehicle.

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     12-5.3-3. Application for orders. -- (a) The attorney general, or an assistant attorney

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general specially designated by the attorney general, may apply ex parte to the presiding justice of

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the superior court of competent jurisdiction for an order authorizing the use of unmanned aerial

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vehicles. Each application ex parte for an order must be in writing, subscribed and sworn to by

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the applicant.

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     (b) The application must contain:

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     (1) The identity of the officer making the application;

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     (2) A full and complete statement of the facts and circumstances relied upon by the

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applicant to justify his or her belief that an order should be issued, including:

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     (i) Details as to the particular designated offense that has been, is being, or is about to be

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committed;

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     (ii) A particular description of the location(s) where the unmanned aerial vehicle is

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expected to be deployed;

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     (iii) A particular description of the information sought to be obtained; and

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     (iv) The identity of the person, if known, committing the offense.

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     (3) A full and complete statement as to whether or not other investigative procedures

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have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to

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be too dangerous;

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     (4) A statement of the period of time for which the unmanned aerial vehicle is to be used;

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     (5) A full and complete statement of the facts concerning all previous applications,

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known to the individual making the application, made to the presiding justice of the superior

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court for authorization to use unmanned aerial vehicles involving any of the same persons or

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locations specified in the application, and the action taken by the presiding justice of the superior

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court on each application;

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     (6) An affirmation that the unmanned aerial vehicle shall be operated in a manner to

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collect data only on the designated target; shall avoid data collection on individuals, homes, or

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areas other than the target, and shall not use facial recognition or any other biometric matching

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technology on non-target data collected by the unmanned aerial vehicle; and

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     (7) Where the application is for the extension of an order, a statement setting forth the

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results thus far obtained from the use of the unmanned aerial vehicle, or a reasonable explanation

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of the failure to obtain the results.

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     (c) The presiding justice of the superior court may require the applicant to furnish

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additional testimony or documentary evidence in support of the application.

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     (d) Allegations of fact in the application may be based either upon the personal

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knowledge of the applicant or upon information and belief. If the applicant personally knows the

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fact alleged, it must be so stated. If the facts establishing reasonable cause are derived in whole or

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in part from the statements of persons other than the applicant, the sources of the information and

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belief must be either disclosed or described, and the application must contain facts establishing

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the existence and reliability of the informant, or the reliability of the information supplied by the

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informant. The application must also state, so far as possible, the basis of the informant's

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knowledge or belief. If the applicant's information and belief is derived from tangible evidence or

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recorded oral evidence, a copy or detailed description of the evidence should be annexed to or

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included in the application. Affidavits of persons other than the applicant must be submitted in

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conjunction with the application if they tend to support any fact or conclusion alleged in the

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application. Accompanying affidavits may be based either on personal knowledge of the affiant,

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or information and belief with the source of the information and reason for the belief specified.

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     12-5.3-4. Issuance of orders. -- (a) Upon the application as provided in section 12-5.3-3,

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the presiding justice of the superior court, or the senior associate justice of the superior court

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when the presiding justice shall disqualify himself or herself from entering the order, may enter

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an ex parte order, as required or as modified, authorizing the use of an unmanned aerial vehicle if

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the presiding justice of the superior court determines on the basis of the facts submitted by the

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applicant that:

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     (1) There is probable cause for belief that an individual is committing, has committed, or

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is about to commit a particular designated offense;

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     (2) There is probable cause for belief that relevant information concerning the offender or

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the offense will be obtained through the use of an unmanned aerial vehicle;

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     (3) Normal investigative procedures have been tried and have failed or reasonably appear

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to be unlikely to succeed if tried, or to be too dangerous; and

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     (4) The unmanned aerial vehicle can and will be used and operated in a manner to collect

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data only on the designated target and shall avoid data collection on individuals, homes, or areas

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other than the target.

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     12-5.3-5. Form and content of orders. -- (a) Each order authorizing the use of an

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unmanned aerial vehicle shall specify:

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     (1) The identity, or a particular description of the person, if known, upon whom the

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unmanned aerial vehicle will be used;

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     (2) The nature and location(s) of the areas where the unmanned aerial vehicle may be

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deployed;

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     (3) A particular description of the type of information to be obtained through the use of

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the unmanned aerial vehicle, and a statement of the particular offense to which they relate;

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     (4) The identity of the agency authorized to use the unmanned aerial vehicle; and

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     (5) The period of time during which the use of the unmanned aerial vehicle is authorized.

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     (b) No order entered under this section may authorize the use of an unmanned aerial

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vehicle for any period longer than is necessary to achieve the objective of the authorization, nor

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in any event longer than forty-eight (48) hours. Extensions of an order may be granted, but only

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upon application for an extension made in accordance with section 12-5.3-3 and the court making

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the findings required by section 12-5.3-4. The period of extension shall be no longer than the

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presiding justice of the superior court deems necessary to achieve the purposes for which it was

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granted, and in no event for longer than thirty (30) days. Every order and extension shall contain

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a provision that the authorization to use the unmanned aerial vehicle shall be executed as soon as

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practicable, shall be conducted in such a way as to avoid the collection of any information or data

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on persons or places not the subject of the order, and must terminate upon attainment of the

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authorized objective, or in any event in thirty (30) days.

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     (c) Whenever an order authorizing use of an unmanned aerial vehicle is entered pursuant

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to this chapter, the order may require reports to be made to the presiding justice of the superior

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court who issued the order showing what progress has been made toward achievement of the

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authorized objective and the need for the unmanned aerial vehicle's continued use. These reports

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shall be made at any intervals that the presiding justice of the superior court may require.

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     12-5.3-6. Approval of use of unmanned aerial vehicles. -- (a) An order of approval of

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the use of an unmanned aerial vehicle relating to an offense other than that specified in the order

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of authorization may be issued where the court finds on an application for an order of approval

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submitted in the same manner as an application for authorization as provided in section 12-5.3-3

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that the use was otherwise made in accordance with this chapter. This application shall be made

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as soon as practicable.

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     (b) In addition to any other right to appeal, the state, by the attorney general, shall have

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the right to appeal from a denial of an order of approval made under this section. The appeal shall

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be claimed and taken in the manner provided by law and rule of court for prosecuting appeals in

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civil actions.

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     12-5.3-7. Return of inventory. -- (a) Within a reasonable time but not later than ten (10)

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days after the termination of the period of the order or of extensions of the order, the presiding

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justice of the superior court shall cause to be served on the person named in the order or

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application, and any other parties upon whom information or data was collected, an inventory

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which shall include:

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     (1) Notice of the entry of the order or the application for a denied order of approval;

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     (2) The date of the entry of the order or the denial of the application for an order of

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approval;

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     (3) The period of authorized, approved or disapproved use;

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     (4) The fact that during the period information or data were or were not obtained.

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     (b) The judge, upon the filing of a motion, may in his or her discretion make available to

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the person or the person's counsel for inspection any portions of the intercepted information and

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data, applications, and orders that the judge determines to be in the interest of justice. On an ex

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parte showing of good cause to the judge, the serving of the inventory required by this section

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may be postponed for a period of ten (10) additional days. Any additional extensions shall be for

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no longer than ten (10) days.

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     12-5.3-8. Notice of intention. -- The contents of any information or data derived from

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use of an unmanned aerial vehicle shall not be received in evidence or otherwise disclosed in any

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criminal proceeding unless each party, not less than ten (10) days before the proceeding, has been

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furnished with a copy of the application, order, and inventory under which the collection of

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information was authorized or approved. This ten (10) day period may be waived by the judge if

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he or she finds that it was not possible to furnish the party with the information more than ten

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(10) days before the proceeding and that the party will not be prejudiced by the delay in receiving

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the information.

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     12-5.3-9. Suppression of evidence. -- (a) Any aggrieved person or entity may move to

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suppress the contents of any information or data derived from the use of an unmanned aerial

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vehicle on the grounds that:

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     (1) The information was unlawfully obtained;

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     (2) The order under which it was intercepted is insufficient on its face;

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     (3) The unmanned aerial vehicle was not used in conformity with the order; or

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     (4) Service was not made as provided in section 12-5.3-8.

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     (b) A motion under this section shall be made before the trial, unless there was no

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opportunity to make the motion or the person was not aware of the grounds of the motion. If the

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motion is granted, the contents of the information or other evidence derived from the unmanned

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aerial vehicle shall be treated as having been obtained in violation of this chapter. The judge,

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upon the filing of the motion by the aggrieved person, may in his or her discretion make available

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to the aggrieved person or the person's counsel for inspection any portions of the information or

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evidence derived from them that the judge determines to be in the interests of justice.

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     (c) If the motion shall be made before any court or judge other than the presiding justice

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of the superior court, the motion shall be transferred to the presiding justice of the superior court

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or to an associate justice of the superior court who shall be designated by the presiding justice, or

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by the associate justice in charge of the criminal calendar in Providence county whenever the

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presiding justice shall deem it necessary to disqualify himself or herself, for hearing and

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determination. No motion under this section shall be heard or determined by a district court in

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preliminary proceedings or otherwise.

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     (d) In addition to any other right of appeal, the state, by the attorney general, shall have

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the right to appeal from an order allowing a motion to suppress made under this section. The

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appeal shall be taken within thirty (30) days after the date of allowance of the motion to suppress.

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If the motion to suppress is allowed prior to trial, the appeal shall be decided prior to trial. If the

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motion to suppress is allowed during trial and the attorney general shall claim an appeal, the

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evidence shall be admitted at trial, and the question of admissibility reserved for the supreme

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court.

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     12-5.3-10. Civil remedy. -- (a) Any person who is surveilled or whose location or other

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information or data are intercepted, disclosed, or used in violation of this chapter shall have a

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civil cause of action against any person who intercepts, discloses, or uses the communications,

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and shall be entitled to recover from that person:

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     (1) Actual damages, but not less than liquidated damages, computed at the rate of one

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hundred dollars ($100) per day for each day of violation, or one thousand dollars ($1,000),

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whichever is higher;

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     (2) Punitive damages; and

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     (3) Reasonable attorneys' fees and other litigation disbursements reasonably incurred.

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     (b) Good faith reliance on a court order issued under this chapter shall constitute a

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complete defense to any civil or criminal action brought under this section or any other law.

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     12-5.3-11. Data retention. -- (a) No data collected on an individual, home, or area other

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than the target that justified deployment may be used, copied, or disclosed for any purpose. Such

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data shall be deleted as soon as possible, and in no event later than twenty-four (24) hours after

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collection.

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     (b) Whenever any state or municipal law enforcement agency, or any individual or entity

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on such agency's behalf, uses an unmanned aerial vehicle, no information acquired and no

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evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding

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in or before any court, agency, or other authority of the state or a political subdivision thereof if

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the disclosure of that information would be in violation of this chapter.

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     12-5.3-12. Reporting. -- (a) In March of each year, the attorney general shall report to

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the general assembly and make public on its website the following information regarding the use

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of unmanned aerial vehicles for the preceding calendar year:

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     (1) The number of times an unmanned aerial vehicle was used, including the justification

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for each deployment, and the approximate number of persons upon whom information was

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gathered during each use;

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     (2) The number and types of uses of unmanned aerial vehicles for reasons other than

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criminal investigations, including a description of the results of the use in each instance;

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     (3) The frequency and type of data collected on individuals or areas other than targets;

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     (4) The number of arrests resulting from information gathered and the offenses for which

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arrests were made;

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     (5) The number of motions to suppress made with respect to such information, and the

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number granted or denied; and

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     (6) The number of convictions resulting from such information and the offenses for

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which the convictions were obtained.

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     SECTION 2. This act shall take effect upon passage.

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LC01684

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL PROCEDURE

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     This act would regulate the use of unmanned aerial vehicles, and would delete the

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process by which applications for use of such vehicles are made.

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     This act would take effect upon passage.

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LC01684

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