Representative Marc K. Roberts proposes the following substitute bill:


1     
FORCIBLE ENTRY AND WARRANTS AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Marc K. Roberts

5     
Senate Sponsor: Daniel W. Thatcher

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to entry of officers to conduct search or make
10     arrest.
11     Highlighted Provisions:
12          This bill:
13          ▸     requires supervisory officials to conduct reviews;
14          ▸     requires certain information in affidavits requesting specific warrants;
15          ▸     addresses when forceable entry may or may not be used; and
16          ▸     makes technical changes.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          77-7-8, as last amended by Laws of Utah 2015, Chapter 317
24     

25     Be it enacted by the Legislature of the state of Utah:
26          Section 1. Section 77-7-8 is amended to read:
27          77-7-8. Forcible entry to conduct search or make arrest -- Conditions requiring a
28     warrant.
29          (1) As used in this section:
30          (a) "Daytime hours" and "nighttime hours" mean the same as those terms are described
31     in Subsection 77-7-5(3).
32          (b) "Supervisory official" means a county sheriff or chief deputy sheriff, a police chief
33     or assistant police chief, the officer in charge of an investigative task force or the assistant
34     officer in charge, or the attorney general or an assistant attorney general.
35          [(1)] (2) (a) Subject to [Subsection (2), a peace] the other provisions of this section, an
36     officer when making an arrest may forcibly enter the building in which the person to be
37     arrested is located, or in which there is probable cause for believing the person to be.
38          (b) Before making the forcible entry, the officer shall:
39          (i) identify himself or herself as [a law enforcement] an officer;
40          (ii) demand admission;
41          (iii) wait a reasonable period of time for an occupant to admit access; and
42          (iv) explain the purpose for which admission is desired.
43          (c) (i) The officer need not give a demand and explanation, or identify himself or
44     herself, before making a forcible entry under the exceptions in Section 77-7-6 or [where] when
45     there is probable cause to believe evidence will be easily or quickly destroyed.
46          (ii) The officer shall identify himself or herself and state the purpose for entering the
47     premises as soon as practicable after entering the premises.
48          (d) The officer may use only that force [which] that is reasonable and necessary to
49     effectuate forcible entry under this section.
50          [(2)] (3) [If] Subject to Subsections (4) and (5), if the building to be entered under
51     Subsection [(1)] (2) appears to be a private residence or the officer knows the building is a
52     private residence, and if there is no consent to enter or there are no exigent circumstances, the
53     officer shall, before entering the building:
54          (a) obtain an arrest or search warrant if the building is the residence of the person to be
55     arrested; or
56          (b) obtain a search warrant if the building is a residence, but not the residence of the
57     person whose arrest is sought.
58          (4) Before seeking a warrant from a judge or magistrate pursuant to Subsection (3), a
59     supervisory official shall, using the officer's affidavit and other relevant information,
60     independently perform a risk assessment to evaluate the totality of the circumstances and
61     ensure reasonable intelligence gathering efforts have been made.
62          (5) (a) The affidavit for a warrant seeking forcible entry shall describe:
63          (i) why the officer believes the suspect is unable to be detained, or the residence
64     searched, using less invasive or less confrontational methods; and
65          (ii) investigative activities that have been undertaken to ensure that the correct building
66     is identified and that potential harm to innocent third parties, the building, and officers may be
67     minimized.
68          (b) Notwithstanding Subsection 77-7-5(2)(a), and pursuant to Rule 40 of the Utah
69     Rules of Criminal Procedure, a warrant shall be served during daytime hours unless the
70     affidavit states sufficient grounds to believe a search is necessary during nighttime hours.
71          [(3)] (6) (a) Notwithstanding any other provision of this chapter, forcible entry under
72     this section may not be made solely for the alleged:
73          [(a)] (i) possession or use of a controlled substance under Section 58-37-8, with or
74     without the intent to distribute; or
75          [(b) the] (ii) possession of drug paraphernalia as defined in Section 58-37a-3.
76          (b) Forcible entry may be made for distribution of a controlled substance.