1     
FORCIBLE ENTRY AND WARRANTS AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Craig Hall

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to the forcible entry of an officer into a building.
10     Highlighted Provisions:
11          This bill:
12          ▸     amends the requirements an officer must undertake before a forcible entry;
13          ▸     restricts when a forcible entry can be made without notice;
14          ▸     requires supervisory officials to conduct a review of a request for forcible entry;
15          ▸     requires certain information in affidavits requesting specific warrants;
16          ▸     addresses when forcible entry may or may not be used; and
17          ▸     makes technical changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          77-7-5, as last amended by Laws of Utah 2019, Chapter 406
25          77-7-8, as last amended by Laws of Utah 2015, Chapter 317
26          77-23-210, as last amended by Laws of Utah 2018, Chapter 281
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 77-7-5 is amended to read:
30          77-7-5. Issuance of summons or warrant -- Time and place arrests may be made
31     -- Contents of warrant or summons -- Responsibility for transporting prisoners -- Court
32     clerk to dispense restitution for transportation.
33          (1) As used in this section:
34          (a) daytime hours are the hours of 6 a.m. to 10 p.m.; and
35          (b) nighttime hours are the hours after 10 p.m. and before 6 a.m.
36          [(1)] (2) A magistrate may issue a warrant for arrest in lieu of a summons for the
37     appearance of the accused only upon finding:
38          (a) probable cause to believe that the person to be arrested has committed a public
39     offense; and
40          (b) under the Utah Rules of Criminal Procedure, and this section that a warrant is
41     necessary to:
42          (i) prevent risk of injury to a person or property;
43          (ii) secure the appearance of the accused; or
44          (iii) protect the public safety and welfare of the community or an individual.
45          [(2)] (3) If the offense charged is:
46          (a) a felony, the arrest upon a warrant may be made at any time of the day or night; or
47          (b) a misdemeanor, the arrest upon a warrant can be made [at night] during nighttime
48     hours only if:
49          (i) the magistrate has endorsed authorization to do so on the warrant;
50          (ii) the person to be arrested is upon a public highway, in a public place, or in a place
51     open to or accessible to the public; or
52          (iii) the person to be arrested is encountered by a peace officer in the regular course of
53     that peace officer's investigation of a criminal offense unrelated to the misdemeanor warrant for
54     arrest.
55          [(3) For the purpose of Subsection (1):]
56          [(a) daytime hours are the hours of 6 a.m. to 10 p.m.; and]
57          [(b) nighttime hours are the hours after 10 p.m. and before 6 a.m.]
58          (4) (a) If the magistrate determines that the accused must appear in court, the
59     magistrate shall include in the arrest warrant the name of the law enforcement agency in the
60     county or municipality with jurisdiction over the offense charged.
61          (b) (i) The law enforcement agency identified by the magistrate under Subsection (4)(a)
62     is responsible for providing inter-county transportation of the defendant, if necessary, from the
63     arresting law enforcement agency to the court site.
64          (ii) The law enforcement agency named on the warrant may contract with another law
65     enforcement agency to have a defendant transported.
66          (c) (i) The law enforcement agency identified by the magistrate under Subsection (4)(a)
67     as responsible for transporting the defendant shall provide to the court clerk of the court in
68     which the defendant is tried, an affidavit stating that the defendant was transported, indicating
69     the law enforcement agency responsible for the transportation, and stating the number of miles
70     the defendant was transported.
71          (ii) The court clerk shall account for restitution paid under Subsection 76-3-201(5) for
72     governmental transportation expenses and dispense restitution money collected by the court to
73     the law enforcement agency responsible for the transportation of a convicted defendant.
74          (5) The law enforcement agency identified by the magistrate under Subsection (4)(a)
75     shall indicate to the court within 48 hours of the issuance, excluding Saturdays, Sundays, and
76     legal holidays if a warrant issued pursuant to this section is an extradition warrant.
77          (6) The law enforcement agency identified by the magistrate under Subsection (4)(a)
78     shall report any changes to the status of a warrant issued pursuant to this section to the Bureau
79     of Criminal Identification.
80          Section 2. Section 77-7-8 is amended to read:
81          77-7-8. Forcible entry to conduct search or make arrest -- Conditions requiring a
82     warrant.
83          (1) As used in this section:
84          (a) "Daytime hours" means the same as that term is defined in Subsection 77-7-5(1)(a).
85          (b) "Nighttime hours" means the same as that term is defined in Subsection
86     77-7-5(1)(b).
87          (c) "Supervisory official" means a command-level officer within a law enforcement
88     agency.
89          [(1)] (2) (a) Subject to [Subsection (2), a peace] the provisions of this section, an
90     officer when making an arrest may forcibly enter the building in which the person to be
91     arrested is located, or in which there is probable cause for believing the person to be.
92          (b) Before making the forcible entry, the officer shall:
93          (i) identify himself or herself as [a law enforcement] an officer;
94          (ii) knock loudly and demand admission at least three separate times;
95          (iii) wait [a reasonable period of time] at least 30 seconds for an occupant to admit
96     access after knocking and demanding admission for the third time; and
97          (iv) explain the purpose for which admission is desired.
98          (c) (i) The officer need not give a demand and explanation, or identify himself or
99     herself, before making a forcible entry [under the exceptions in Section 77-7-6 or where there
100     is probable cause to believe evidence will be easily or quickly destroyed] when there is an
101     existing, imminent threat of serious bodily injury or death to a person inside the building.
102          (ii) The officer shall identify himself or herself and state the purpose for entering the
103     premises as soon as practicable after entering the premises.
104          (d) The officer may use only that force [which] that is reasonable and necessary to
105     effectuate forcible entry under this section.
106          [(2) If] (3) Subject to Subsections (4) and (5), if the building to be entered under
107     Subsection [(1)] (2) appears to be a private residence or the officer knows the building is a
108     private residence, and if there is no consent to enter or there are no exigent circumstances, the
109     officer shall, before entering the building:
110          (a) obtain an arrest or search warrant if the building is the residence of the person to be
111     arrested; or
112          (b) obtain a search warrant if the building is a residence, but not the residence of the
113     person whose arrest is sought.
114          (4) Before seeking a warrant from a judge or magistrate under Subsection (3), a
115     supervisory official shall, using the officer's affidavit and other relevant information:
116          (a) independently perform a risk assessment to evaluate the totality of the
117     circumstances;
118          (b) ensure reasonable intelligence-gathering efforts have been made; and
119          (c) determine either that there is a sufficient basis to support seeking a warrant or that
120     the officer must continue intelligence-gathering efforts.
121          (5) (a) The affidavit for a warrant seeking forcible entry shall describe:
122          (i) why the officer believes the suspect is unable to be detained, or the residence
123     searched, using less invasive or less confrontational methods; and
124          (ii) investigative activities that have been undertaken to ensure that the correct building
125     is identified and that potential harm to innocent third parties, the building, and officers may be
126     minimized.
127          (b) Notwithstanding Subsection 77-7-5(3)(a), and pursuant to Rule 40 of the Utah
128     Rules of Criminal Procedure, a forcible-entry warrant shall be served during daytime hours
129     unless the affidavit states sufficient grounds to believe a search is necessary during nighttime
130     hours.
131          [(3)] (6) (a) Notwithstanding any other provision of this chapter, forcible entry under
132     this section may not be made solely for the alleged:
133          [(a)] (i) possession or use of a controlled substance under Section 58-37-8, with or
134     without the intent to distribute; or
135          [(b) the] (ii) possession of drug paraphernalia as defined in Section 58-37a-3.
136          (b) Forcible entry may be made for distribution of a controlled substance.
137          Section 3. Section 77-23-210 is amended to read:
138          77-23-210. Force used in executing a search warrant -- When notice of authority
139     is required as a prerequisite.
140          (1) As used in this section:
141          (a) "Daytime hours" means the same as that term is defined in Subsection 77-7-5(1)(a).
142          (b) "Nighttime hours" means the same as that term is defined in Subsection
143     77-7-5(1)(b).
144          (c) "Supervisory official" means a command-level officer within a law enforcement
145     agency.
146          [(1)] (2) (a) [No later than July 1, 2015, any] A law enforcement agency that seeks a
147     warrant under this section shall comply with guidelines and procedures which are, at a
148     minimum, in accordance with state law and model guidelines and procedures recommended by
149     the Utah Peace Officer Standards and Training Council created in Section 53-6-106.
150          (b) Written policies adopted pursuant to this section shall be subject to public
151     disclosure and inspection, in accordance with Title 63G, Chapter 2, Government Records
152     Access and Management Act.
153          [(2)] (3) When a search warrant [has been] is issued authorizing entry into any
154     building, room, conveyance, compartment, or other enclosure, the officer executing the warrant
155     may enter:
156          [(a) if, after giving notice of the officer's authority and purpose, there is no response or
157     the officer is not admitted with reasonable promptness; or]
158          [(b) without notice of the officer's authority and purpose as provided in Subsection
159     (3).]
160          [(3) (a) The officer may enter without notice only if:]
161          [(i) there is reasonable suspicion to believe that the notice will endanger the life or
162     safety of the officer or another person;]
163          [(ii) there is probable cause to believe that evidence may be easily or quickly
164     destroyed; or]
165          [(iii) the magistrate, having found probable cause based upon proof provided under
166     oath that the object of the search may be easily or quickly destroyed, or having found reason to
167     believe that physical harm may result to any person if notice were given, has directed that the
168     officer need not give notice of authority and purpose before entering the premises to be
169     searched under the Rules of Criminal Procedure; or]
170          [(iv) the officer physically observes and documents a previously unknown event or
171     circumstance at the time the warrant is being executed which creates probable cause to believe
172     the object of the search is being destroyed, or creates reasonable suspicion to believe that
173     physical harm may result to any person if notice were given.]
174          (a) if the officer first:
175          (i) identifies himself or herself as an officer;
176          (ii) knocks loudly and demands admission at least three separate times;
177          (iii) waits at least 30 seconds for an occupant to admit access after knocking and
178     demanding admission for the third time; and
179          (iv) explains the purpose for which admission is desired.
180          (b) without the notice described in Subsection (3)(a) if the requirements in Subsection
181     (4) are met.
182          (4) (a) The officer may enter without notice only when there is an existing, imminent
183     threat of serious bodily injury or death to a person inside the enclosure to be searched.
184          (b) The officer shall identify himself or herself and state the purpose for entering the
185     premises as soon as practicable after entering.
186          [(4)] (5) An officer executing a warrant under this section may use only that force
187     which is reasonable and necessary to execute the warrant.
188          [(5)] (6) An officer executing a warrant under this section shall wear readily
189     identifiable markings, including a badge and vest or clothing with a distinguishing label or
190     other writing which indicates that he or she is a law enforcement officer.
191          [(6)] (7) (a) An officer executing a warrant under this section shall comply with the
192     officer's employing agency's body worn camera policy when the officer is equipped with a
193     body-worn camera.
194          (b) The employing agency's policy regarding the use of body-worn cameras shall
195     include a provision that an officer executing a warrant under this section shall wear a
196     body-worn camera when a camera is available, except in exigent circumstances where it is not
197     practicable to do so.
198          [(7)] (8) (a) The officer shall take reasonable precautions in execution of any search
199     warrant to minimize the risks of unnecessarily confrontational or invasive methods which may
200     result in harm to any person.
201          (b) The officer shall minimize the risk of searching the wrong premises by verifying
202     that the premises being searched is consistent with a particularized description in the search
203     warrant, including such factors as the type of structure, the color, the address, and orientation
204     of the target property in relation to nearby structures as is reasonably necessary.
205          (c) Pursuant to Rule 40 of the Utah Rules of Criminal Procedure, a forcible-entry
206     warrant under this section shall be served during daytime hours unless the affidavit states
207     sufficient grounds to believe a search is necessary during nighttime hours.
208          (9) If the enclosure to be entered under Subsection (3) appears to be a private residence
209     or the officer knows the building is a private residence:
210          (a) before seeking a warrant from a judge or magistrate, a supervisory official shall,
211     using the officer's affidavit and other relevant information:
212          (i) independently perform a risk assessment to evaluate the totality of the
213     circumstances;
214          (ii) ensure reasonable intelligence-gathering efforts have been made; and
215          (iii) determine either that there is a sufficient basis to support seeking a warrant or that
216     the officer must continue intelligence-gathering efforts; and
217          (b) the officer shall describe in the affidavit:
218          (i) why the officer believes the residence cannot be searched using less invasive or less
219     confrontational methods; and
220          (ii) investigative activities that have been undertaken to ensure that the correct
221     enclosure is identified and that potential harm to innocent third parties, the enclosure, and
222     officers may be minimized.
223          [(8)] (10) (a) Notwithstanding any provision in this chapter, a warrant authorizing
224     forcible entry without prior announcement may not be issued under this section, solely for:
225          [(a)] (i) the alleged possession or use of a controlled substance, with or without the
226     intent to distribute; or
227          [(b)] (ii) the alleged possession of drug paraphernalia as provided in Section 58-37a-3.
228          (b) A warrant authorizing forcible entry may be made for distribution of a controlled
229     substance.