This document includes House Committee Amendments incorporated into the bill on Thu, Jan 27, 2022 at 9:25 AM by pflowers.
1     
FORCIBLE ENTRY WARRANT MODIFICATIONS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Matthew H. Gwynn

5     
Senate Sponsor: Kirk A. Cullimore

6     

7     LONG TITLE
8     General Description:
9          This bill provides parameters for knock and announce, and no-knock warrants and
10     specifies the conditions under which they may be acquired and used.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     requires officers serving knock and announce and no-knock warrants to wear readily
15     identifiable markings or clothing that identify them as law enforcement officers;
16          ▸     requires that officers knock and announce themselves more than once before
17     forcibly entering a building;
18          ▸     sets a preference for warrants to be served during daytime hours;
19          ▸     allows for exigent circumstances when serving knock and announce warrants;
20          ▸     prohibits the use of no-knock warrants for misdemeanor charges; and
21          ▸     makes technical corrections.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:
28          77-7-5, as last amended by Laws of Utah 2021, Chapter 260
29          77-7-8, as last amended by Laws of Utah 2015, Chapter 317
30     ENACTS:
31          77-7-8.1, Utah Code Annotated 1953
32     

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 77-7-5 is amended to read:
35          77-7-5. Issuance of summons or warrant -- Time and place arrests may be made
36     -- Contents of warrant or summons -- Responsibility for transporting prisoners -- Court
37     clerk to dispense costs for transportation.
38          (1) As used in this section:
39          (a) "Daytime hours" means the hours after 6 a.m. and before 10 p.m.
40          (b) "Nighttime hours" means the hours after 10 p.m. and before 6 a.m.
41          [(1)] (2) A magistrate may issue a warrant for arrest in lieu of a summons for the
42     appearance of the accused only upon finding:
43          (a) probable cause to believe that the person to be arrested has committed a public
44     offense; and
45          (b) under the Utah Rules of Criminal Procedure, and this section that a warrant is
46     necessary to:
47          (i) prevent risk of injury to a person or property;
48          (ii) secure the appearance of the accused; or
49          (iii) protect the public safety and welfare of the community or an individual.
50          [(2)] (3) If the offense charged is:
51          (a) a felony, the arrest upon a warrant may be made at any time of the day or night; or
52          (b) a misdemeanor, the arrest upon a warrant [can] may be made [at night] during
53     nighttime hours only if:
54          (i) the magistrate has endorsed authorization to do so on the warrant;
55          (ii) the person to be arrested is upon a public highway, in a public place, or in a place
56     open to or accessible to the public; or
57          (iii) the person to be arrested is encountered by a peace officer in the regular course of
58     that peace officer's investigation of a criminal offense unrelated to the misdemeanor warrant for
59     arrest.
60          [(3) For the purpose of Subsection (1):]
61          [(a) daytime hours are the hours of 6 a.m. to 10 p.m.; and]
62          [(b) nighttime hours are the hours after 10 p.m. and before 6 a.m.]
63          (4) (a) If the magistrate determines that the accused must appear in court, the
64     magistrate shall include in the arrest warrant the name of the law enforcement agency in the
65     county or municipality with jurisdiction over the offense charged.
66          (b) (i) The law enforcement agency identified by the magistrate under Subsection (4)(a)
67     is responsible for providing inter-county transportation of the defendant, if necessary, from the
68     arresting law enforcement agency to the court site.
69          (ii) The law enforcement agency named on the warrant may contract with another law
70     enforcement agency to have a defendant transported.
71          (c) (i) The law enforcement agency identified by the magistrate under Subsection (4)(a)
72     as responsible for transporting the defendant shall provide to the court clerk of the court in
73     which the defendant is tried, an affidavit stating that the defendant was transported, indicating
74     the law enforcement agency responsible for the transportation, and stating the number of miles
75     the defendant was transported.
76          (ii) The court clerk shall:
77          (A) account for a cost paid under Subsection 76-3-201(4)(b) for government
78     transportation; and
79          (B) dispense money collected by the court under Subsection (4)(c)(ii)(A) to the law
80     enforcement agency responsible for the transportation of a convicted defendant.
81          (5) The law enforcement agency identified by the magistrate under Subsection (4)(a)
82     shall indicate to the court within 48 hours of the issuance, excluding Saturdays, Sundays, and
83     legal holidays if a warrant issued in accordance with this section is an extradition warrant.
84          (6) The law enforcement agency identified by the magistrate under Subsection (4)(a)
85     shall report any changes to the status of a warrant issued in accordance with this section to the
86     Bureau of Criminal Identification.
87          Section 2. Section 77-7-8 is amended to read:
88          77-7-8. Forcible entry to conduct search or make arrest -- Conditions requiring a
89     warrant.
90          (1) As used in this section:
91          (a) "Daytime hours" means the same as that term is defined in Section 77-7-5.
92          (b) "Forcible entry" means entering any building, room, conveyance, compartment, or
93     other enclosure by force.
94          (c) "Knock" means to knock with reasonably strong force in a quick succession of three
95     or more contacts with a door or other point of entry into a building that would allow the
96     occupant to reasonably hear the officer's demand for entry.
97          (d) "Knock and announce warrant" means a lawful search warrant that authorizes entry
98     into a building after knocking and demanding entry onto property or building as outlined in
99     Subsection (2).
100          (e) "Nighttime hours" means the same as that term is defined in Section 77-7-5.
101          (f) "Supervisory official" means a command-level officer and includes all sheriffs,
102     heads of law enforcement agencies, and all supervisory enforcement officers equivalent to a
103     sergeant rank or higher.
104          [(1)] (2) (a) Subject to [Subsection (2), a peace] the provisions of this subsection, an
105     officer when making [an arrest may forcibly enter the building in which] a lawful arrest or
106     serving a lawful knock and announce warrant, may make forcible entry where the person to be
107     arrested is located, or [in which] where there is probable cause for believing the person to be.
108          (b) Before making the forcible entry, the officer shall:
109          (i) wear readily identifiable markings, including a badge and vest or clothing with a
110     distinguishing label or other writing which identifies the person as a law enforcement officer;
111          [(i)] (ii) audibly identify himself or herself as a law enforcement officer;
112          [(ii)] (iii) knock and demand admission more than once;
113          [(iii)] (iv) wait a reasonable period of time for an occupant to admit access after
114     knocking and demanding admission; and
115          [(iv)] (v) explain the purpose for which admission is desired.
116          (c) (i) The officer need not knock, give a demand and explanation, or identify himself
117     or herself, before making a forcible entry:
118          (A) under the exceptions in Section 77-7-6 [or];
119          (B) where there is probable cause to believe [evidence will be easily or quickly
120     destroyed.] exigent circumstances exist due to the destruction of evidence; or
121          (C) there is reasonable suspicion to believe exigent circumstances exist due to the
122     physical safety of an officer or individual inside or in near proximity to the building.
123          (ii) The officer shall identify himself or herself and state the purpose for entering the
124     premises as soon as practicable after entering the premises.
125          (d) The officer may use only that force which is reasonable and necessary to effectuate
126     forcible entry under this section.
127          [(2)] (3) [If] Subject to Subsection (4), if the building to be entered under Subsection
128     [(1)] (2) appears to be a private residence or the officer knows the building is a private
129     residence, and if there is no consent to enter or there are no exigent circumstances, the officer
130     shall, before entering the building:
131          (a) obtain an arrest or search warrant if the building is the residence of the person to be
132     arrested; or
133          (b) obtain a search warrant if the building is a residence, but not the residence of the
134     person whose arrest is sought.
135          (4) Before seeking a warrant from a judge or magistrate under Subsection (2), a
136     supervisory official shall, using the officer's affidavit:
137          (a) independently perform an assessment to evaluate the totality of the circumstances;
138          (b) ensure reasonable intelligence gathering efforts have been made;
139          (c) ensure a threat assessment was completed on the person or building to be searched;
140     and
141          (d) determine either that there is a sufficient basis to support seeking a warrant or
142     require that the officer continue evidence gathering efforts.
143          [(3)] (5) Notwithstanding any other provision of this chapter, forcible entry under this
144     section may not be made solely for the alleged:
145          (a) possession or use of a controlled substance under Section 58-37-8; or
146          (b) the possession of drug paraphernalia as defined in Section 58-37a-3.
147          (6) All arrest warrants are subject to the conditions set forth in Subsection 77-7-5(2).
148          (7) Unless specifically requested by the affiant and approved by a judge or magistrate,
149     all knock and announce warrants shall be served during daytime hours.
150          Section 3. Section 77-7-8.1 is enacted to read:
151          77-7-8.1. Forcible entry to conduct a search -- Conditions requiring a warrant --
152     No-knock warrants.
153          (1) As used in this section:
154          (a) "Daytime hours" means the same as that term is defined in Section 77-7-5.
155          (b) "Forcible entry" means the same as that term is defined in Section 77-7-8.
156          (c) "Nighttime hours" means the same as that term is defined in Section 77-7-5.
157          (d) "No-knock warrant" means a lawful search warrant that authorizes entry into a
158     building without notice to any occupant in the property or building at the time of service.
159          (e) "Supervisory official" means the same as that term is defined in Section 77-7-8.
160          (2) Subject to the provisions of this section, an officer serving a lawful no-knock
161     warrant may make a forcible entry onto the property or building to be searched without notice.
162          (3) Before seeking a no-knock warrant from a judge or magistrate under Subsection
163     (2), a supervisory official shall, using the officer's affidavit:
164          (a) independently perform an assessment to evaluate the totality of the circumstances;
165          (b) ensure reasonable intelligence gathering efforts have been made;
166          (c) ensure a threat assessment was completed on the person or building to be searched;
167     and
168          (d) determine either that there is a sufficient basis to support seeking a warrant or
169     require that the officer continue evidence gathering efforts.
170          (4) (a) The affidavit for a no-knock warrant shall describe:
171          (i) why the officer believes the suspect is unable to be detained or the residence
172     searched using less invasive or less confrontational methods;
173          (ii) investigative activities that have been undertaken to ensure that the correct building
174     is identified and that potential harm to innocent third parties, the building, and officers may be
175     minimized; or
176          (iii) the present or imminent threat of serious bodily injury or death to a person inside,
177     outside, or in near proximity to the building.
178          (b) A no-knock warrant shall be served during daytime hours unless the affidavit states
179     sufficient grounds to believe a search is necessary during nighttime hours.
180          (5) Upon serving a no-knock warrant, an officer shall wear readily identifiable
181     markings, including a badge and vest or clothing with a distinguishing label or other writing
182     which shows that the person is a law enforcement officer.
183          (6) Notwithstanding any other provision of this chapter, Ĥ→ an officer may not
183a     request ←Ĥ a no-knock warrant Ĥ→ [may not be
184     granted] ←Ĥ if the warrant is solely for a misdemeanor investigation.