2018 -- H 7756

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LC003708

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO CRIMINAL PROCEDURE

     Introduced By: Representatives Filippi, Chippendale, Quattrocchi, and Roberts

     Date Introduced: February 28, 2018

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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

hereby amended by adding thereto the following chapter:

CHAPTER 5.3

UNMANNED AERIAL VEHICLES

     12-5.3-1. Definitions.

     As used in this chapter:

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

or obtained by an unmanned aerial vehicle.

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

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

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

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

direct human intervention from within or on the aircraft.

     12-5.3-2. Use of unmanned aerial vehicles.

     (a) Any use of unmanned aerial vehicles shall fully comply with all federal aviation

administration requirements and guidelines.

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

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

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

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

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

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

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

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

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

of an unmanned aerial vehicle.

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

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

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

operation, if:

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

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

and

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

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

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

use.

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

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

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

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

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

     (h) Unmanned aerial vehicles used pursuant to subsections (c) or (f) of this section shall

be operated in a manner to collect data only on the designated target and shall avoid data

collection on individuals, homes, or areas other than the target. Neither facial recognition nor

other biometric matching technology may be used on non-target data collected by an unmanned

aerial vehicle.

     12-5.3-3. Application for orders.

     (a) The attorney general, or an assistant attorney general specially designated by the

attorney general, may apply ex parte to the presiding justice of the superior court for an order

authorizing the use of unmanned aerial vehicles. Each ex parte application for an order must be in

writing, subscribed and sworn to by the applicant.

     (b) The application must contain:

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

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

applicant to justify their belief that an order should be issued, including:

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

committed;

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

expected to be deployed;

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

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

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

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

be too dangerous;

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

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

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

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

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

court on each application;

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

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

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

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

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

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

of the failure to obtain the results.

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

additional testimony or documentary evidence in support of the application.

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

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

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

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

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

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

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

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

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

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

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

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

     12-5.3-4. Issuance of orders.

     (a) Upon the application as provided in § 12-5.3-3, the presiding justice of the superior

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

disqualify themself from entering the order, may enter an ex parte order, as required or as

modified, authorizing the use of an unmanned aerial vehicle if the presiding justice of the superior

court determines on the basis of the facts submitted by the applicant that:

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

is about to commit a particular designated offense;

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

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

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

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

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

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

other than the target.

     12-5.3-5. Form and content of orders.

     (a) Each order authorizing the use of an unmanned aerial vehicle shall specify:

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

unmanned aerial vehicle will be used;

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

deployed;

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

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

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

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

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

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

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 § 12-5.3-3 and the court making the

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

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

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

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

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

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

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

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

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

court what progress has been made toward achievement of the authorized objective and the need

for the unmanned aerial vehicle's continued use. These reports shall be made at any intervals that

the presiding justice of the superior court may require.

     12-5.3-6. Approval of use of unmanned aerial vehicles.

     (a) An order of approval of the use of an unmanned aerial vehicle relating to an offense

other than that specified in the order of authorization may be issued where the court finds on an

application for an order of approval submitted in the same manner as an application for

authorization as provided in § 12-5.3-3 that the use was otherwise made in accordance with this

chapter. This application shall be made as soon as practicable.

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

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

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

civil actions.

     12-5.3-7. Return of inventory.

     (a) Within a reasonable time but not later than ten (10) days after the termination of the

period of the order or of extensions of the order, the presiding justice of the superior court shall

cause to be served on the person named in the order or application, and any other parties upon

whom information or data was collected, an inventory which shall include:

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

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

approval;

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

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

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

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

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

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

postponed for a period of ten (10) additional days. Any additional extensions shall be for no

longer than ten (10) days.

     12-5.3-8. Notice of intention.

     The contents of any information or data derived from use of an unmanned aerial vehicle

shall not be received in evidence or otherwise disclosed in any criminal proceeding unless each

party, not less than ten (10) days before the proceeding, has been furnished with a copy of the

application, order, and inventory under which the collection of information was authorized or

approved. This ten (10) day period may be waived by the judge if they find that it was not

possible to furnish the party with the information more than ten (10) days before the proceeding

and that the party will not be prejudiced by the delay in receiving the information.

     12-5.3-9. Suppression of evidence.

     (a) Any aggrieved person or entity may move to suppress the contents of any information

or data derived from the use of an unmanned aerial vehicle on the grounds that:

     (1) The information was unlawfully obtained;

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

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

     (4) Notice was not given as provided in § 12-5.3-8.

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

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

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

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

upon the filing of the motion by the aggrieved person, may in their discretion make available to

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

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

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

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

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

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

presiding justice shall deem it necessary to disqualify themself for hearing and determination. No

motion under this section shall be heard or determined by a district court in 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

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

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

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

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

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

court.

     12-5.3-10. Civil remedy.

     (a) Any person who is surveilled or whose location or other information or data are

intercepted, disclosed, or used in violation of this chapter shall have a civil cause of action against

any person who intercepts, discloses, or uses the communications, and shall be entitled to recover

from that person:

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

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

whichever is higher;

     (2) Punitive damages; and

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

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

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

     12-5.3-11. Data retention.

     (a) No data collected on an individual, home, or area other than the target that justified

deployment may be used, copied, or disclosed for any purpose. Such data shall be deleted as soon

as possible, and in no event later than twenty-four (24) hours after collection.

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

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

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

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

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

     12-5.3-12. Reporting.

     (a) In March of each year, the attorney general shall report to the general assembly and

make public on its website the following information regarding the use of unmanned aerial

vehicles for the preceding calendar year:

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

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

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gathered during each use;

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

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

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

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

arrests were made;

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

number granted or denied; and

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

which the convictions were obtained.

     SECTION 2. This act shall take effect upon passage.

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LC003708

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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 comprehensively regulate the use of unmanned aerial vehicles and the use

of any information that they may generate.

     This act would take effect upon passage.

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LC003708

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