As used in this section, the term, tracking device, means an electronic or mechanical device that permits the tracking of the movement of a person or object, including GPS, cellular device, electronic video surveillance, or any other covert tracking or surveillance device.

A search warrant for a tracking device may be issued by any magistrate authorized in § 23A-35-2, for the installation, use, and maintenance of a tracking device. There must be probable cause to search and seize property as set forth in this chapter and that such installation and use of this device will lead to the discovery of evidence under § 23A-35-3. The tracking-device warrant must identify the person or property to be tracked, designate the magistrate to whom it must be returned, and specify a reasonable length of time that the device may be used. The time may not exceed sixty days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed sixty days each. The warrant must command the officer to complete any installation authorized by the warrant within a specified time no longer than ten days.

Terms Used In South Dakota Codified Laws 23A-35-4.3

  • Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Indictment: The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies.
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Person: includes natural persons, partnerships, associations, cooperative corporations, limited liability companies, and corporations. See South Dakota Codified Laws 2-14-2
  • Probable cause: A reasonable ground for belief that the offender violated a specific law.
  • property: as used in this chapter includes documents, books, papers, and any other tangible objects. See South Dakota Codified Laws 23A-35-14
  • Seal: includes an impression of the seal upon the paper alone, as well as upon wax or a wafer affixed to the paper, and also the word "seal" written or printed on such paper. See South Dakota Codified Laws 2-14-2
  • Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.

Any tracking-device warrant issued under this section may authorize the use of the tracking device within the jurisdiction of the magistrate, and outside that jurisdiction, if the tracking device is installed within the magistrate’s jurisdiction. The warrant may be executed in any part of the state where the person or object is found if, after the issuance of a warrant pursuant to this section, the person or object moves or is taken out of the jurisdiction of the magistrate issuing the warrant. The executing officer must perform any installation authorized by the warrant during the daytime, unless the magistrate, for good cause, expressly authorizes installation at another time.

The tracking-device warrant must command the executing officer to return the warrant to the magistrate designated in the warrant. The officer executing a tracking-device warrant must enter on the inventory the approximate time and date the device was installed and the period during which it was used.

Within ten days after the use of the tracking-device has ended, the officer executing a tracking-device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; by leaving a copy at the person’s residence or usual place of abode with an individual of suitable age and discretion who resides at that location; or by mailing a copy to the person’s last known address. Upon request of the state, the judge may delay notice to prevent the occurrences set forth in subdivisions (1) to (5), inclusive.

With respect to the issuance of any warrant under this section, a judge may, upon a showing of good cause, seal the contents of a warrant and supporting documents until the termination of an investigation, an indictment or information is filed, or as otherwise ordered by the court for purpose of preventing:

(1) Endangerment of life or physical safety of an individual;

(2) Flight from prosecution;

(3) Destruction of or tampering with evidence;

(4) Intimidation of a potential witness; or

(5) If failure to seal would otherwise seriously jeopardize an investigation or unduly delay a trial.

Source: SL 2013, ch 265 (Supreme Court Rule 13-04), eff. Feb. 14, 2013; SL 2018, ch 299 (Supreme Court Rule 18-08), eff. July 1, 2018; SL 2022, ch 75, § 1.