BILL NUMBER: AB 1773 CHAPTERED
BILL TEXT
CHAPTER 137
FILED WITH SECRETARY OF STATE JULY 30, 2003
APPROVED BY GOVERNOR JULY 30, 2003
PASSED THE SENATE JULY 15, 2003
PASSED THE ASSEMBLY MAY 23, 2003
AMENDED IN ASSEMBLY MAY 14, 2003
INTRODUCED BY Committee on Banking and Finance (Wiggins (Chair),
Chan, Chavez, Correa, Montanez, and Vargas)
(Coauthors: Assembly Members Bogh and Strickland)
MARCH 13, 2003
An act to amend Section 1524 of the Penal Code, relating to search
warrants.
LEGISLATIVE COUNSEL'S DIGEST
AB 1773, Committee on Banking and Finance. Search warrants:
identity theft.
Existing law authorizes a court or magistrate to issue a warrant
for the search of a place and the seizure of property or things
identified in the warrant where there is probable cause to believe
that specified grounds exist. Although statute does not directly
address the issue, case law permits a magistrate to issue a warrant
for a person or property in another county under certain
circumstances.
This bill would provide that, in addition to any other
circumstances permitting a magistrate to issue a warrant for a person
or property in another county, when the property or things to be
seized consist of any item or constitute any evidence that tends to
show a violation of specified identity theft crimes, a magistrate may
issue a warrant to search a person or property located in another
county if the person whose identifying information was taken or used
resides in that other county.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1524 of the Penal Code is amended to read:
1524. (a) A search warrant may be issued upon any of the
following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) When the property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing their
being discovered.
(4) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
felony.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under the age of 18 years, in violation of Section 311.11,
has occurred or is occurring.
(6) When there is a warrant to arrest a person.
(7) When a provider of electronic communication service or remote
computing service has records or evidence, as specified in Section
1524.3, showing that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the possession of any
person with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of concealing them
or preventing their discovery.
(b) The property or things or person or persons described in
subdivision (a) may be taken on the warrant from any place, or from
any person in whose possession the property or things may be.
(c) Notwithstanding subdivision (a) or (b), no search warrant
shall issue for any documentary evidence in the possession or under
the control of any person, who is a lawyer as defined in Section 950
of the Evidence Code, a physician as defined in Section 990 of the
Evidence Code, a psychotherapist as defined in Section 1010 of the
Evidence Code, or a clergyman as defined in Section 1030 of the
Evidence Code, and who is not reasonably suspected of engaging or
having engaged in criminal activity related to the documentary
evidence for which a warrant is requested unless the following
procedure has been complied with:
(1) At the time of the issuance of the warrant the court shall
appoint a special master in accordance with subdivision (d) to
accompany the person who will serve the warrant. Upon service of the
warrant, the special master shall inform the party served of the
specific items being sought and that the party shall have the
opportunity to provide the items requested. If the party, in the
judgment of the special master, fails to provide the items requested,
the special master shall conduct a search for the items in the areas
indicated in the search warrant.
(2) If the party who has been served states that an item or items
should not be disclosed, they shall be sealed by the special master
and taken to court for a hearing.
At the hearing, the party searched shall be entitled to raise any
issues that may be raised pursuant to Section 1538.5 as well as a
claim that the item or items are privileged, as provided by law. The
hearing shall be held in the superior court. The court shall
provide sufficient time for the parties to obtain counsel and make
any motions or present any evidence. The hearing shall be held
within three days of the service of the warrant unless the court
makes a finding that the expedited hearing is impracticable. In that
case the matter shall be heard at the earliest possible time.
If an item or items are taken to court for a hearing, any
limitations of time prescribed in Chapter 2 (commencing with Section
797) of Title 3 of Part 2 shall be tolled from the time of the
seizure until the final conclusion of the hearing, including any
associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during
normal business hours. In addition, the warrant shall be served upon
a party who appears to have possession or control of the items
sought. If, after reasonable efforts, the party serving the warrant
is unable to locate the person, the special master shall seal and
return to the court, for determination by the court, any item that
appears to be privileged as provided by law.
(d) As used in this section, a "special master" is an attorney who
is a member in good standing of the California State Bar and who has
been selected from a list of qualified attorneys that is maintained
by the State Bar particularly for the purposes of conducting the
searches described in this section. These attorneys shall serve
without compensation. A special master shall be considered a public
employee, and the governmental entity that caused the search warrant
to be issued shall be considered the employer of the special master
and the applicable public entity, for purposes of Division 3.6
(commencing with Section 810) of Title 1 of the Government Code,
relating to claims and actions against public entities and public
employees. In selecting the special master, the court shall make
every reasonable effort to ensure that the person selected has no
relationship with any of the parties involved in the pending matter.
Any information obtained by the special master shall be confidential
and shall not be divulged except in direct response to inquiry by
the court.
In any case in which the magistrate determines that, after
reasonable efforts have been made to obtain a special master, a
special master is not available and would not be available within a
reasonable period of time, the magistrate may direct the party
seeking the order to conduct the search in the manner described in
this section in lieu of the special master.
(e) Any search conducted pursuant to this section by a special
master may be conducted in a manner that permits the party serving
the warrant or his or her designee to accompany the special master as
he or she conducts his or her search. However, that party or his or
her designee shall not participate in the search nor shall he or she
examine any of the items being searched by the special master except
upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, "documentary evidence" includes, but
is not limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files, diagrams,
ledgers, books, tapes, audio and video recordings, films or papers
of any type or description.
(g) No warrant shall issue for any item or items described in
Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, no claim of attorney work
product as described in Section 2018 of the Code of Civil Procedure
shall be sustained where there is probable cause to believe that the
lawyer is engaging or has engaged in criminal activity related to the
documentary evidence for which a warrant is requested unless it is
established at the hearing with respect to the documentary evidence
seized under the warrant that the services of the lawyer were not
sought or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud.
(i) Nothing in this section is intended to limit an attorney's
ability to request an in camera hearing pursuant to the holding of
the Supreme Court of California in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
(j) In addition to any other circumstance permitting a magistrate
to issue a warrant for a person or property in another county, when
the property or things to be seized consist of any item or constitute
any evidence that tends to show a violation of Section 530.5, the
magistrate may issue a warrant to search a person or property located
in another county if the person whose identifying information was
taken or used resides in the same county as the issuing court.