BILL ANALYSIS AB 2505 Page 1 Date of Hearing: April 20, 2010 Counsel: Nicole J. Hanson ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 2505 (Strickland) - As Amended: April 8, 2010 SUMMARY : Updates technical terms regarding the issuance of warrants over a computer server. Specifically, this bill : 1)Allows an oath to be made via computer server. 2)Provides that the affiant's signature may be in the form of an electronic signature. 3)Deletes the requirement that the magistrate cause the warrant, supporting affidavit, and attachments to be printed if received by electronic mail or computer server. 4)Allows the magistrate to sign the warrant using a digital signature or electronic signature if electronic mail or computer server is used. EXISTING LAW : 1)States that the magistrate, before issuing the warrant, may examine on oath the person seeking the warrant and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the party or parties making them. [Penal Code Section 1526(a).] 2)Provides that in lieu of the written affidavit, the magistrate may take an oral statement under oath under one of the following conditions: a) The oath shall be made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for the purposes of this chapter. In these cases, the recording of the sworn oral statement and the transcribed statement shall be certified by the magistrate receiving it and shall be filed with the AB 2505 Page 2 clerk of the court. In the alternative in these cases, the sworn oral statement shall be recorded by a certified court reporter and the transcript of the statement shall be certified by the reporter, after which the magistrate receiving it shall certify the transcript which shall be filed with the clerk of the court. b) The oath is made using telephone and facsimile transmission equipment, or made using telephone and electronic mail, as follows: i) The oath is made during a telephone conversation with the magistrate, whereafter the affiant shall sign his or her affidavit in support of the application for the search warrant. The affiant's signature shall be in the form of a digital signature if electronic mail is used for transmission to the magistrate. The proposed search warrant and all supporting affidavits and attachments shall then be transmitted to the magistrate utilizing facsimile transmission equipment or, electronic mail. ii) The magistrate shall confirm with the affiant the receipt of the search warrant and the supporting affidavits and attachments. The magistrate shall verify that all the pages sent have been received, that all pages are legible, and that the affiant's signature or, digital signature is acknowledged as genuine. iii) If the magistrate decides to issue the search warrant, he or she shall: (1) Cause the warrant, supporting affidavit, and attachments to be printed if received by electronic mail. (2) Sign the warrant. (3) Note on the warrant the exact date and time of the issuance of the warrant. (4) Indicate on the warrant that the oath of the affiant was administered orally over the telephone. The completed search warrant, as signed by the magistrate, shall be deemed to be the original AB 2505 Page 3 warrant. [Penal Code Section 1526(b).] 3)Requires the magistrate to transmit via facsimile transmission equipment, or via electronic mail, the signed search warrant to the affiant who shall telephonically acknowledge its receipt. The Magistrate shall then telephonically authorize the affiant to write the words "duplicate original" on the copy of the completed search warrant transmitted to the affiant and this document shall be deemed to be a duplicate original search warrant. The original warrant and any affidavits or attachments in support thereof, and any duplicate original warrant, shall be returned as provided under existing law. [Penal Code Section 1526(b)(D).] 4)Disallows a search warrant from being issued unless there is probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. The application shall specify when applicable, that the place to be searched is in the possession or under the control of an attorney, physician, psychotherapist, or clergyman. (Penal Code Section 1515.) FISCAL EFFECT : Unknown COMMENTS : Related prior legislation is SB 1970 (Schiff), Chapter 692, Statutes of 1998, authorizes the magistrate to take a written declaration in support of a warrant of probable cause for an arrest via electronic mail under specified conditions, and to take the oral statement of the person seeking the warrant or any witness that he or she produces by using the telephone and e-mail. REGISTERED SUPPORT / OPPOSITION : Support California District Attorneys Association Opposition None Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916) AB 2505 Page 4 319-3744