BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 2505
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          Date of Hearing:   April 20, 2010
          Counsel:                Nicole J. Hanson

                                 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  


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               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  

               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  

                  (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  


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                    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.   


          California District Attorneys Association


          Analysis Prepared by  :    Nicole J.  Hanson / PUB. S. / (916)  


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