BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2505(. A.Strickland) 5
As Amended April 8, 2010
Hearing date: June 15, 2010
Penal Code
MK:dl
WARRANTS: ELECTRONIC SIGNATURE:
COMPUTER SERVICE TRANSMISSIONS
HISTORY
Source: Ventura County District Attorney
Prior Legislation: SB 1970 (Schiff) - Chapter 692, Stats. 1998
SB 33 (Peace) - Chapter 563 Stats. 1995
SB 1379 (Peace) - Chapter 1078 Stats. 1996
SB 123 (Peace) - Chapter 279, 1997
Support: California District Attorneys Association
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD A MAGISTRATE BE PERMITTED TO SIGN A WARRANT ELECTRONICALLY IF
THE HE OR SHE RECEIVES THE REQUEST FOR THE WARRANT ELECTRONICALLY?
PURPOSE
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The purpose of this bill is to allow a warrant to be signed
electronically when the magistrate receives the request for the
warrant electronically.
Existing law sets forth the grounds for the issuance of a search
warrant. (Penal Code 1524)
Existing law 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 1526(a).)
Existing law provides that in lieu of the written affidavit, the
magistrate may take an oral statement under oath under the
following conditions:
The oath shall be made under penalty of perjury and
recorded and transcribed.
The oath is made using telephone and facsimile
transmission equipment, or made using telephone and
electronic mail, as follows:
o The oath is made during a telephone
conversation with the magistrate, where after 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.
o 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
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genuine. If the magistrate decides to issue the search
warrant, he or she shall:
Cause the warrant, supporting
affidavit, and attachments to be printed if
received by electronic mail.
Sign the warrant.
Note on the warrant the exact date
and time of the issuance of the warrant. Indicate
on the warrant that the oath of the affiant was
administered orally over the telephone (Penal
Code 1526(b).)
Existing law provides that the completed search warrant, as
signed by the magistrate shall be deemed to be the original
warrant. (Penal Code 1526 (b)(2)(C)(iv))
Existing law 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 1526(b)(2)(D).)
Existing law 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 1515.)
This bill would allow the magistrate's signature to be made in
the form of a digital signature or electronic signature if
electronic mail or computer server is used for transmission to
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the magistrate.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
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The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
The unpredictable nature of crime sometimes requires
peace officers to obtain search warrants after normal
business hours, sometimes in the middle of the night.
Under current statute, affiants - law enforcement
officers - are expressly authorized to transmit a search
warrant to a magistrate for review using fax or
electronic mail, aka e-mail. The affiant's signature on
the search warrant affidavit may be in the form of a
digital signature. However, once the magistrate has
decided to issue the warrant, current law does not
authorize the magistrate to sign the warrant
electronically. Instead, the magistrate must print out
the warrant, affidavit, and any attachments, sign it
with a pen, and either fax it back to the officer or
scan and email it to the officer. The current
requirements can make the process of approving, signing,
and returning a warrant to the court a lengthy process
that can be fraught with technical and hardware
challenges such as jammed printers or exhausting an ink
cartridge in the middle of the night. These steps can
be time consuming, and, in some cases, have a negative
impact on public safety. Officers may have to stand
guard over premises and suspects awaiting the approval
of a warrant. These steps also require that magistrates
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assigned to after-hours search warrant duty be provided
with printers, ink cartridges, and fax machines or
scanners. Contemporary computer technology provides for
a secure and expeditious alternative for the signing and
transmission of warrants by both the affiant and
magistrate. This bill would delete the requirement that
the magistrate cause the warrant, supporting affidavit,
and attachments to be printed if received by electronic
mail or computer server and then faxed or scanned and
emailed back. Instead, the magistrate could sign the
warrant electronically and email it back. This bill
would also allow the use of a computer server rather
than email for transmission of the warrant documents.
Because existing law refers to both "electronic
signatures" and "digital signatures," which are similar
concepts with technical differences between them, this
bill would authorize either. Finally, this bill would
delete the requirement that the magistrate return the
printed documents to the court, and would require only
the "duplicate original" be returned to the court clerk
by the officer. Allowing affiants and magistrates to
utilize e-mail is a secure alternative method of
transmission and signing of warrants that will give law
enforcement the flexibility and rapidity to more
effectively respond to crime in the modern world.
2. Use of Electronic Mail for Search Warrants
SB 1970 (Schiff) Chapter 692 in 1998 authorized an application
for a search warrant to be made by electronic mail including
that the affiant's signature in support of the affidavit for the
warrant can be made by digital signature. However, the
magistrate must sign and return the warrant and return it by
fax, scan it into the computer or return it in person for it to
be served. The use of electronic mail affidavits usually occur
when the court is not in session so faxing or scanning a warrant
back can be time consuming. According to the sponsor, the
Ventura County District Attorney:
It is not unusual for search warrant documents to be 50
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pages or more. It is in efficient for a judge to print
out and then scan or fax a lengthy document while peace
officers wait at the crime scene or at the police
station for the process to be completed.
This bill would allow a magistrate to return a search warrant by
electronic signature. It does not change any of the standards
for which the warrant may be issued.
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