BILL ANALYSIS                                                                                                                                                                                                    

                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

           AB 2505(. A.Strickland)                                   5
          As Amended April 8, 2010
          Hearing date:  June 15, 2010
          Penal Code

                           WARRANTS: ELECTRONIC SIGNATURE: 
                           COMPUTER SERVICE TRANSMISSIONS  


          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




                                                       AB 2505 (Strickland)

          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  



                                                       AB 2505 (Strickland)

                    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  



                                                       AB 2505 (Strickland)

          the magistrate.

          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.)

               . . .



                                                       AB 2505 (Strickland)

               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>


          <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.


          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  



                                                       AB 2505 (Strickland)

              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  


                                                       AB 2505 (Strickland)

              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.