BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2505| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 2505 Author: Audra Strickland (R) Amended: 4/8/10 in Assembly Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/15/10 AYES: Leno, Cogdill, Cedillo, Hancock, Huff, Steinberg, Wright ASSEMBLY FLOOR : 74-0, 4/29/10 (Consent) - See last page for vote SUBJECT : Warrants: electronic signature: computer server transmission SOURCE : Ventura County District Attorney DIGEST : This bill allows a warrant to be signed electronically when the magistrate receives the request for the warrant electronically. ANALYSIS : Existing law sets forth the grounds for the issuance of a search warrant. (Section 1524 of the Penal Code [PEN]) 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/her affidavit or their affidavits in writing, and cause CONTINUED AB 2505 Page 2 the affidavit or affidavits to be subscribed by the party or parties making them. (PEN Section 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: 1. The oath shall be made under penalty of perjury and recorded and transcribed. 2. The oath is made using telephone and facsimile transmission equipment, or made using telephone and electronic mail, as follows: A. The oath is made during a telephone conversation with the magistrate, where after the affiant shall sign his/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. B. 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. 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. Indicate on the warrant that the oath of the affiant was administered orally over the telephone (PEN AB 2505 Page 3 Section 1526(b)) Existing law provides that the completed search warrant, as signed by the magistrate shall be deemed to be the original warrant. (PEN Section 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. (PEN Section 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. (PEN Section 1515) This bill allows 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 the magistrate. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 6/16/10) Ventura County District Attorney (source) California District Attorneys Association ARGUMENTS IN SUPPORT : According to the author, "The AB 2505 Page 4 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 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 AB 2505 Page 5 signing of warrants that will give law enforcement the flexibility and rapidity to more effectively respond to crime in the modern world." ASSEMBLY FLOOR : AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield, Bradford, Brownley, Buchanan, Charles Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber, Huffman, Jeffries, Knight, Lieu, Logue, Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello, Nielsen, Norby, V. Manuel Perez, Portantino, Ruskin, Salas, Saldana, Silva, Skinner, Smyth, Solorio, Audra Strickland, Swanson, Torlakson, Torres, Tran, Villines, Yamada, John A. Perez NO VOTE RECORDED: Bass, Caballero, Jones, Bonnie Lowenthal, Torrico, Vacancy RJG:mw 6/16/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****