BILL ANALYSIS                                                                                                                                                                                                    


          |SENATE RULES COMMITTEE            |                  AB 2505|
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                                 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,  
          ASSEMBLY FLOOR  :  74-0, 4/29/10 (Consent) - See last page  
            for vote

           SUBJECT  :    Warrants:  electronic signature:  computer  

           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  


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          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

                   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  
          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  

          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  


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          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  


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          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

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