BILL NUMBER: AB 2055 CHAPTERED
BILL TEXT
CHAPTER 818
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2012
APPROVED BY GOVERNOR SEPTEMBER 30, 2012
PASSED THE SENATE AUGUST 28, 2012
PASSED THE ASSEMBLY AUGUST 29, 2012
AMENDED IN SENATE AUGUST 22, 2012
AMENDED IN SENATE AUGUST 7, 2012
AMENDED IN ASSEMBLY APRIL 25, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Fuentes
FEBRUARY 23, 2012
An act to amend Sections 1524 and 1534 of the Penal Code, relating
to search warrants.
LEGISLATIVE COUNSEL'S DIGEST
AB 2055, Fuentes. Search warrants: tracking devices.
Existing law prohibits, with exceptions, the use of an electronic
tracking device to determine the location or movement of a person.
Under existing law a violation of these provisions is a misdemeanor.
Existing law states that these provisions do not apply to the lawful
use of an electronic tracking device by a law enforcement agency.
Existing decisional law, in the case of U.S. v. Jones, holds that the
attachment of a Global Positioning System (GPS) tracking device to a
vehicle and the use of the device to track the vehicle is a search
within the meaning of the Fourth Amendment to the United States
Constitution.
Existing law states the grounds upon which a search warrant may be
issued, including when the property or things to be seized consist
of any item or constitute any evidence that tends to show a felony
has been committed, or tends to show that a particular person has
committed a felony.
This bill would allow a search warrant to be issued when the
information to be received from the use of a tracking device
constitutes evidence that tends to show that either a felony, a
misdemeanor violation of the Fish and Game Code, or a misdemeanor
violation of the Public Resources Code has been committed or is being
committed, tends to show that a particular person has committed that
act or is committing that act, or will assist in locating an
individual that has committed or is committing that act. The bill
would state that these provisions shall not be construed as creating
a cause of action against any foreign or California corporation for
providing location information. The bill would require that a
tracking device search warrant issued pursuant to these provisions
identify the person or property to be tracked, and specify a
reasonable time that the device may be used, not to exceed 30 days,
plus extensions, as provided. The bill would require that the warrant
be executed within 10 days, as provided.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1524 of the Penal Code is amended to read:
1524. (a) A search warrant may be issued upon any of the
following grounds:
(1) When the property was stolen or embezzled.
(2) When the property or things were used as the means of
committing a felony.
(3) When the property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing them
from being discovered.
(4) When the property or things to be seized consist of any item
or constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
felony.
(5) When the property or things to be seized consist of evidence
that tends to show that sexual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting sexual conduct of
a person under the age of 18 years, in violation of Section 311.11,
has occurred or is occurring.
(6) When there is a warrant to arrest a person.
(7) When a provider of electronic communication service or remote
computing service has records or evidence, as specified in Section
1524.3, showing that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the possession of any
person with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of concealing them
or preventing their discovery.
(8) When the property or things to be seized include an item or
any evidence that tends to show a violation of Section 3700.5 of the
Labor Code, or tends to show that a particular person has violated
Section 3700.5 of the Labor Code.
(9) When the property or things to be seized include a firearm or
any other deadly weapon at the scene of, or at the premises occupied
or under the control of the person arrested in connection with, a
domestic violence incident involving a threat to human life or a
physical assault as provided in Section 18250. This section does not
affect warrantless seizures otherwise authorized by Section 18250.
(10) When the property or things to be seized include a firearm or
any other deadly weapon that is owned by, or in the possession of,
or in the custody or control of, a person described in subdivision
(a) of Section 8102 of the Welfare and Institutions Code.
(11) When the property or things to be seized include a firearm
that is owned by, or in the possession of, or in the custody or
control of, a person who is subject to the prohibitions regarding
firearms pursuant to Section 6389 of the Family Code, if a prohibited
firearm is possessed, owned, in the custody of, or controlled by a
person against whom a protective order has been issued pursuant to
Section 6218 of the Family Code, the person has been lawfully served
with that order, and the person has failed to relinquish the firearm
as required by law.
(12) When the information to be received from the use of a
tracking device constitutes evidence that tends to show that either a
felony, a misdemeanor violation of the Fish and Game Code, or a
misdemeanor violation of the Public Resources Code has been committed
or is being committed, tends to show that a particular person has
committed a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code, or is
committing a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code, or
will assist in locating an individual who has committed or is
committing a felony, a misdemeanor violation of the Fish and Game
Code, or a misdemeanor violation of the Public Resources Code. A
tracking device search warrant issued pursuant to this paragraph
shall be executed in a manner meeting the requirements specified in
subdivision (b) of Section 1534.
(b) The property, things, person, or persons described in
subdivision (a) may be taken on the warrant from any place, or from
any person in whose possession the property or things may be.
(c) Notwithstanding subdivision (a) or (b), no search warrant
shall issue for any documentary evidence in the possession or under
the control of any person who is a lawyer as defined in Section 950
of the Evidence Code, a physician as defined in Section 990 of the
Evidence Code, a psychotherapist as defined in Section 1010 of the
Evidence Code, or a member of the clergy as defined in Section 1030
of the Evidence Code, and who is not reasonably suspected of engaging
or having engaged in criminal activity related to the documentary
evidence for which a warrant is requested unless the following
procedure has been complied with:
(1) At the time of the issuance of the warrant, the court shall
appoint a special master in accordance with subdivision (d) to
accompany the person who will serve the warrant. Upon service of the
warrant, the special master shall inform the party served of the
specific items being sought and that the party shall have the
opportunity to provide the items requested. If the party, in the
judgment of the special master, fails to provide the items requested,
the special master shall conduct a search for the items in the areas
indicated in the search warrant.
(2) (A) If the party who has been served states that an item or
items should not be disclosed, they shall be sealed by the special
master and taken to court for a hearing.
(B) At the hearing, the party searched shall be entitled to raise
any issues that may be raised pursuant to Section 1538.5 as well as a
claim that the item or items are privileged, as provided by law. The
hearing shall be held in the superior court. The court shall provide
sufficient time for the parties to obtain counsel and make any
motions or present any evidence. The hearing shall be held within
three days of the service of the warrant unless the court makes a
finding that the expedited hearing is impracticable. In that case the
matter shall be heard at the earliest possible time.
(C) If an item or items are taken to court for a hearing, any
limitations of time prescribed in Chapter 2 (commencing with Section
799) of Title 3 of Part 2 shall be tolled from the time of the
seizure until the final conclusion of the hearing, including any
associated writ or appellate proceedings.
(3) The warrant shall, whenever practicable, be served during
normal business hours. In addition, the warrant shall be served upon
a party who appears to have possession or control of the items
sought. If, after reasonable efforts, the party serving the warrant
is unable to locate the person, the special master shall seal and
return to the court, for determination by the court, any item that
appears to be privileged as provided by law.
(d) (1) As used in this section, a "special master" is an attorney
who is a member in good standing of the California State Bar and who
has been selected from a list of qualified attorneys that is
maintained by the State Bar particularly for the purposes of
conducting the searches described in this section. These attorneys
shall serve without compensation. A special master shall be
considered a public employee, and the governmental entity that caused
the search warrant to be issued shall be considered the employer of
the special master and the applicable public entity, for purposes of
Division 3.6 (commencing with Section 810) of Title 1 of the
Government Code, relating to claims and actions against public
entities and public employees. In selecting the special master, the
court shall make every reasonable effort to ensure that the person
selected has no relationship with any of the parties involved in the
pending matter. Any information obtained by the special master shall
be confidential and may not be divulged except in direct response to
inquiry by the court.
(2) In any case in which the magistrate determines that, after
reasonable efforts have been made to obtain a special master, a
special master is not available and would not be available within a
reasonable period of time, the magistrate may direct the party
seeking the order to conduct the search in the manner described in
this section in lieu of the special master.
(e) Any search conducted pursuant to this section by a special
master may be conducted in a manner that permits the party serving
the warrant or his or her designee to accompany the special master as
he or she conducts his or her search. However, that party or his or
her designee may not participate in the search nor shall he or she
examine any of the items being searched by the special master except
upon agreement of the party upon whom the warrant has been served.
(f) As used in this section, "documentary evidence" includes, but
is not limited to, writings, documents, blueprints, drawings,
photographs, computer printouts, microfilms, X-rays, files, diagrams,
ledgers, books, tapes, audio and video recordings, films, and papers
of any type or description.
(g) No warrant shall issue for any item or items described in
Section 1070 of the Evidence Code.
(h) Notwithstanding any other law, no claim of attorney work
product as described in Chapter 4 (commencing with Section 2018.010)
of Title 4 of Part 4 of the Code of Civil Procedure shall be
sustained where there is probable cause to believe that the lawyer is
engaging or has engaged in criminal activity related to the
documentary evidence for which a warrant is requested unless it is
established at the hearing with respect to the documentary evidence
seized under the warrant that the services of the lawyer were not
sought or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud.
(i) Nothing in this section is intended to limit an attorney's
ability to request an in camera hearing pursuant to the holding of
the Supreme Court of California in People v. Superior Court (Laff)
(2001) 25 Cal.4th 703.
(j) In addition to any other circumstance permitting a magistrate
to issue a warrant for a person or property in another county, when
the property or things to be seized consist of any item or constitute
any evidence that tends to show a violation of Section 530.5, the
magistrate may issue a warrant to search a person or property located
in another county if the person whose identifying information was
taken or used resides in the same county as the issuing court.
(k) This section shall not be construed to create a cause of
action against any foreign or California corporation, its officers,
employees, agents, or other specified persons for providing location
information.
SEC. 2. Section 1534 of the Penal Code is amended to read:
1534. (a) A search warrant shall be executed and returned within
10 days after date of issuance. A warrant executed within the 10-day
period shall be deemed to have been timely executed and no further
showing of timeliness need be made. After the expiration of 10 days,
the warrant, unless executed, is void. The documents and records of
the court relating to the warrant need not be open to the public
until the execution and return of the warrant or the expiration of
the 10-day period after issuance. Thereafter, if the warrant has been
executed, the documents and records shall be open to the public as a
judicial record.
(b) (1) A tracking device search warrant issued pursuant to
paragraph (12) of subdivision (a) of Section 1524 shall identify the
person or property to be tracked and shall specify a reasonable
length of time, not to exceed 30 days from the date the warrant is
issued, that the device may be used. The court may, for good cause,
grant one or more extensions for the time that the device may be
used, with each extension lasting for a reasonable length of time,
not to exceed 30 days. The search warrant shall command the officer
to execute the warrant by installing a tracking device or serving a
warrant on a third-party possessor of the tracking data. The officer
shall perform any installation authorized by the warrant during the
daytime unless the magistrate, for good cause, expressly authorizes
installation at another time. Execution of the warrant shall be
completed no later than 10 days immediately after the date of
issuance. A warrant executed within this 10-day period shall be
deemed to have been timely executed and no further showing of
timeliness need be made. After the expiration of 10 days, the warrant
shall be void, unless it has been executed.
(2) An officer executing a tracking device search warrant shall
not be required to knock and announce his or her presence before
executing the warrant.
(3) No later than 10 calendar days after the use of the tracking
device has ended, the officer executing the warrant shall file a
return to the warrant.
(4) No later than 10 calendar days after the use of the tracking
device has ended, the officer who executed the tracking device
warrant shall serve a copy of the warrant on the person who was
tracked or whose property was tracked. Upon the request of a
government agency, the magistrate may, for good cause, delay service
of a copy of the warrant.
(5) An officer installing a device authorized by a tracking device
search warrant may install and use the device only within
California.
(6) As used in this section, "tracking device" means any
electronic or mechanical device that permits the tracking of the
movement of a person or object.
(7) As used in this section, "daytime" means the hours between 6
a.m. and 10 p.m. according to local time.
(c) If a duplicate original search warrant has been executed, the
peace officer who executed the warrant shall enter the exact time of
its execution on its face.
(d) A search warrant may be made returnable before the issuing
magistrate or his or her court.