BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1004
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          Date of Hearing:   May 7, 2013
          Chief Counsel:      Gregory Pagan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                  Tom Ammiano, Chai

                     AB 1004 (Gray) - As Amended:  March 21, 2014
                       As Proposed to be Amended in Committee


           SUMMARY  :  Makes technological updates to procedures related to  
          the judicial issuance of an arrest warrant.  Specifically,  this  
          bill  :  

          1)Allows an oath in support of a declaration of probable cause  
            for arrest to be made using a telephone and computer server.

          2)Provides that the declarant's signature may be in the form of  
            an electronic signature. 

          3)Allows the magistrate to subsequently print the warrant,  
            supporting affidavit, and attachments if received by  
            electronic mail or computer server.

          4)Allows the magistrate to sign an arrest warrant using a  
            digital signature or electronic signature if electronic mail  
            or computer server is used for transmission to the magistrate.

          5)Authorizes a signed arrest warrant to be transmitted by a  
            computer server to the declarant.

           EXISTING LAW  :

          1)States that when a declaration of probable cause is made be a  
            peace officer of this state, the magistrate, if, and only if,  
            satisfied from the declaration that there exists probable  
            cause that the offense described in the declaration has been  
            committed and that the defendant described therein has  
            committed the offense, shall issue a warrant of probable cause  
            for the arrest of the defendant.  The declaration in support  
            of the warrant of probable cause for arrest shall be a sworn  
            statement in writing.  [Penal Code Section 817(a) and (b).]

          2)Provides that in lieu of the written declaration, the  








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            magistrate may take an oral statement under oath under either  
            of the following conditions:

             a)   The oath shall be made under penalty of perjury and  
               recorded and transcribed.  The transcribed statement shall  
               be deemed to be the declaration for the purposes of this  
               section, the recording of the sworn oral statement and the  
               transcribed statement shall be certified by the magistrate  
               receiving it and shall be filed with the clerk of the  
               court.  In the alternative, the sworn oral statement may be  
               recorded by a certified court reporter who shall certify  
               the transcript of the statement, after which the magistrate  
               receiving it shall certify the transcript which shall be  
               filed with the clerk of the court.

             b)   The oath is made using telephone and facsimile  
               transmission equipment, or made using telephone and  
               electronic mail, under all of the following conditions:

               i)     The oath is made during a telephone conversation  
                 with the magistrate, after which the declarant shall sign  
                 his or her declaration in support of the warrant of  
                 probable cause for arrest.  The declarant's signature  
                 shall be in the form of a digital signature if electronic  
                 mail is used for transmission to the magistrate.  The  
                 proposed warrant and all supporting declarations and  
                 attachments shall then be transmitted to the magistrate  
                 utilizing facsimile transmission equipment or electronic  
                 mail.

               ii)    The magistrate shall confirm with the declarant the  
                 receipt of the warrant and the supporting declarations  
                 and attachments.  The magistrate shall verify that all  
                 the pages sent have been received, that all pages are  
                 legible, and that the declarant's signature or, digital  
                 signature, is acknowledged as genuine.

               iii)    If the magistrate decides to issue the 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.  








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                  (3)       Note on the warrant the exact date and time of  
                    the issuance of the warrant.

                  (4)       Indicate on the warrant that the oath of the  
                    declarant was administered orally over the telephone.   
                    The completed warrant, as signed by the magistrate,  
                    shall be deemed to be the original warrant.  [Penal  
                    Code Section 817(c).]

          3)Requires the magistrate to transmit via facsimile transmission  
            equipment or via electronic mail, the signed warrant to the  
            declarant who shall telephonically acknowledge its receipt.   
            The magistrate shall then telephonically authorize the  
            declarant to write the words "duplicate original" on the copy  
            of the completed warrant transmitted to the declarant and this  
            document shall be deemed to be a duplicate original warrant.   
            [Penal Code Section 817(c)(2)(D).]

          4)Provides that before issuing a warrant of probable cause for  
            arrest, the magistrate may examine under oath the person  
            seeking the warrant and any witness the person may produce,  
            take the written declaration of the person or witness, and  
            cause the person or witness to subscribe the declaration.   
            [Penal Code Section 817(d).]

           FISCAL EFFECT  :  Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Although law  
            enforcement can submit arrest warrants to judges via email,  
            law requires a magistrate's physical signature in order to  
            authorize the warrant.  AB 1004 allows magistrates signatures  
            on arrest warrants to be in the form of a digital or  
            electronic signature.  The bill removes an unnecessary  
            impediment to the criminal justice system by updating statute  
            to take advantages of modern technologies.  By expediting the  
            ability of law enforcement to obtain arrest warrants, police  
            officers will be able to do their jobs quickly and efficiently  
            without hindrances resulting from delays in paperwork.  AB  
            1004 embraces established technologies to modernize court  
            operations.

          "In 2011, the Legislature authorized AB 2505 (Strickland Ch. 98,  








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            Stats. 2010) to amend Section 1526 of the Penal code to allow  
            judges' signatures on search warrants to be in digital or  
            electronic form.  AB 2505 has established the foundation which  
            AB 1004 will build upon."

           2)Argument in Support  :  The  Judicial Council of California   
            believes, "This bill would streamline the process for  
            obtaining signatures on arrest warrants by amending Section  
            817 of the Penal Code to permit arrest warrants to be  
            submitted not only be email,, but also by computer server, and  
            would permit magistrates to sign arrest warrants digitally or  
            electronically.  By making the process for obtaining  
            magistrates signatures on arrest warrants more efficient, this  
            change will not only bring cost savings to court, but also to  
            cities and counties, because law enforcement will no longer be  
            required to travel to court, or if outside of regualr business  
            hours, to a magistrate's home to obtain a signature on an  
            arrest warrant.  Allowing affiants and magistrates to utilize  
            e-mail is a secure alternative method of transmission and  
            signing of arrest warrants that will give law enforcement the  
            flexibility and rapidity to more effectively respond to crime  
            in the modern world.

           3)Prior Legislation  :  AB 2505 (Strickland), Chapter 98, Statutes  
            of 2010, authorized a magistrate to receive an affidavit and  
            other documents in support of the issuance of a search warrant  
            by a computer server, and allowed a search warrant to be  
            signed by a magistrate digitally or electronically.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Judicial Council of California (Sponsor)
          California district Attorneys Association

           Opposition 
           
          None
           

          Analysis Prepared by  :    Gregory Pagan / PUB. S. / (916)  
          319-3744 










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