BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 0 0 AB 1004 (Gray) 4 As Amended May 15, 2013 Hearing date: June 18, 2013 Penal Code MK:mc CRIMINAL PROCEDURE HISTORY Source: Judicial Council Prior Legislation: AB 2505 (Strickland) - Chapter 98, Stats. 2002 Support: California District Attorneys Association Opposition:None known Assembly Floor Vote: Ayes 74 - Noes 0 KEY ISSUE SHOULD THE LAW ALLOW AN ARREST WARRANT WHEN THE SUPPORTING DOCUMENTS AND THE WARRANT ITSELF WERE SIGNED AND TRANSMITTED BY E-MAIL, COMPUTER OR TELEPHONE? PURPOSE (More) AB 1004 (Gray) Page 2 The purpose of this bill is to make technological updates to procedures related to the judicial issuance of an arrest warrant. Existing law 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 § 817(a) and (b).) Existing law provides that in lieu of the written declaration, the magistrate may take an oral statement under oath under either of the following conditions: 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. The oath is made using telephone and facsimile transmission equipment, or made using telephone and electronic mail, under all of the following conditions: o 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 AB 1004 (Gray) Page 3 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. o 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. o If the magistrate decides to issue the 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 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 § 817(c).) Existing law 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 § 817(c)(2)(D).) Existing law provides that before issuing a warrant of probable AB 1004 (Gray) Page 4 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 § 817(d).) This bill allows an oath in support of a declaration of probable cause for arrest to be made using a telephone and computer server. This bill provides that the declarant's signature may be in the form of an electronic signature. This bill allows the magistrate to subsequently print the warrant, supporting affidavit, and attachments if received by electronic mail or computer server. This bill 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. This bill authorizes a signed arrest warrant to be transmitted by a computer server to the declarant. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the AB 1004 (Gray) Page 5 Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order issued by the Three-Judge Court three years earlier to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who opposed the state's motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. In an order dated April 11, 2013, the Three-Judge Court denied the state's motions, and ordered the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. However, in light of the real gains in reducing the prison population that have been made, although even greater AB 1004 (Gray) Page 6 reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: whether a measure erodes realignment; whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1. Need for This Bill According to the author: While AB 2505 authorized magistrates to receive search warrants by computer server and to sign search warrants digitally or electronically, it did not similarly authorize the use of electronic signature for arrest warrants even though obtaining original signatures faces similar challenges. Similar to the process for obtaining search warrants prior to AB 2505, the existing process for obtaining an arrest warrant is a lengthy process of approving, signing, and returning a warrant to the court that can be fraught with technical and hardware challenges such as jammed printers or exhausting an ink cartridge in the middle of the night. Also, even though existing law permits law enforcement to submit an arrest warrant via email, law enforcement must still travel to court, or if after hours, to the home of a magistrate to obtain a signature on an arrest AB 1004 (Gray) Page 7 warrant, thus wasting time and incurring needless travel costs. 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 by e-mail, but also by computer server, and would permit magistrates to sign search warrants digitally or electronically. By making the process for obtaining magistrate 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 regular 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. 2. Arrest Warrants Existing law allows search warrants to be received by magistrates by computers and allows the magistrate to authorize the warrant with a digital signature. When that bill was passed, arrest warrants were not included in that update of the law. This bill would allow an arrest warrant to be requested and authorized by e-mail or computer service and to be signed by a digital signature. ***************