AB 39, as introduced, Medina. Search warrants: electronic submission.
Existing law establishes various grounds for the issuance of a search warrant. Existing law requires a search warrant to be issued upon 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.
Existing law authorizes a magistrate, before issuing a warrant, to examine on oath the person seeking the warrant and requires the magistrate to take his or her affidavit in writing. Existing law authorizes the magistrate, in lieu of a written affidavit, to take an oral statement under oath using a telephone and facsimile transmission equipment, by using a telephone and electronic mail, or by using a telephone and computer server. Existing law requires, if one of those means is utilized, that the oath be made during a telephone conversation with the magistrate, after which the affiant signs the affidavit and sends the proposed search warrant and all supporting affidavits and attachments to the magistrate. Existing law also requires, if one of those means is utilized, the affiant to telephonically acknowledge the receipt of the signed search warrant and designates the completed search warrant, as signed by the magistrate, as the original warrant and the completed search warrant, as signed by the magistrate and received by the affiant, as the duplicate original warrant.
This bill would instead require an affiant to first sign his or her affidavit and send the proposed search warrant and all supporting affidavits and attachments to the magistrate, after which the affiant would make his or her oath during a telephone conversation with the magistrate. The bill would also delete the requirement that the affiant telephonically acknowledge receipt of the signed search warrant and would designate the completed search warrant, signed by the magistrate and received by the affiant, as the original warrant.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1526 of the Penal Code is amended to
(a) The magistrate, before issuing the warrant, may
4examine on oath the person seeking the warrant and any witnesses
5the person may produce, and shall take his or her affidavit or their
6affidavits in writing, and cause the affidavit or affidavits to be
7subscribed by the party or parties making them.
8(b) In lieu of the written affidavit required in subdivision (a),
9the magistrate may take an oral statement under oath under one of
10the following conditions:
11(1) The oath shall be made under penalty of perjury and recorded
12and transcribed. The transcribed statement shall be deemed to be
13an affidavit for the purposes of this chapter. In these cases, the
14recording of the sworn oral statement and the transcribed statement
15shall be certified by the magistrate receiving it and shall be filed
16with the clerk of the court. In the alternative in these cases, the
17sworn oral statement shall be recorded by a certified court reporter
18and the transcript of the statement shall be certified by the reporter,
19after which the magistrate receiving it shall certify the transcript
20which shall be filed with the clerk of the court.
21(2) The oath is made using telephone and facsimile transmission
22equipment, telephone and electronic mail, or telephone and
23computer server, as follows:
24(A) The oath is made during a telephone conversation with the
begin delete whereafterend delete the affiant begin delete shall signend delete his
P3 1or her affidavit in support of the application for the search
begin delete warrant.end delete
2 The affiant’s
begin delete shallend delete be in the form of a digital signature or
5electronic signature if electronic mail or computer server is used
6for transmission to the magistrate.
begin delete The proposed search warrant
7and all supporting affidavits and attachments shall then be
8transmitted to the magistrate utilizing facsimile transmission
9equipment, electronic mail, or computer server.end delete
10(B) The magistrate shall confirm with the affiant the receipt of
11the search warrant and the supporting affidavits and attachments.
12The magistrate shall verify that all the pages sent have been
13received, that all pages are legible, and that the affiant’s signature,
14digital signature, or electronic signature is acknowledged as
16(C) If the magistrate decides to issue the search warrant, he or
18(i) Sign the warrant. The magistrate’s signature may be in the
19form of a digital signature or electronic signature if electronic mail
20or computer server is used for transmission
begin delete to the magistrate.end delete
22(ii) Note on the warrant the exact date and time of the issuance
23of the warrant.
24(iii) Indicate on the warrant that the oath of the affiant was
25administered orally over the telephone.
26The completed search warrant, as signed by the magistrate, shall
27be deemed to be the original warrant.
28(D) The magistrate shall transmit via facsimile transmission
29equipment, electronic mail, or computer server, the signed search
30warrant to the
begin delete affiant who shall telephonically acknowledge its original warrant and any affidavits
31receipt. The magistrate shall then telephonically authorize the
32affiant to write the words “duplicate original” on the copy of the
33completed search warrant transmitted to the affiant and this
34document shall be deemed to be a duplicate original search warrant.
35The duplicateend delete
P4 1or attachments in support thereof shall be returned as provided in