BILL NUMBER: AB 39 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Medina
DECEMBER 1, 2014
An act to amend Section 1526 of the Penal Code, relating to search
warrants.
LEGISLATIVE COUNSEL'S DIGEST
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 1. Section 1526 of the Penal Code is amended to read:
1526. (a) 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 or her affidavit or their affidavits
in writing, and cause the affidavit or affidavits to be subscribed by
the party or parties making them.
(b) In lieu of the written affidavit required in subdivision (a),
the magistrate may take an oral statement under oath under one of the
following conditions:
(1) The oath shall be made under penalty of perjury and recorded
and transcribed. The transcribed statement shall be deemed to be an
affidavit for the purposes of this chapter. In these cases, 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 in these cases, the
sworn oral statement shall be recorded by a certified court reporter
and the transcript of the statement shall be certified by the
reporter, after which the magistrate receiving it shall certify the
transcript which shall be filed with the clerk of the court.
(2) The oath is made using telephone and facsimile transmission
equipment, telephone and electronic mail, or telephone and computer
server, as follows:
(A) The oath is made during a telephone conversation with the
magistrate, whereafter after the
affiant shall sign has signed his or
her affidavit in support of the application for the search
warrant. warrant and transmitted the proposed search
warrant and all supporting affidavits and documents to the
magistrate. The affiant's signature shall
may be in the form of a digital signature or electronic
signature if electronic mail or computer server 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, electronic mail, or computer server.
(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, digital
signature, or electronic signature is acknowledged as genuine.
(C) If the magistrate decides to issue the search warrant, he or
she shall:
(i) Sign the warrant. The magistrate's signature may be in the
form of a digital signature or electronic signature if electronic
mail or computer server is used for transmission to the
magistrate. by the magistrate.
(ii) Note on the warrant the exact date and time of the issuance
of the warrant.
(iii) Indicate on the warrant that the oath of the affiant was
administered orally over the telephone.
The completed search warrant, as signed by the magistrate, shall
be deemed to be the original warrant.
(D) The magistrate shall transmit via facsimile transmission
equipment, electronic mail, or computer server, 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
duplicate affiant. The completed search warrant, as
signed by the magistrate and received by the affiant, shall be deemed
to be the original warrant. The original warrant and any
affidavits or attachments in support thereof shall be returned as
provided in Section 1534.