BILL ANALYSIS Ó
AB 39
Page 1
Date of Hearing: March 17, 2015
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
39 (Medina) - As Introduced December 1, 2014
SUMMARY: Revises the procedure by which a magistrate may issue
a search warrant by use of a telephone and facsimile
transmission, electronic mail, or computer server.
Specifically, this bill:
1)Requires an affiant to first sign his or her affidavit in
support of the application for the search warrant and then
transmit the proposed search warrant and all supporting
affidavits and documents to the magistrate.
2)Provides that the oath shall be made during a telephone
conversation with the magistrate, after the affiant has signed
his or her affidavit in support of the application for search
warrant and transmitted the documents to the magistrate.
3)States that the completed search warrant as signed by the
magistrate and transmitted via facsimile transmission,
electronic mail, or computer server, and received by the
affiant shall be deemed to be the original warrant.
4)Deletes the existing requirement that the affiant
telephonically acknowledge receipt of the signed search
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warrant.
EXISTING LAW:
1)States that 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. (Pen. Code, § 1526, subd. (a).)
2)Provides that in lieu of the written affidavit, the magistrate
may take an oral statement under oath under one 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 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.
b) The oath is made using telephone and facsimile
transmission equipment, or made using telephone and
electronic mail, or telephone and computer server as
follows:
i) The oath is made during a telephone conversation
with the magistrate, whereafter the affiant shall sign
his or her affidavit in support of the application for
the search warrant. The affiant's signature shall be in
the form of a digital signature or electronic 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
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facsimile transmission equipment, electronic mail, or
computer server; and
ii) 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.
iii) If the magistrate decides to issue the search
warrant, he or she shall:
(1) 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;
(2) Note on the warrant the exact date and time of
the issuance of the warrant; and
(3) 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. (Pen. Code, § 1526, subd. (b).)
3)Requires the magistrate to 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
original warrant and any affidavits or attachments in support
thereof, and any duplicate original warrant, shall be returned
as provided under existing law. (Pen. Code, § 1526, subd. (b)
(1) (D).)
4)Disallows a search warrant from being issued unless there is
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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. The application shall specify when applicable, that
the place to be searched is in the possession or under the
control of an attorney, physician, psychotherapist, or
clergyman. (Pen. Code, § 1515.)
FISCAL EFFECT: None
COMMENTS:
1)Author's Statement: According to the author, "AB 39 (Medina)
provides for a more streamlined method of issuing search
warrants by requiring an affiant to first sign his or her
affidavit and send the proposed search warrant and all
supporting affidavits and attachments via electronic means to
the judge, after which the affiant would make his or her oath
during a telephone conversation with the judge. AB 39
(Medina) allows for present and future technological
advancements."
2)Argument in Support: According to the California Judges
Association, the sponsor of this bill, "Penal Code § 1526 may
be interpreted to require as many as two phone calls and two
faxes for after-hours and weekend search warrant needs. This
is cumbersome, and particularly so in large counties. Some
counties, including Riverside and San Bernardino, do this
electronically. By using either fax or email and an iPad or
other mobile device, this process can happen more efficiently
and effectively without any reduction in the procedural
safeguards.
"AB 39 is a technical, noncontroversial bill that clarifies this
streamlined search warrant process, where available with
modern technology."
3)Argument in Opposition: The California Public Defenders
Association (CPDA), writes, "CPDA respectfully opposes AB 39
unless its provisions regarding which document constitutes the
original search warrant are removed. The original search
warrant may be the subject of litigation during any criminal
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prosecution that follows from an executed search. The
authenticity and integrity of the original warrant must be
safeguarded by all means necessary. Such safeguarding is best
accomplished by having the original warrant in the possession
of a neutral and detached magistrate. Law enforcement,
"engaged in the often competitive enterprise of ferreting out
crime," is not in a position of detached neutrality, and is
therefore not the appropriate custodian of a critical document
whose authorization depends upon a neutral judicial
assessment. ?
"Section 1526, 1528, and 1541, each enacted in 1872, operate in
concert precisely to ensure that the integrity of the original
warrant is not compromised. Any duplicate original warrant
may be compared with the original warrant, time-stamped at
issuance by the magistrate, to ensure that the two documents
are in fact duplicates, and that the document executed by law
enforcement is in fact executed precisely as the magistrate
authorized. In changing the identity of what constitutes an
original search warrant, AB 39 dramatically curtails the
magistrate's role in oversight of the process, and disrupts a
long-established means of ensuring public faith that any
intrusion on Fourth Amendment protections is premised on a
transparent process, one able to be carefully scrutinized by
the judiciary."
4)Prior Legislation:
a) AB 1004 (Gray), Chapter 460, Statutes of 2013, made
technological updates to procedures related to the judicial
issuance of a search warrant.
b) AB 2505 (Strickland), Chapter 98, Statues of 2010,
updated procedures regarding the long distance issuance of
a search warrant to reflect technological advances in
communication modes.
REGISTERED SUPPORT / OPPOSITION:
Support
AB 39
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California Judges Association (Sponsor)
Association of Deputy District Attorneys
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California Peace Officers' Association
Los Angeles Police Protective League
Riverside Sheriffs Association
Opposition
California Public Defenders Association
Analysis Prepared
by: Gregory Pagan/PUB. S./(916) 319-3744