BILL ANALYSIS                                                                                                                                                                                                    



                                                                      AB 39


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          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










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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