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 AB 39 Page 2 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 AB 39 Page 3 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 AB 39 Page 4 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 AB 39 Page 5 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 Page 6 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