BILL ANALYSIS Ó
AB 39
Page 1
ASSEMBLY THIRD READING
AB
39 (Medina)
As Introduced December 1, 2014
Majority vote
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|Committee |Votes |Ayes |Noes |
|---------------------+------+---------------------+------------------|
|Public Safety |6-0 |Quirk, Melendez, | |
| | |Gonzalez, Lackey, | |
| | |Low, Santiago | |
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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.
1)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.
2)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
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deemed to be the original warrant.
3)Deletes the existing requirement that the affiant telephonically
acknowledge receipt of the signed search 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.
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
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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 facsimile transmission equipment, electronic mail,
or computer server;
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; and
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.
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
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returned as provided under existing law.
4)Disallows a search warrant from being issued unless there is
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.
FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS: 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."
Analysis Prepared by: Sandy Uribe and Gregory Pagan / PUB. S. /
(916) 319-3744
FN:
0000059