BILL ANALYSIS                                                                                                                                                                                                    



                                                                        AB 39


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        ASSEMBLY THIRD READING


        AB  
        39 (Medina)


        As Introduced  December 1, 2014


        Majority vote


         --------------------------------------------------------------------- 
        |Committee            |Votes |Ayes                 |Noes              |
        |---------------------+------+---------------------+------------------|
        |Public Safety        |6-0   |Quirk, Melendez,     |                  |
        |                     |      |Gonzalez, Lackey,    |                  |
        |                     |      |Low, Santiago        |                  |
         --------------------------------------------------------------------- 


        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                                          
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        0000059