BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 39         Hearing Date:    June 16, 2015    
          
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          |Author:    |Medina                                               |
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          |Version:   |December 1, 2014                                     |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|MK                                                   |
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                  Subject:  Search Warrants:  Electronic Submission



          HISTORY

          Source:   California Judges Association

          Prior Legislation:AB 1004 (Gray) - Chapter 460, Stats.  2013 
                         AB 2505 (A Strickland) - Chapter 98, Stats. 2002
                         SB 1970 (Schiff) - Chapter 692, Stats. 1998
                         SB 33 (Peace) - Chapter 563 Stats. 1995 
                         SB 1379 (Peace) - Chapter 1078 Stats. 1996 
                         SB 123 (Peace) - Chapter 279, Stats. 1997

          Support:  The Association of Deputy District Attorneys; The  
                    Association for Los Angeles Deputy Sheriffs;  
                    California District Attorneys Association; California  
                    Peace Officers' Association; Judicial Council of  
                    California;  Los Angeles County District Attorney's  
                    Office; Los Angeles Police Protective League; The  
                    Riverside Sheriffs Association

          Opposition:None known

          Assembly Floor Vote:                 76 - 0


          PURPOSE







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          The purpose of this bill is to revise the procedure by which a  
          magistrate may issue a search warrant by use of a telephone and  
          facsimile transmission, electronic mail, or computer server.
          
          Existing law 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. (Penal Code,  1526 (a).) 


          Existing law provides that in lieu of the written affidavit, the  
          magistrate may take an oral statement under oath under one of  
          the following conditions: 

                 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.

                 The oath is made using telephone and facsimile  
               transmission equipment, or made using telephone and  
               electronic mail, or telephone and computer server as  
               follows: 

                  o         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  








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                    magistrate utilizing facsimile transmission equipment,  
                    electronic mail, or computer server; and 


                  o         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.


                  o         If the magistrate decides to issue the search  
                    warrant, he or she shall: 


                                     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; 


                                     Note on the warrant the exact date  
                         and time of the issuance of the warrant; and 


                                     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. (Penal Code  1526 (b).) 


          Existing law 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  








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          duplicate original warrant, shall be returned as provided under  
          existing law. (Penal Code,  1526 (b) (1) (D).) 


          Existing law prohibits 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. (Penal Code,  1515.) 

           This bill 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. 

          This bill 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. 


          This bills 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. 


          This bill deletes the existing requirement that the affiant  
          telephonically acknowledge receipt of the signed search warrant.  



                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  








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          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and








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              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1. Need for The Bill
          
          According to the author:

               Current law requires as many as two phone calls and  
               three faxes or emails for after-hours and weekend  
               search warrant needs.  This is cumbersome, and  
               particularly so in large counties.  Some of these  
               counties, such as Riverside and San Bernardino, do this  
               electronically.  There are several electronic methods.  
               A commonly used method is to attach a PDF document to  
               an email.  Another method is a fax that is converted  
               into an e-mail attachment.  Either method results in a  
               Magistrate being notified via a text message on a cell  
               phone to look at the On Call Magistrate iPad, where the  
               search warrant and affidavit can be found, already  
               signed by the law enforcement officer.

               If all appropriate, there is a phone call and the law  
               enforcement officer is sworn in over the phone and  
               swears that all is true and correct.  The Magistrate  
               then electronically signs the search warrant and sends  
               it back to the officer via electronic means.  The  
               search warrant may then be served by reducing the  
               number of phone calls and emails or faxes, this is a  
               more efficient way of handling search warrants at night  
               on weekends.

          2. Electronic Submission of Warrants

          SB 1970 (Schiff) Chapter 692 in 1998 authorized an application  
          for a search warrant to be made by electronic mail including  
          that the affiant's signature in support of the affidavit for the  
          warrant can be made by digital signature.  This was updated in  
          2010 with AB 2505 (A. Strickland) to allow a magistrate to  
          return a search warrant by electronic signature.









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          This bill further streamlines the electronic warrant process by  
          providing that the affiant 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.  The bill further  
          provides that the completed search warrant as signed by the  
          magistrate and transmitted via fax , email or computer server  
          and received by the affiant shall be deemed the original  
          warrant.  

          



          3. Support
          
          The sponsor, the California Judges Association states:

               As currently written, 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 effective  
               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. 


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