BILL ANALYSIS Ó
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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