BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 39|
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THIRD READING
Bill No: AB 39
Author: Medina (D)
Introduced:12/1/14
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/16/15
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
ASSEMBLY FLOOR: 76-0, 3/26/15 - See last page for vote
SUBJECT: Search warrants: electronic submission
SOURCE: California Judges Association
DIGEST: This bill 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.
ANALYSIS:
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. (Penal Code § 1526 (a).)
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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, where after 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
signature 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; 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.
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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. (Penal Code § 1526 (b).)
1)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. (Penal Code § 1526 (b) (1)
(D).)
2)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.)
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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
warrant.
Background
SB 1970 (Schiff, Chapter 692, Statutes of 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, Chapter
98, Statutes of 2010) to allow a magistrate to return a search
warrant by electronic signature.
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. This bill further
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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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified 6/17/15)
California Judges Association (source)
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California District Attorneys Association
California Peace Officers' Association
Judicial Council of California
Los Angeles County District Attorney's Office
Los Angeles Police Protective League
Riverside Sheriffs' Association
OPPOSITION: (Verified 6/17/15)
None received
ASSEMBLY FLOOR: 76-0, 3/26/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,
Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,
Daly, Dodd, Eggman, Frazier, Beth Gaines, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones,
Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes,
McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,
O'Donnell, Olsen, Patterson, Perea, Quirk, Ridley-Thomas,
Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond,
Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Gallagher, Jones-Sawyer, Mathis, Rendon
Prepared by:Mary Kennedy / PUB. S. /
6/17/15 16:59:03
**** END ****
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