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


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