BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 39| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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).) AB 39 Page 2 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. AB 39 Page 3 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.) AB 39 Page 4 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 AB 39 Page 5 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 **** AB 39 Page 6