California Legislature—2015–16 Regular Session

Assembly BillNo. 539


Introduced by Assembly Member Levine

February 23, 2015


An act to amend Section 1524 of the Penal Code, relating to search warrants.

LEGISLATIVE COUNSEL’S DIGEST

AB 539, as introduced, Levine. Search warrants.

Existing law provides that a search warrant may only be issued upon 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. Existing law also states the grounds upon which a search warrant may be issued, including, among other grounds, when a sample of the blood of a person constitutes evidence that tends to show a violation of specified laws prohibiting driving a vehicle while under the influence of alcohol or drugs, the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test, as specified, and the sample will be drawn from the person in a reasonable, medically approved manner.

Existing law prohibits a person from operating a vessel or manipulating water skis, an aquaplane, or similar device while under the influence of drugs or alcohol or when the person is addicted to drugs, as specified. Existing law defines a “vessel” for purposes of these provisions to include a watercraft or other artificial contrivance used or capable of being used as a means of transportation on water, except as specified.

This bill would authorize the issuance of a search warrant on the grounds that (1) a sample of the blood of a person constitutes evidence that tends to show a violation of specified laws prohibiting, among other crimes, the operation of a vessel, or manipulating water skis, an aquaplane, or a similar device, while under the influence of alcohol or drugs, (2) the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test, as specified, and (3) the sample will be drawn from the person in a reasonable, medically approved manner.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 1524 of the Penal Code, as amended by
2Section 1 of Chapter 872 of the Statutes of 2014, is amended to
3read:

4

1524.  

(a) A search warrant may be issued upon any of the
5following grounds:

6(1) When the property was stolen or embezzled.

7(2) When the property or things were used as the means of
8committing a felony.

9(3) When the property or things are in the possession of any
10person with the intent to use them as a means of committing a
11public offense, or in the possession of another to whom he or she
12may have delivered them for the purpose of concealing them or
13preventing them from being discovered.

14(4) When the property or things to be seized consist of any item
15or constitute any evidence that tends to show a felony has been
16committed, or tends to show that a particular person has committed
17a felony.

18(5) When the property or things to be seized consist of evidence
19that tends to show that sexual exploitation of a child, in violation
20of Section 311.3, or possession of matter depicting sexual conduct
21of a person under 18 years of age, in violation of Section 311.11,
22has occurred or is occurring.

23(6) When there is a warrant to arrest a person.

24(7) When a provider of electronic communication service or
25remote computing service has records or evidence, as specified in
26Section 1524.3, showing that property was stolen or embezzled
P3    1constituting a misdemeanor, or that property or things are in the
2possession of any person with the intent to use them as a means
3of committing a misdemeanor public offense, or in the possession
4of another to whom he or she may have delivered them for the
5purpose of concealing them or preventing their discovery.

6(8) When the property or things to be seized include an item or
7any evidence that tends to show a violation of Section 3700.5 of
8the Labor Code, or tends to show that a particular person has
9violated Section 3700.5 of the Labor Code.

10(9) When the property or things to be seized include a firearm
11or any other deadly weapon at the scene of, or at the premises
12occupied or under the control of the person arrested in connection
13with, a domestic violence incident involving a threat to human life
14or a physical assault as provided in Section 18250. This section
15does not affect warrantless seizures otherwise authorized by Section
1618250.

17(10) When the property or things to be seized include a firearm
18or any other deadly weapon that is owned by, or in the possession
19of, or in the custody or control of, a person described in subdivision
20(a) of Section 8102 of the Welfare and Institutions Code.

21(11) When the property or things to be seized include a firearm
22that is owned by, or in the possession of, or in the custody or
23control of, a person who is subject to the prohibitions regarding
24firearms pursuant to Section 6389 of the Family Code, if a
25prohibited firearm is possessed, owned, in the custody of, or
26controlled by a person against whom a protective order has been
27issued pursuant to Section 6218 of the Family Code, the person
28has been lawfully served with that order, and the person has failed
29to relinquish the firearm as required by law.

30(12) When the information to be received from the use of a
31tracking device constitutes evidence that tends to show that either
32a felony, a misdemeanor violation of the Fish and Game Code, or
33a misdemeanor violation of the Public Resources Code has been
34committed or is being committed, tends to show that a particular
35person has committed a felony, a misdemeanor violation of the
36Fish and Game Code, or a misdemeanor violation of the Public
37Resources Code, or is committing a felony, a misdemeanor
38violation of the Fish and Game Code, or a misdemeanor violation
39of the Public Resources Code, or will assist in locating an
40individual who has committed or is committing a felony, a
P4    1misdemeanor violation of the Fish and Game Code, or a
2misdemeanor violation of the Public Resources Code. A tracking
3device search warrant issued pursuant to this paragraph shall be
4executed in a manner meeting the requirements specified in
5subdivision (b) of Section 1534.

6(13) When a sample of the blood of a person constitutes
7evidence that tends to show a violation of Section 23140, 23152,
8or 23153 of the Vehicle Code and the person from whom the
9sample is being sought has refused an officer’s request to submit
10to, or has failed to complete, a blood test as required by Section
1123612 of the Vehicle Code, and the sample will be drawn from
12the person in a reasonable, medically approved manner. This
13paragraph is not intended to abrogate a court’s mandate to
14determine the propriety of the issuance of a search warrant on a
15case-by-case basis.

16(14) Beginning January 1, 2016, the property or things to be
17seized are firearms or ammunition or both that are owned by, in
18the possession of, or in the custody or control of a person who is
19the subject of a gun violence restraining order that has been issued
20pursuant to Division 3.2 (commencing with Section 18100) of
21Title 2 of Part 6, if a prohibited firearm or ammunition or both is
22possessed, owned, in the custody of, or controlled by a person
23against whom a gun violence restraining order has been issued,
24 the person has been lawfully served with that order, and the person
25has failed to relinquish the firearm as required by law.

begin insert

26(15) (A) When all of the following apply:

end insert
begin insert

27(i) A sample of the blood of a person constitutes evidence that
28tends to show a violation of subdivision (b), (c), (d), (e), or (f) of
29Section 655 of the Harbors and Navigation Code.

end insert
begin insert

30(ii) The person from whom the sample is being sought has refused
31an officer’s request to submit to, or has failed to complete, a blood
32test as required by Section 655.1 of the Harbors and Navigation
33Code.

end insert
begin insert

34(iii) The sample will be drawn from the person in a reasonable,
35medically approved manner.

end insert
begin insert

36(B) This paragraph is not intended to abrogate a court’s
37mandate to determine the propriety of the issuance of a search
38warrant on a case-by-case basis.

end insert

39(b) The property, things, person, or persons described in
40subdivision (a) may be taken on the warrant from any place, or
P5    1from any person in whose possession the property or things may
2be.

3(c) Notwithstanding subdivision (a) or (b), no search warrant
4shall issue for any documentary evidence in the possession or
5under the control of any person who is a lawyer as defined in
6Section 950 of the Evidence Code, a physician as defined in Section
7990 of the Evidence Code, a psychotherapist as defined in Section
81010 of the Evidence Code, or a member of the clergy as defined
9in Section 1030 of the Evidence Code, and who is not reasonably
10suspected of engaging or having engaged in criminal activity
11related to the documentary evidence for which a warrant is
12requested unless the following procedure has been complied with:

13(1) At the time of the issuance of the warrant, the court shall
14appoint a special master in accordance with subdivision (d) to
15 accompany the person who will serve the warrant. Upon service
16of the warrant, the special master shall inform the party served of
17the specific items being sought and that the party shall have the
18opportunity to provide the items requested. If the party, in the
19judgment of the special master, fails to provide the items requested,
20the special master shall conduct a search for the items in the areas
21indicated in the search warrant.

22(2) (A) If the party who has been served states that an item or
23items should not be disclosed, they shall be sealed by the special
24master and taken to court for a hearing.

25(B) At the hearing, the party searched shall be entitled to raise
26any issues that may be raised pursuant to Section 1538.5 as well
27as a claim that the item or items are privileged, as provided by
28law. The hearing shall be held in the superior court. The court shall
29 provide sufficient time for the parties to obtain counsel and make
30any motions or present any evidence. The hearing shall be held
31within three days of the service of the warrant unless the court
32makes a finding that the expedited hearing is impracticable. In that
33case the matter shall be heard at the earliest possible time.

34(C) If an item or items are taken to court for a hearing, any
35limitations of time prescribed in Chapter 2 (commencing with
36Section 799) of Title 3 of Part 2 shall be tolled from the time of
37the seizure until the final conclusion of the hearing, including any
38associated writ or appellate proceedings.

39(3) The warrant shall, whenever practicable, be served during
40normal business hours. In addition, the warrant shall be served
P6    1upon a party who appears to have possession or control of the
2items sought. If, after reasonable efforts, the party serving the
3warrant is unable to locate the person, the special master shall seal
4and return to the court, for determination by the court, any item
5that appears to be privileged as provided by law.

6(d) (1) As used in this section, a “special master” is an attorney
7who is a member in good standing of the California State Bar and
8who has been selected from a list of qualified attorneys that is
9maintained by the State Bar particularly for the purposes of
10conducting the searches described in this section. These attorneys
11shall serve without compensation. A special master shall be
12considered a public employee, and the governmental entity that
13caused the search warrant to be issued shall be considered the
14employer of the special master and the applicable public entity,
15for purposes of Division 3.6 (commencing with Section 810) of
16Title 1 of the Government Code, relating to claims and actions
17against public entities and public employees. In selecting the
18special master, the court shall make every reasonable effort to
19ensure that the person selected has no relationship with any of the
20parties involved in the pending matter. Any information obtained
21by the special master shall be confidential and may not be divulged
22except in direct response to inquiry by the court.

23(2) In any case in which the magistrate determines that, after
24reasonable efforts have been made to obtain a special master, a
25special master is not available and would not be available within
26a reasonable period of time, the magistrate may direct the party
27seeking the order to conduct the search in the manner described
28in this section in lieu of the special master.

29(e) Any search conducted pursuant to this section by a special
30master may be conducted in a manner that permits the party serving
31the warrant or his or her designee to accompany the special master
32as he or she conducts his or her search. However, that party or his
33or her designee may not participate in the search nor shall he or
34she examine any of the items being searched by the special master
35except upon agreement of the party upon whom the warrant has
36been served.

37(f) As used in this section, “documentary evidence” includes,
38but is not limited to, writings, documents, blueprints, drawings,
39photographs, computer printouts, microfilms, X-rays, files,
P7    1diagrams, ledgers, books, tapes, audio and video recordings, films,
2and papers of any type or description.

3(g) No warrant shall issue for any item or items described in
4Section 1070 of the Evidence Code.

5(h) Notwithstanding any other law, no claim of attorney work
6product as described in Chapter 4 (commencing with Section
72018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall
8be sustained where there is probable cause to believe that the
9lawyer is engaging or has engaged in criminal activity related to
10the documentary evidence for which a warrant is requested unless
11it is established at the hearing with respect to the documentary
12evidence seized under the warrant that the services of the lawyer
13were not sought or obtained to enable or aid anyone to commit or
14plan to commit a crime or a fraud.

15(i) Nothing in this section is intended to limit an attorney’s
16ability to request an in camera hearing pursuant to the holding of
17the Supreme Court of California in People v. Superior Court (Laff)
18(2001) 25 Cal.4th 703.

19(j) In addition to any other circumstance permitting a magistrate
20to issue a warrant for a person or property in another county, when
21the property or things to be seized consist of any item or constitute
22any evidence that tends to show a violation of Section 530.5, the
23magistrate may issue a warrant to search a person or property
24located in another county if the person whose identifying
25information was taken or used resides in the same county as the
26issuing court.

27(k) This section shall not be construed to create a cause of action
28against any foreign or California corporation, its officers,
29employees, agents, or other specified persons for providing location
30information.



O

    99