Amended in Senate June 23, 2015

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 amended, 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.

begin insert

This bill would incorporate changes to Section 1524 of the Penal Code proposed by both this bill and AB 1104, which would become operative only if both bills are enacted and become effective on or before January 1, 2016, and this bill is chaptered last.

end insert

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.

P3    1(6) When there is a warrant to arrest a person.

2(7) When a provider of electronic communication service or
3remote computing service has records or evidence, as specified in
4Section 1524.3, showing that property was stolen or embezzled
5constituting a misdemeanor, or that property or things are in the
6possession of any person with the intent to use them as a means
7of committing a misdemeanor public offense, or in the possession
8of another to whom he or she may have delivered them for the
9purpose of concealing them or preventing their discovery.

10(8) When the property or things to be seized include an item or
11any evidence that tends to show a violation of Section 3700.5 of
12the Labor Code, or tends to show that a particular person has
13violated Section 3700.5 of the Labor Code.

14(9) When the property or things to be seized include a firearm
15or any other deadly weapon at the scene of, or at the premises
16occupied or under the control of the person arrested in connection
17with, a domestic violence incident involving a threat to human life
18or a physical assault as provided in Section 18250. This section
19does not affect warrantless seizures otherwise authorized by Section
2018250.

21(10) When the property or things to be seized include a firearm
22or any other deadly weapon that is owned by, or in the possession
23of, or in the custody or control of, a person described in subdivision
24(a) of Section 8102 of the Welfare and Institutions Code.

25(11) When the property or things to be seized include a firearm
26that is owned by, or in the possession of, or in the custody or
27control of, a person who is subject to the prohibitions regarding
28firearms pursuant to Section 6389 of the Family Code, if a
29prohibited firearm is possessed, owned, in the custody of, or
30controlled by a person against whom a protective order has been
31issued pursuant to Section 6218 of the Family Code, the person
32has been lawfully served with that order, and the person has failed
33to relinquish the firearm as required by law.

34(12) When the information to be received from the use of a
35tracking device constitutes evidence that tends to show that either
36a felony, a misdemeanor violation of the Fish and Game Code, or
37a misdemeanor violation of the Public Resources Code has been
38committed or is being committed, tends to show that a particular
39person has committed a felony, a misdemeanor violation of the
40Fish and Game Code, or a misdemeanor violation of the Public
P4    1Resources Code, or is committing a felony, a misdemeanor
2violation of the Fish and Game Code, or a misdemeanor violation
3of the Public Resources Code, or will assist in locating an
4individual who has committed or is committing a felony, a
5misdemeanor violation of the Fish and Game Code, or a
6misdemeanor violation of the Public Resources Code. A tracking
7device search warrant issued pursuant to this paragraph shall be
8executed in a manner meeting the requirements specified in
9subdivision (b) of Section 1534.

10(13) When a sample of the blood of a person constitutes
11evidence that tends to show a violation of Section 23140, 23152,
12or 23153 of the Vehicle Code and the person from whom the
13sample is being sought has refused an officer’s request to submit
14to, or has failed to complete, a blood test as required by Section
1523612 of the Vehicle Code, and the sample will be drawn from
16the person in a reasonable, medically approved manner. This
17paragraph is not intended to abrogate a court’s mandate to
18determine the propriety of the issuance of a search warrant on a
19case-by-case basis.

20(14) Beginning January 1, 2016, the property or things to be
21seized are firearms or ammunition or both that are owned by, in
22the possession of, or in the custody or control of a person who is
23the subject of a gun violence restraining order that has been issued
24pursuant to Division 3.2 (commencing with Section 18100) of
25Title 2 of Part 6, if a prohibited firearm or ammunition or both is
26possessed, owned, in the custody of, or controlled by a person
27against whom a gun violence restraining order has been issued,
28 the person has been lawfully served with that order, and the person
29has failed to relinquish the firearm as required by law.

30(15) (A) When all of the following apply:

31(i) A sample of the blood of a person constitutes evidence that
32tends to show a violation of subdivision (b), (c), (d), (e), or (f) of
33Section 655 of the Harbors and Navigation Code.

34(ii) The person from whom the sample is being sought has
35refused an officer’s request to submit to, or has failed to complete,
36a blood test as required by Section 655.1 of the Harbors and
37Navigation Code.

38(iii) The sample will be drawn from the person in a reasonable,
39medically approved manner.

P5    1(B) This paragraph is not intended to abrogate a court’s mandate
2to determine the propriety of the issuance of a search warrant on
3a case-by-case basis.

4(b) The property, things, person, or persons described in
5subdivision (a) may be taken on the warrant from any place, or
6from any person in whose possession the property or things may
7be.

8(c) Notwithstanding subdivision (a) or (b), no search warrant
9shall issue for any documentary evidence in the possession or
10under the control of any person who is a lawyer as defined in
11Section 950 of the Evidence Code, a physician as defined in Section
12990 of the Evidence Code, a psychotherapist as defined in Section
131010 of the Evidence Code, or a member of the clergy as defined
14in Section 1030 of the Evidence Code, and who is not reasonably
15suspected of engaging or having engaged in criminal activity
16related to the documentary evidence for which a warrant is
17requested unless the following procedure has been complied with:

18(1) At the time of the issuance of the warrant, the court shall
19appoint a special master in accordance with subdivision (d) to
20 accompany the person who will serve the warrant. Upon service
21of the warrant, the special master shall inform the party served of
22the specific items being sought and that the party shall have the
23opportunity to provide the items requested. If the party, in the
24judgment of the special master, fails to provide the items requested,
25the special master shall conduct a search for the items in the areas
26indicated in the search warrant.

27(2) (A) If the party who has been served states that an item or
28items should not be disclosed, they shall be sealed by the special
29master and taken to court for a hearing.

30(B) At the hearing, the party searched shall be entitled to raise
31any issues that may be raised pursuant to Section 1538.5 as well
32as a claim that the item or items are privileged, as provided by
33law. The hearing shall be held in the superior court. The court shall
34 provide sufficient time for the parties to obtain counsel and make
35any motions or present any evidence. The hearing shall be held
36within three days of the service of the warrant unless the court
37makes a finding that the expedited hearing is impracticable. In that
38case the matter shall be heard at the earliest possible time.

39(C) If an item or items are taken to court for a hearing, any
40limitations of time prescribed in Chapter 2 (commencing with
P6    1Section 799) of Title 3 of Part 2 shall be tolled from the time of
2the seizure until the final conclusion of the hearing, including any
3associated writ or appellate proceedings.

4(3) The warrant shall, whenever practicable, be served during
5normal business hours. In addition, the warrant shall be served
6upon a party who appears to have possession or control of the
7items sought. If, after reasonable efforts, the party serving the
8warrant is unable to locate the person, the special master shall seal
9and return to the court, for determination by the court, any item
10that appears to be privileged as provided by law.

11(d) (1) As used in this section, a “special master” is an attorney
12who is a member in good standing of the California State Bar and
13who has been selected from a list of qualified attorneys that is
14maintained by the State Bar particularly for the purposes of
15conducting the searches described in this section. These attorneys
16shall serve without compensation. A special master shall be
17considered a public employee, and the governmental entity that
18caused the search warrant to be issued shall be considered the
19employer of the special master and the applicable public entity,
20for purposes of Division 3.6 (commencing with Section 810) of
21Title 1 of the Government Code, relating to claims and actions
22against public entities and public employees. In selecting the
23special master, the court shall make every reasonable effort to
24ensure that the person selected has no relationship with any of the
25parties involved in the pending matter. Any information obtained
26by the special master shall be confidential and may not be divulged
27except in direct response to inquiry by the court.

28(2) In any case in which the magistrate determines that, after
29reasonable efforts have been made to obtain a special master, a
30special master is not available and would not be available within
31a reasonable period of time, the magistrate may direct the party
32seeking the order to conduct the search in the manner described
33in this section in lieu of the special master.

34(e) Any search conducted pursuant to this section by a special
35master may be conducted in a manner that permits the party serving
36the warrant or his or her designee to accompany the special master
37as he or she conducts his or her search. However, that party or his
38or her designee may not participate in the search nor shall he or
39she examine any of the items being searched by the special master
P7    1except upon agreement of the party upon whom the warrant has
2been served.

3(f) As used in this section, “documentary evidence” includes,
4but is not limited to, writings, documents, blueprints, drawings,
5photographs, computer printouts, microfilms, X-rays, files,
6diagrams, ledgers, books, tapes, audio and video recordings, films,
7 and papers of any type or description.

8(g) No warrant shall issue for any item or items described in
9Section 1070 of the Evidence Code.

10(h) Notwithstanding any other law, no claim of attorney work
11product as described in Chapter 4 (commencing with Section
122018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall
13be sustained where there is probable cause to believe that the
14lawyer is engaging or has engaged in criminal activity related to
15the documentary evidence for which a warrant is requested unless
16it is established at the hearing with respect to the documentary
17evidence seized under the warrant that the services of the lawyer
18were not sought or obtained to enable or aid anyone to commit or
19plan to commit a crime or a fraud.

20(i) Nothing in this section is intended to limit an attorney’s
21ability to request an in camera hearing pursuant to the holding of
22the Supreme Court of California in People v. Superior Court (Laff)
23(2001) 25 Cal.4th 703.

24(j) In addition to any other circumstance permitting a magistrate
25to issue a warrant for a person or property in another county, when
26the property or things to be seized consist of any item or constitute
27any evidence that tends to show a violation of Section 530.5, the
28magistrate may issue a warrant to search a person or property
29located in another county if the person whose identifying
30information was taken or used resides in the same county as the
31issuing court.

32(k) This section shall not be construed to create a cause of action
33against any foreign or California corporation, its officers,
34employees, agents, or other specified persons for providing location
35information.

36begin insert

begin insertSEC. 1.5.end insert  

end insert

begin insertSection 1524 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

37

1524.  

(a) A search warrant may be issued upon any of the
38following grounds:

39(1) When the property was stolen or embezzled.

P8    1(2) When the property or things were used as the means of
2committing a felony.

3(3) When the property or things are in the possession of any
4person with the intent to use them as a means of committing a
5public offense, or in the possession of another to whom he or she
6may have delivered them for the purpose of concealing them or
7preventing them from being discovered.

8(4) When the property or things to be seized consist ofbegin delete anyend deletebegin insert anend insert
9 item or constitutebegin delete anyend delete evidence that tends to show a felony has
10been committed, or tends to show that a particular person has
11committed a felony.

12(5) When the property or things to be seized consist of evidence
13that tends to show that sexual exploitation of a child, in violation
14of Section 311.3, or possession of matter depicting sexual conduct
15of a person under 18 years of age, in violation of Section 311.11,
16has occurred or is occurring.

17(6) When there is a warrant to arrest a person.

18(7) When a provider of electronic communication service or
19remote computing service has records or evidence, as specified in
20Section 1524.3, showing that property was stolen or embezzled
21constituting a misdemeanor, or that property or things are in the
22possession of any person with the intent to use them as a means
23of committing a misdemeanor public offense, or in the possession
24of another to whom he or she may have delivered them for the
25purpose of concealing them or preventing their discovery.

26(8) When the property or things to be seized include an item or
27begin delete anyend delete evidence that tends to show a violation of Section 3700.5 of
28the Labor Code, or tends to show that a particular person has
29violated Section 3700.5 of the Labor Code.

30(9) When the property or things to be seized include a firearm
31orbegin delete anyend delete other deadly weapon at the scene of, or at the premises
32occupied or under the control of the person arrested in connection
33with, a domestic violence incident involving a threat to human life
34or a physical assault as provided in Section 18250. This section
35does not affect warrantless seizures otherwise authorized by Section
3618250.

37(10) When the property or things to be seized include a firearm
38orbegin delete anyend delete other deadly weapon that is owned by, or in the possession
39of, or in the custody or control of, a person described in subdivision
40(a) of Section 8102 of the Welfare and Institutions Code.

P9    1(11) When the property or things to be seized include a firearm
2that is owned by, or in the possession of, or in the custody or
3control of, a person who is subject to the prohibitions regarding
4firearms pursuant to Section 6389 of the Family Code, if a
5prohibited firearm is possessed, owned, in the custody of, or
6controlled by a person against whom a protective order has been
7issued pursuant to Section 6218 of the Family Code, the person
8has been lawfully served with that order, and the person has failed
9to relinquish the firearm as required by law.

10(12) When the information to be received from the use of a
11tracking device constitutes evidence that tends to show that either
12a felony, a misdemeanor violation of the Fish and Game Code, or
13a misdemeanor violation of the Public Resources Code has been
14committed or is being committed, tends to show that a particular
15person has committed a felony, a misdemeanor violation of the
16Fish and Game Code, or a misdemeanor violation of the Public
17Resources Code, or is committing a felony, a misdemeanor
18violation of the Fish and Game Code, or a misdemeanor violation
19of the Public Resources Code, or will assist in locating an
20individual who has committed or is committing a felony, a
21misdemeanor violation of the Fish and Game Code, or a
22misdemeanor violation of the Public Resources Code. A tracking
23device search warrant issued pursuant to this paragraph shall be
24executed in a manner meeting the requirements specified in
25subdivision (b) of Section 1534.

26(13) When a sample of the blood of a person constitutes
27evidence that tends to show a violation of Section 23140, 23152,
28or 23153 of the Vehicle Code and the person from whom the
29sample is being sought has refused an officer’s request to submit
30to, or has failed to complete, a blood test as required by Section
3123612 of the Vehicle Code, and the sample will be drawn from
32the person in a reasonable, medically approved manner. This
33paragraph is not intended to abrogate a court’s mandate to
34determine the propriety of the issuance of a search warrant on a
35case-by-case basis.

36(14) Beginning January 1, 2016, the property or things to be
37seized are firearms or ammunition or both that are owned by, in
38the possession of, or in the custody or control of a person who is
39the subject of a gun violence restraining order that has been issued
40pursuant to Division 3.2 (commencing with Section 18100) of
P10   1Title 2 of Part 6, if a prohibited firearm or ammunition or both is
2possessed, owned, in the custody of, or controlled by a person
3against whom a gun violence restraining order has been issued,
4 the person has been lawfully served with that order, and the person
5has failed to relinquish the firearm as required by law.

begin insert

6(15) When the property or things to be seized are controlled
7substances or a device, contrivance, instrument, or paraphanelia
8used for unlawfully using or administering a controlled substance
9pursuant to the authority described in Section 11472 of the Health
10and Safety Code.

end insert
begin insert

11(16) (A) When all of the following apply:

end insert
begin insert

12(i) A sample of the blood of a person constitutes evidence that
13tends to show a violation of subdivision (b), (c), (d), (e), or (f) of
14Section 655 of the Harbors and Navigation Code.

end insert
begin insert

15(ii) The person from whom the sample is being sought has
16refused an officer’s request to submit to, or has failed to complete,
17a blood test as required by Section 655.1 of the Harbors and
18Navigation Code.

end insert
begin insert

19(iii) The sample will be drawn from the person in a reasonable,
20medically approved manner.

end insert
begin insert

21(B) This paragraph is not intended to abrogate a court’s
22mandate to determine the propriety of the issuance of a search
23warrant on a case-by-case basis.

end insert

24(b) The property, things, person, or persons described in
25subdivision (a) may be taken on the warrant from any place, or
26from any person in whose possession the property or things may
27be.

28(c) Notwithstanding subdivision (a) or (b), no search warrant
29shall issue for any documentary evidence in the possession or
30under the control of any person who is a lawyer as defined in
31Section 950 of the Evidence Code, a physician as defined in Section
32990 of the Evidence Code, a psychotherapist as defined in Section
331010 of the Evidence Code, or a member of the clergy as defined
34in Section 1030 of the Evidence Code, and who is not reasonably
35suspected of engaging or having engaged in criminal activity
36related to the documentary evidence for which a warrant is
37requested unless the following procedure has been complied with:

38(1) At the time of the issuance of the warrant, the court shall
39appoint a special master in accordance with subdivision (d) to
40accompany the person who will serve the warrant. Upon service
P11   1of the warrant, the special master shall inform the party served of
2the specific items being sought and that the party shall have the
3opportunity to provide the items requested. If the party, in the
4judgment of the special master, fails to provide the items requested,
5the special master shall conduct a search for the items in the areas
6indicated in the search warrant.

7(2) (A) If the party who has been served states that an item or
8items should not be disclosed, they shall be sealed by the special
9master and taken to court for a hearing.

10(B) At the hearing, the party searched shall be entitled to raise
11any issues that may be raised pursuant to Section 1538.5 as well
12as a claim that the item or items are privileged, as provided by
13law. The hearing shall be held in the superior court. The court shall
14provide sufficient time for the parties to obtain counsel and make
15begin delete anyend delete motions or presentbegin delete anyend delete evidence. The hearing shall be held
16within three days of the service of the warrant unless the court
17makes a finding that the expedited hearing is impracticable. In that
18begin delete caseend deletebegin insert case,end insert the matter shall be heard at the earliest possible time.

19(C) If an item or items are taken to court for a hearing, any
20limitations of time prescribed in Chapter 2 (commencing with
21Section 799) of Title 3 of Part 2 shall be tolled from the time of
22the seizure until the final conclusion of the hearing, including any
23associated writ or appellate proceedings.

24(3) The warrant shall, whenever practicable, be served during
25normal business hours. In addition, the warrant shall be served
26upon a party who appears to have possession or control of the
27items sought. If, after reasonable efforts, the party serving the
28warrant is unable to locate the person, the special master shall seal
29and return to the court, for determination by the court, any item
30that appears to be privileged as provided by law.

31(d) (1) As used in this section, a “special master” is an attorney
32who is a member in good standing of the California State Bar and
33who has been selected from a list of qualified attorneys that is
34maintained by the State Bar particularly for the purposes of
35conducting the searches described in this section. These attorneys
36shall serve without compensation. A special master shall be
37considered a public employee, and the governmental entity that
38caused the search warrant to be issued shall be considered the
39employer of the special master and the applicable public entity,
40for purposes of Division 3.6 (commencing with Section 810) of
P12   1Title 1 of the Government Code, relating to claims and actions
2against public entities and public employees. In selecting the
3special master, the court shall make every reasonable effort to
4ensure that the person selected has no relationship with any of the
5parties involved in the pending matter.begin delete Any informationend delete
6begin insert Informationend insert obtained by the special master shall be confidential
7and may not be divulged except in direct response to inquiry by
8the court.

9(2) In any case in which the magistrate determines that, after
10reasonable efforts have been made to obtain a special master, a
11special master is not available and would not be available within
12a reasonable period of time, the magistrate may direct the party
13seeking the order to conduct the search in the manner described
14in this section in lieu of the special master.

15(e) Any search conducted pursuant to this section by a special
16master may be conducted in a manner that permits the party serving
17the warrant or his or her designee to accompany the special master
18as he or she conducts his or her search. However, that party or his
19or her designee may not participate in the search nor shall he or
20she examine any of the items being searched by the special master
21except upon agreement of the party upon whom the warrant has
22been served.

23(f) As used in this section, “documentary evidence” includes,
24but is not limited to, writings, documents, blueprints, drawings,
25photographs, computer printouts, microfilms, X-rays, files,
26diagrams, ledgers, books, tapes, audio and video recordings, films,
27and papers of any type or description.

28(g) No warrant shall issue for any item or items described in
29Section 1070 of the Evidence Code.

30(h) Notwithstanding any other law, no claim of attorney work
31product as described in Chapter 4 (commencing with Section
322018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall
33be sustained where there is probable cause to believe that the
34lawyer is engaging or has engaged in criminal activity related to
35the documentary evidence for which a warrant is requested unless
36it is established at the hearing with respect to the documentary
37evidence seized under the warrant that the services of the lawyer
38were not sought or obtained to enable or aid anyone to commit or
39plan to commit a crime or a fraud.

P13   1(i) Nothing in this section is intended to limit an attorney’s
2ability to request anbegin delete in cameraend deletebegin insert in-cameraend insert hearing pursuant to the
3holding of the Supreme Court of California in People v. Superior
4Court (Laff) (2001) 25 Cal.4th 703.

5(j) In addition to any other circumstance permitting a magistrate
6to issue a warrant for a person or property in another county, when
7the property or things to be seized consist of any item or constitute
8begin delete anyend delete evidence that tends to show a violation of Section 530.5, the
9magistrate may issue a warrant to search a person or property
10located in another county if the person whose identifying
11information was taken or used resides in the same county as the
12issuing court.

13(k) This section shall not be construed to create a cause of action
14against any foreign or California corporation, its officers,
15employees, agents, or other specified persons for providing location
16information.

17begin insert

begin insertSEC. 2.end insert  

end insert
begin insert

Section 1.5 of this bill incorporates amendments to
18Section 1524 of the Penal Code proposed by both this bill and
19Assembly Bill 1104. It shall only become operative if (1) both bills
20are enacted and become effective on or before January 1, 2016,
21(2) each bill amends Section 1524 of the Penal Code, and (3) this
22bill is enacted after Assembly Bill 1104, in which case Section 1
23of this bill shall not become operative.

end insert


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