Amended in Senate June 23, 2015

Amended in Assembly April 23, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1104


Introduced by Assembly Member Rodriguez

(Principal coauthor: Assembly Member Irwin)

February 27, 2015


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

LEGISLATIVE COUNSEL’S DIGEST

AB 1104, as amended, Rodriguez. 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 the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony, or when there is a warrant to arrest a person.

Existing law authorizes the seizure of a controlled substance and any device, contrivance, instrument, or paraphanelia used for unlawfully using or administering a controlled substance.

This bill would authorize the issuance of a search warrant when the property or things to be seized are controlled substances or any device, contrivance, instrument, or paraphanelia used for unlawfully using or administering a controlled substance.

begin insert

This bill would incorporate changes to Section 1524 of the Penal Code proposed by both this bill and AB 539, 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 Codebegin delete, as amended by
2Section 1 of Chapter 872 of the Statutes of 2014,end delete
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 an item
15or constitute 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
27constituting a misdemeanor, or that property or things are in the
28possession of any person with the intent to use them as a means
29of committing a misdemeanor public offense, or in the possession
30of another to whom he or she may have delivered them for the
31purpose of concealing them or preventing their discovery.

P3    1(8) When the property or things to be seized include an item or
2evidence that tends to show a violation of Section 3700.5 of the
3Labor Code, or tends to show that a particular person has violated
4Section 3700.5 of the Labor Code.

5(9) When the property or things to be seized include a firearm
6or other deadly weapon at the scene of, or at the premises occupied
7or under the control of the person arrested in connection with, a
8domestic violence incident involving a threat to human life or a
9 physical assault as provided in Section 18250. This section does
10not affect warrantless seizures otherwise authorized by Section
1118250.

12(10) When the property or things to be seized include a firearm
13or other deadly weapon that is owned by, or in the possession of,
14or in the custody or control of, a person described in subdivision
15(a) of Section 8102 of the Welfare and Institutions Code.

16(11) When the property or things to be seized include a firearm
17that is owned by, or in the possession of, or in the custody or
18control of, a person who is subject to the prohibitions regarding
19firearms pursuant to Section 6389 of the Family Code, if a
20prohibited firearm is possessed, owned, in the custody of, or
21controlled by a person against whom a protective order has been
22issued pursuant to Section 6218 of the Family Code, the person
23has been lawfully served with that order, and the person has failed
24to relinquish the firearm as required by law.

25(12) When the information to be received from the use of a
26tracking device constitutes evidence that tends to show that either
27a felony, a misdemeanor violation of the Fish and Game Code, or
28a misdemeanor violation of the Public Resources Code has been
29committed or is being committed, tends to show that a particular
30person has committed a felony, a misdemeanor violation of the
31Fish and Game Code, or a misdemeanor violation of the Public
32Resources Code, or is committing a felony, a misdemeanor
33violation of the Fish and Game Code, or a misdemeanor violation
34of the Public Resources Code, or will assist in locating an
35individual who has committed or is committing a felony, a
36misdemeanor violation of the Fish and Game Code, or a
37misdemeanor violation of the Public Resources Code. A tracking
38device search warrant issued pursuant to this paragraph shall be
39executed in a manner meeting the requirements specified in
40subdivision (b) of Section 1534.

P4    1(13) When a sample of the blood of a person constitutes
2evidence that tends to show a violation of Section 23140, 23152,
3or 23153 of the Vehicle Code and the person from whom the
4sample is being sought has refused an officer’s request to submit
5to, or has failed to complete, a blood test as required by Section
623612 of the Vehicle Code, and the sample will be drawn from
7the person in a reasonable, medically approved manner. This
8paragraph is not intended to abrogate a court’s mandate to
9determine the propriety of the issuance of a search warrant on a
10case-by-case basis.

11(14) Beginning January 1, 2016, the property or things to be
12seized are firearms or ammunition or both that are owned by, in
13the possession of, or in the custody or control of a person who is
14the subject of a gun violence restraining order that has been issued
15pursuant to Division 3.2 (commencing with Section 18100) of
16Title 2 of Part 6, if a prohibited firearm or ammunition or both is
17possessed, owned, in the custody of, or controlled by a person
18against whom a gun violence restraining order has been issued,
19 the person has been lawfully served with that order, and the person
20has failed to relinquish the firearm as required by law.

21(15) When the property or things to be seized are controlled
22substances orbegin delete anyend deletebegin insert aend insert device, contrivance, instrument, or paraphanelia
23used for unlawfully using or administering a controlled substance
24pursuant to the authority described in Section 11472 of the Health
25and Safety Code.

26(b) The property, things, person, or persons described in
27subdivision (a) may be taken on the warrant from any place, or
28from any person in whose possession the property or things may
29be.

30(c) Notwithstanding subdivision (a) or (b), no search warrant
31shall issue for any documentary evidence in the possession or
32under the control of any person who is a lawyer as defined in
33Section 950 of the Evidence Code, a physician as defined in Section
34990 of the Evidence Code, a psychotherapist as defined in Section
351010 of the Evidence Code, or a member of the clergy as defined
36in Section 1030 of the Evidence Code, and who is not reasonably
37suspected of engaging or having engaged in criminal activity
38related to the documentary evidence for which a warrant is
39requested unless the following procedure has been complied with:

P5    1(1) At the time of the issuance of the warrant, the court shall
2appoint a special master in accordance with subdivision (d) to
3accompany the person who will serve the warrant. Upon service
4of the warrant, the special master shall inform the party served of
5the specific items being sought and that the party shall have the
6opportunity to provide the items requested. If the party, in the
7judgment of the special master, fails to provide the items requested,
8the special master shall conduct a search for the items in the areas
9indicated in the search warrant.

10(2) (A) If the party who has been served states that an item or
11items should not be disclosed, they shall be sealed by the special
12master and taken to court for a hearing.

13(B) At the hearing, the party searched shall be entitled to raise
14any issues that may be raised pursuant to Section 1538.5 as well
15as a claim that the item or items are privileged, as provided by
16 law. The hearing shall be held in the superior court. The court shall
17provide sufficient time for the parties to obtain counsel and make
18motions or present evidence. The hearing shall be held within three
19days of the service of the warrant unless the court makes a finding
20that the expedited hearing is impracticable. In that case, the matter
21shall be heard at the earliest possible time.

22(C) If an item or items are taken to court for a hearing, any
23limitations of time prescribed in Chapter 2 (commencing with
24Section 799) of Title 3 of Part 2 shall be tolled from the time of
25the seizure until the final conclusion of the hearing, including any
26associated writ or appellate proceedings.

27(3) The warrant shall, whenever practicable, be served during
28normal business hours. In addition, the warrant shall be served
29upon a party who appears to have possession or control of the
30items sought. If, after reasonable efforts, the party serving the
31warrant is unable to locate the person, the special master shall seal
32and return to the court, for determination by the court, any item
33that appears to be privileged as provided by law.

34(d) (1) As used in this section, a “special master” is an attorney
35who is a member in good standing of the California State Bar and
36who has been selected from a list of qualified attorneys that is
37maintained by the State Bar particularly for the purposes of
38conducting the searches described in this section. These attorneys
39shall serve without compensation. A special master shall be
40considered a public employee, and the governmental entity that
P6    1caused the search warrant to be issued shall be considered the
2employer of the special master and the applicable public entity,
3for purposes of Division 3.6 (commencing with Section 810) of
4Title 1 of the Government Code, relating to claims and actions
5against public entities and public employees. In selecting the
6special master, the court shall make every reasonable effort to
7ensure that the person selected has no relationship with any of the
8parties involved in the pending matter. Information obtained by
9the special master shall be confidential and may not be divulged
10except in direct response to inquiry by the court.

11(2) In any case in which the magistrate determines that, after
12reasonable efforts have been made to obtain a special master, a
13special master is not available and would not be available within
14a reasonable period of time, the magistrate may direct the party
15seeking the order to conduct the search in the manner described
16in this section in lieu of the special master.

17(e) Any search conducted pursuant to this section by a special
18master may be conducted in a manner that permits the party serving
19the warrant or his or her designee to accompany the special master
20as he or she conducts his or her search. However, that party or his
21or her designee may not participate in the search nor shall he or
22she examine any of the items being searched by the special master
23except upon agreement of the party upon whom the warrant has
24been served.

25(f) As used in this section, “documentary evidence” includes,
26but is not limited to, writings, documents, blueprints, drawings,
27photographs, computer printouts, microfilms, X-rays, files,
28diagrams, ledgers, books, tapes, audio and video recordings, films,
29and papers of any type or description.

30(g) No warrant shall issue for any item or items described in
31Section 1070 of the Evidence Code.

32(h) Notwithstanding any other law, no claim of attorney work
33product as described in Chapter 4 (commencing with Section
342018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall
35be sustained where there is probable cause to believe that the
36lawyer is engaging or has engaged in criminal activity related to
37the documentary evidence for which a warrant is requested unless
38it is established at the hearing with respect to the documentary
39evidence seized under the warrant that the services of the lawyer
P7    1were not sought or obtained to enable or aid anyone to commit or
2plan to commit a crime or a fraud.

3(i) Nothing in this section is intended to limit an attorney’s
4ability to request an in-camera hearing pursuant to the holding of
5the Supreme Court of California in People v. Superior Court (Laff)
6(2001) 25 Cal.4th 703.

7(j) In addition to any other circumstance permitting a magistrate
8to issue a warrant for a person or property in another county, when
9the property or things to be seized consist of any item or constitute
10evidence that tends to show a violation of Section 530.5, the
11magistrate may issue a warrant to search a person or property
12located in another county if the person whose identifying
13information was taken or used resides in the same county as the
14issuing court.

15(k) This section shall not be construed to create a cause of action
16against any foreign or California corporation, its officers,
17employees, agents, or other specified persons for providing location
18information.

19begin 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

20

1524.  

(a) A search warrant may be issued upon any of the
21following grounds:

22(1) When the property was stolen or embezzled.

23(2) When the property or things were used as the means of
24committing a felony.

25(3) When the property or things are in the possession of any
26person with the intent to use them as a means of committing a
27public offense, or in the possession of another to whom he or she
28may have delivered them for the purpose of concealing them or
29preventing them from being discovered.

30(4) When the property or things to be seized consist ofbegin delete anyend deletebegin insert anend insert
31 item or constitutebegin delete anyend delete evidence that tends to show a felony has
32been committed, or tends to show that a particular person has
33committed a felony.

34(5) When the property or things to be seized consist of evidence
35that tends to show that sexual exploitation of a child, in violation
36of Section 311.3, or possession of matter depicting sexual conduct
37of a person under 18 years of age, in violation of Section 311.11,
38has occurred or is occurring.

39(6) When there is a warrant to arrest a person.

P8    1(7) When a provider of electronic communication service or
2remote computing service has records or evidence, as specified in
3Section 1524.3, showing that property was stolen or embezzled
4constituting a misdemeanor, or that property or things are in the
5possession of any person with the intent to use them as a means
6of committing a misdemeanor public offense, or in the possession
7of another to whom he or she may have delivered them for the
8purpose of concealing them or preventing their discovery.

9(8) When the property or things to be seized include an item or
10begin delete anyend delete evidence that tends to show a violation of Section 3700.5 of
11the Labor Code, or tends to show that a particular person has
12violated Section 3700.5 of the Labor Code.

13(9) When the property or things to be seized include a firearm
14orbegin delete anyend delete other deadly weapon at the scene of, or at the premises
15occupied or under the control of the person arrested in connection
16with, a domestic violence incident involving a threat to human life
17or a physical assault as provided in Section 18250. This section
18does not affect warrantless seizures otherwise authorized by Section
1918250.

20(10) When the property or things to be seized include a firearm
21orbegin delete anyend delete other deadly weapon that is owned by, or in the possession
22of, or in the custody or control of, a person described in subdivision
23(a) of Section 8102 of the Welfare and Institutions Code.

24(11) When the property or things to be seized include a firearm
25that is owned by, or in the possession of, or in the custody or
26control of, a person who is subject to the prohibitions regarding
27firearms pursuant to Section 6389 of the Family Code, if a
28prohibited firearm is possessed, owned, in the custody of, or
29controlled by a person against whom a protective order has been
30issued pursuant to Section 6218 of the Family Code, the person
31has been lawfully served with that order, and the person has failed
32to relinquish the firearm as required by law.

33(12) When the information to be received from the use of a
34tracking device constitutes evidence that tends to show that either
35a felony, a misdemeanor violation of the Fish and Game Code, or
36a misdemeanor violation of the Public Resources Code has been
37committed or is being committed, tends to show that a particular
38person has committed a felony, a misdemeanor violation of the
39Fish and Game Code, or a misdemeanor violation of the Public
40Resources Code, or is committing a felony, a misdemeanor
P9    1violation of the Fish and Game Code, or a misdemeanor violation
2of the Public Resources Code, or will assist in locating an
3individual who has committed or is committing a felony, a
4misdemeanor violation of the Fish and Game Code, or a
5misdemeanor violation of the Public Resources Code. A tracking
6device search warrant issued pursuant to this paragraph shall be
7executed in a manner meeting the requirements specified in
8subdivision (b) of Section 1534.

9(13) When a sample of the blood of a person constitutes
10evidence that tends to show a violation of Section 23140, 23152,
11or 23153 of the Vehicle Code and the person from whom the
12sample is being sought has refused an officer’s request to submit
13to, or has failed to complete, a blood test as required by Section
1423612 of the Vehicle Code, and the sample will be drawn from
15the person in a reasonable, medically approved manner. This
16paragraph is not intended to abrogate a court’s mandate to
17determine the propriety of the issuance of a search warrant on a
18case-by-case basis.

19(14) Beginning January 1, 2016, the property or things to be
20seized are firearms or ammunition or both that are owned by, in
21the possession of, or in the custody or control of a person who is
22the subject of a gun violence restraining order that has been issued
23pursuant to Division 3.2 (commencing with Section 18100) of
24Title 2 of Part 6, if a prohibited firearm or ammunition or both is
25possessed, owned, in the custody of, or controlled by a person
26against whom a gun violence restraining order has been issued,
27 the person has been lawfully served with that order, and the person
28has failed to relinquish the firearm as required by law.

begin insert

29(15) When the property or things to be seized are controlled
30substances or a device, contrivance, instrument, or paraphanelia
31used for unlawfully using or administering a controlled substance
32pursuant to the authority described in Section 11472 of the Health
33and Safety Code.

end insert
begin insert

34(16) (A) When all of the following apply:

end insert
begin insert

35(i) A sample of the blood of a person constitutes evidence that
36tends to show a violation of subdivision (b), (c), (d), (e), or (f) of
37Section 655 of the Harbors and Navigation Code.

end insert
begin insert

38(ii) The person from whom the sample is being sought has
39refused an officer’s request to submit to, or has failed to complete,
P10   1a blood test as required by Section 655.1 of the Harbors and
2Navigation Code.

end insert
begin insert

3(iii) The sample will be drawn from the person in a reasonable,
4medically approved manner.

end insert
begin insert

5(B) This paragraph is not intended to abrogate a court’s
6mandate to determine the propriety of the issuance of a search
7warrant on a case-by-case basis.

end insert

8(b) The property, things, person, or persons described in
9subdivision (a) may be taken on the warrant from any place, or
10from any person in whose possession the property or things may
11be.

12(c) Notwithstanding subdivision (a) or (b), no search warrant
13shall issue for any documentary evidence in the possession or
14under the control of any person who is a lawyer as defined in
15Section 950 of the Evidence Code, a physician as defined in Section
16990 of the Evidence Code, a psychotherapist as defined in Section
171010 of the Evidence Code, or a member of the clergy as defined
18in Section 1030 of the Evidence Code, and who is not reasonably
19suspected of engaging or having engaged in criminal activity
20related to the documentary evidence for which a warrant is
21requested unless the following procedure has been complied with:

22(1) At the time of the issuance of the warrant, the court shall
23appoint a special master in accordance with subdivision (d) to
24accompany the person who will serve the warrant. Upon service
25of the warrant, the special master shall inform the party served of
26the specific items being sought and that the party shall have the
27opportunity to provide the items requested. If the party, in the
28judgment of the special master, fails to provide the items requested,
29the special master shall conduct a search for the items in the areas
30indicated in the search warrant.

31(2) (A) If the party who has been served states that an item or
32items should not be disclosed, they shall be sealed by the special
33master and taken to court for a hearing.

34(B) At the hearing, the party searched shall be entitled to raise
35any issues that may be raised pursuant to Section 1538.5 as well
36as a claim that the item or items are privileged, as provided by
37law. The hearing shall be held in the superior court. The court shall
38provide sufficient time for the parties to obtain counsel and make
39begin delete anyend delete motions or presentbegin delete anyend delete evidence. The hearing shall be held
40within three days of the service of the warrant unless the court
P11   1makes a finding that the expedited hearing is impracticable. In that
2begin delete caseend deletebegin insert case,end insert the matter shall be heard at the earliest possible time.

3(C) If an item or items are taken to court for a hearing, any
4limitations of time prescribed in Chapter 2 (commencing with
5Section 799) of Title 3 of Part 2 shall be tolled from the time of
6the seizure until the final conclusion of the hearing, including any
7associated writ or appellate proceedings.

8(3) The warrant shall, whenever practicable, be served during
9normal business hours. In addition, the warrant shall be served
10upon a party who appears to have possession or control of the
11items sought. If, after reasonable efforts, the party serving the
12warrant is unable to locate the person, the special master shall seal
13and return to the court, for determination by the court, any item
14that appears to be privileged as provided by law.

15(d) (1) As used in this section, a “special master” is an attorney
16who is a member in good standing of the California State Bar and
17who has been selected from a list of qualified attorneys that is
18maintained by the State Bar particularly for the purposes of
19conducting the searches described in this section. These attorneys
20shall serve without compensation. A special master shall be
21considered a public employee, and the governmental entity that
22caused the search warrant to be issued shall be considered the
23employer of the special master and the applicable public entity,
24for purposes of Division 3.6 (commencing with Section 810) of
25Title 1 of the Government Code, relating to claims and actions
26against public entities and public employees. In selecting the
27special master, the court shall make every reasonable effort to
28ensure that the person selected has no relationship with any of the
29parties involved in the pending matter.begin delete Any informationend delete
30begin insert Informationend insert obtained by the special master shall be confidential
31and may not be divulged except in direct response to inquiry by
32the court.

33(2) In any case in which the magistrate determines that, after
34reasonable efforts have been made to obtain a special master, a
35special master is not available and would not be available within
36a reasonable period of time, the magistrate may direct the party
37seeking the order to conduct the search in the manner described
38in this section in lieu of the special master.

39(e) Any search conducted pursuant to this section by a special
40master may be conducted in a manner that permits the party serving
P12   1the warrant or his or her designee to accompany the special master
2as he or she conducts his or her search. However, that party or his
3or her designee may not participate in the search nor shall he or
4she examine any of the items being searched by the special master
5except upon agreement of the party upon whom the warrant has
6been served.

7(f) As used in this section, “documentary evidence” includes,
8but is not limited to, writings, documents, blueprints, drawings,
9photographs, computer printouts, microfilms, X-rays, files,
10diagrams, ledgers, books, tapes, audio and video recordings, films,
11and papers of any type or description.

12(g) No warrant shall issue for any item or items described in
13Section 1070 of the Evidence Code.

14(h) Notwithstanding any other law, no claim of attorney work
15product as described in Chapter 4 (commencing with Section
162018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall
17be sustained where there is probable cause to believe that the
18lawyer is engaging or has engaged in criminal activity related to
19the documentary evidence for which a warrant is requested unless
20it is established at the hearing with respect to the documentary
21evidence seized under the warrant that the services of the lawyer
22were not sought or obtained to enable or aid anyone to commit or
23plan to commit a crime or a fraud.

24(i) Nothing in this section is intended to limit an attorney’s
25ability to request anbegin delete in cameraend deletebegin insert in-cameraend insert hearing pursuant to the
26holding of the Supreme Court of California in People v. Superior
27Court (Laff) (2001) 25 Cal.4th 703.

28(j) In addition to any other circumstance permitting a magistrate
29to issue a warrant for a person or property in another county, when
30the property or things to be seized consist of any item or constitute
31begin delete anyend delete evidence that tends to show a violation of Section 530.5, the
32magistrate may issue a warrant to search a person or property
33located in another county if the person whose identifying
34information was taken or used resides in the same county as the
35issuing court.

36(k) This section shall not be construed to create a cause of action
37against any foreign or California corporation, its officers,
38employees, agents, or other specified persons for providing location
39information.

P13   1begin insert

begin insertSEC. 2.end insert  

end insert
begin insert

Section 1.5 of this bill incorporates amendments to
2Section 1524 of the Penal Code proposed by both this bill and
3Assembly Bill 539. It shall only become operative if (1) both bills
4are enacted and become effective on or before January 1, 2016,
5(2) each bill amends Section 1524 of the Penal Code, and (3) this
6bill is enacted after Assembly Bill 539, in which case Section 1 of
7this bill shall not become operative.

end insert


O

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