AB 2440, as introduced, Gatto. 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.
This bill would make technical, nonsubstantive changes to those provisions.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1524 of the Penal Code is amended to
(a) A search warrant may be issued upon any of the
5(1) When the property was stolen or embezzled.
6(2) When the property or things were used as the means of
7committing a felony.
P2 1(3) When the property or things are in the possession of
begin delete anyend delete
2 person with the intent to use them as a means of committing a
3public offense, or in the possession of another to whom he or she
4may have delivered them for the purpose of concealing them or
5 preventing them from being discovered.
6(4) When the property or things to be seized consist of an item
7or constitute evidence that tends to show a felony has been
8committed, or tends to show that a particular person has committed
10(5) When the property or things to be seized consist of evidence
11that tends to show that sexual exploitation of a child, in violation
12of Section 311.3, or possession of matter depicting sexual conduct
13of a person under 18 years of age, in violation of Section 311.11,
14has occurred or is occurring.
15(6) When there is a warrant to arrest a person.
16(7) When a provider of electronic communication service or
17remote computing service has records or evidence, as specified in
18Section 1524.3, showing that property was stolen or embezzled
19constituting a misdemeanor, or that property or things are in the
begin delete anyend delete person with the intent to use them as a means
21of committing a misdemeanor public offense, or in the possession
22of another to whom he or she may have delivered them for the
23purpose of concealing them or preventing their discovery.
24(8) When the property or things to be seized include an item or
25evidence that tends to show a violation of Section 3700.5 of the
26Labor Code, or tends to show that a particular person has violated
27Section 3700.5 of the Labor Code.
28(9) When the property or things to be seized include a firearm
29or other deadly weapon at the scene of, or at the premises occupied
30or under the control of the person arrested in connection with, a
31domestic violence incident involving a threat to human life or a
32physical assault as provided in Section 18250. This section does
33not affect warrantless seizures otherwise authorized by Section
35(10) When the property or things to be seized include a firearm
36or other deadly weapon that is owned by, or in the possession of,
37or in the custody or control of, a person described in subdivision
38(a) of Section 8102 of the Welfare and Institutions Code.
39(11) When the property or things to be seized include a firearm
40that is owned by, or in the possession of, or in the custody or
P3 1control of, a person who is subject to the prohibitions regarding
2firearms pursuant to Section 6389 of the Family Code, if a
3prohibited firearm is possessed, owned, in the custody of, or
4controlled by a person against whom a protective order has been
5 issued pursuant to Section 6218 of the Family Code, the person
6has been lawfully served with that order, and the person has failed
7to relinquish the firearm as required by law.
8(12) When the information to be received from the use of a
9tracking device constitutes evidence that tends to show that either
10a felony, a misdemeanor violation of the Fish and Game Code, or
11a misdemeanor violation of the Public Resources Code has been
12committed or is being committed, tends to show that a particular
13person has committed a felony, a misdemeanor violation of the
14Fish and Game Code, or a misdemeanor violation of the Public
15Resources Code, or is committing a felony, a misdemeanor
16violation of the Fish and Game Code, or a misdemeanor violation
17of the Public Resources Code, or will assist in locating an
18individual who has committed or is committing a felony, a
19misdemeanor violation of the Fish and Game Code, or a
20misdemeanor violation of the Public Resources Code. A tracking
21device search warrant issued pursuant to this paragraph shall be
22executed in a manner meeting the requirements specified in
23subdivision (b) of Section 1534.
24(13) When a sample of the blood of a person constitutes
25evidence that tends to show a violation of Section 23140, 23152,
26or 23153 of the Vehicle Code and the person from whom the
27sample is being sought has refused an officer’s request to submit
28to, or has failed to complete, a blood test as required by Section
2923612 of the Vehicle Code, and the sample will be drawn from
30the person in a reasonable, medically approved manner. This
31paragraph is not intended to abrogate a court’s mandate to
32determine the propriety of the issuance of a search warrant on a
34(14) Beginning January 1, 2016, the property or things to be
35seized are firearms or ammunition or both that are owned by, in
36the possession of, or in the custody or control of a person who is
37the subject of a gun violence restraining order that has been issued
38pursuant to Division 3.2 (commencing with Section 18100) of
39Title 2 of Part 6, if a prohibited firearm or ammunition or both is
40possessed, owned, in the custody of, or controlled by a person
P4 1against whom a gun violence restraining order has been issued,
2the person has been lawfully served with that order, and the person
3has failed to relinquish the firearm as required by law.
4(15) When the property or things to be seized are controlled
5substances or a device, contrivance, instrument, or paraphernalia
6used for unlawfully using or administering a controlled substance
7pursuant to the authority described in Section 11472 of the Health
8and Safety Code.
9(16) (A) When all of the following apply:
10(i) A sample of the blood of a person constitutes evidence that
11tends to show a violation of subdivision (b), (c), (d), (e), or (f) of
12Section 655 of the Harbors and Navigation Code.
13(ii) The person from whom the sample is being sought has
14refused an officer’s request to submit to, or has failed to complete,
15a blood test as required by Section 655.1 of the Harbors and
17(iii) The sample will be drawn from the person in a reasonable,
18medically approved manner.
19(B) This paragraph is not intended to abrogate a court’s mandate
20to determine the propriety of the issuance of a search warrant on
21a case-by-case basis.
22(b) The property, things, person, or persons described in
23subdivision (a) may be taken on the warrant from any place, or
24from any person in whose possession the property or things may
26(c) Notwithstanding subdivision (a) or (b), no search warrant
27shall issue for any documentary evidence in the possession or
28under the control of
begin delete anyend delete person who is a lawyer as defined in
29Section 950 of the Evidence Code, a physician as defined in Section
30990 of the Evidence Code, a psychotherapist as defined in Section
311010 of the Evidence Code, or a member of the clergy as defined
32in Section 1030 of the Evidence Code, and who is not reasonably
33suspected of engaging or having engaged in criminal activity
34related to the documentary evidence for which a warrant is
35requested unless the following procedure has been complied with:
36(1) At the time of the issuance of the warrant, the court shall
37appoint a special master in accordance with subdivision (d) to
38accompany the person who will serve the warrant. Upon service
39of the warrant, the special master shall inform the party served of
40the specific items being sought and that the party shall have the
P5 1opportunity to provide the items requested. If the party, in the
2judgment of the special master, fails to provide the items requested,
3the special master shall conduct a search for the items in the areas
4indicated in the search warrant.
5(2) (A) If the party who has been served states that an item or
6items should not be disclosed, they shall be sealed by the special
7master and taken to court for a hearing.
8(B) At the hearing, the party searched shall be entitled to raise
9any issues that may be raised pursuant to Section 1538.5 as well
10as a claim that the item or items are privileged, as provided by
11law. The hearing shall be held in the superior court. The court shall
12provide sufficient time for the parties to obtain counsel and make
13motions or present evidence. The hearing shall be held within three
14days of the service of the warrant unless the court makes a finding
15that the expedited hearing is impracticable. In that case, the matter
16shall be heard at the earliest possible time.
17(C) If an item or items are taken to court for a hearing, any
18limitations of time prescribed in Chapter 2 (commencing with
19Section 799) of Title 3 of Part 2 shall be tolled from the time of
20the seizure until the final conclusion of the hearing, including any
21associated writ or appellate proceedings.
22(3) The warrant shall, whenever practicable, be served during
23normal business hours. In addition, the warrant shall be served
24upon a party who appears to have possession or control of the
25items sought. If, after reasonable efforts, the party serving the
26warrant is unable to locate the person, the special master shall seal
27and return to the court, for determination by the court, any item
28that appears to be privileged as provided by law.
29(d) (1) As used in this section, a “special master” is an attorney
30who is a member in good standing of the California State Bar and
31who has been selected from a list of qualified attorneys that is
32maintained by the State Bar particularly for the purposes of
33conducting the searches described in this section. These attorneys
34shall serve without compensation. A special master shall be
35considered a public employee, and the governmental entity that
36caused the search warrant to be issued shall be considered the
37employer of the special master and the applicable public entity,
38for purposes of Division 3.6 (commencing with Section 810) of
39Title 1 of the Government Code, relating to claims and actions
40against public entities and public employees. In selecting the
P6 1special master, the court shall make every reasonable effort to
2ensure that the person selected has no relationship with any of the
3parties involved in the pending matter. Information obtained by
4the special master shall be confidential and may not be divulged
5except in direct response to inquiry by the court.
6(2) In any case in which the magistrate determines that, after
7reasonable efforts have been made to obtain a special master, a
8special master is not available and would not be available within
9a reasonable period of time, the magistrate may direct the party
10seeking the order to conduct the search in the manner described
11in this section in lieu of the special master.
12(e) Any search conducted pursuant to this section by a special
13master may be conducted in a manner that permits the party serving
14the warrant or his or her designee to accompany the special master
15as he or she conducts his or her search. However, that party or his
16or her designee may not participate in the search nor shall he or
17she examine any of the items being searched by the special master
18except upon agreement of the party upon whom the warrant has
20(f) As used in this section, “documentary evidence” includes,
21but is not limited to, writings, documents, blueprints, drawings,
22photographs, computer printouts, microfilms, X-rays, files,
23diagrams, ledgers, books, tapes, audio and video recordings, films,
24and papers of any type or description.
25(g) No warrant shall issue for any item or items described in
26Section 1070 of the Evidence Code.
27(h) Notwithstanding any other law, no
claim of attorney work
28product as described in Chapter 4 (commencing with Section
292018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall
30be sustained where there is probable cause to believe that the
31lawyer is engaging or has engaged in criminal activity related to
32the documentary evidence for which a warrant is requested unless
33it is established at the hearing with respect to the documentary
34evidence seized under the warrant that the services of the lawyer
35were not sought or obtained to enable or aid anyone to commit or
36plan to commit a crime or a fraud.
37(i) Nothing in this section is intended to limit an attorney’s
38ability to request an in-camera hearing pursuant to the holding of
39the Supreme Court of California in People v. Superior Court (Laff)
40(2001) 25 Cal.4th 703.
P7 1(j) In addition to any other circumstance permitting a magistrate
2to issue a warrant for a person or property in another county, when
3the property or things to be seized consist of any item or constitute
4evidence that tends to show a violation of Section 530.5, the
5magistrate may issue a warrant to search a person or property
6located in another county if the person whose identifying
7information was taken or used resides in the same county as the
9(k) This section shall not be construed to create a cause of action
10against any foreign or California corporation, its officers,
11employees, agents, or other specified persons for providing location