as amended, Gatto.
begin deleteSearch warrants. end delete
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.end delete
This bill would make technical, nonsubstantive changes to those provisions.end delete
begin deleteno end delete.
State-mandated local program: begin deleteno end delete.
The people of the State of California do enact as follows:
(a) (1) Except as otherwise provided in this section,
4for the purpose of implementing the DNA Fingerprint, Unsolved
5Crime and Innocence Protection Act (Proposition 69), as approved
6by the voters at the November 2, 2004, statewide general election,
7there shall be levied an additional penalty of one dollar ($1) for
8every ten dollars ($10), or part of ten dollars ($10), in each county
9upon every fine, penalty, or forfeiture imposed and collected by
begin delete courtsend delete for all criminal offenses, including all offenses
2involving a violation of the Vehicle Code or a local ordinance
3adopted pursuant to the Vehicle Code.
4(2) The penalty imposed by this section shall be collected
5together with and in the same manner as the amounts established
6by Section 1464 of the Penal Code. The moneys shall be taken
7from fines and forfeitures deposited with the county treasurer prior
8to any division pursuant to Section 1463 of the Penal Code. The
9board of supervisors shall establish in the county treasury a DNA
10Identification Fund into which shall be deposited the moneys
11collected pursuant to this section.
begin delete Theend delete moneys of the fund shall be allocated
13pursuant to subdivision (b).
14(3) The additional penalty does not apply to the following:
15(A) A restitution fine.
16(B) A penalty authorized by Section 1464 of the Penal Code or
18(C) A parking offense subject to Article 3 (commencing with
19Section 40200) of Chapter 1 of Division 17 of the Vehicle Code.
20(D) The state surcharge authorized by Section 1465.7 of the
22(b) (1) The fund moneys described in subdivision (a), together
23with any interest earned thereon, shall be held by the county
24treasurer separate from any funds subject to transfer or division
25pursuant to Section 1463 of the Penal Code. Deposits to the fund
26may continue through and including the 20th year after the initial
27calendar year in which the surcharge is collected, or longer if and
28as necessary to make payments upon any lease or leaseback
29arrangement utilized to finance any of the projects specified herein.
begin deleteOn end deletethe
31last day of each calendar quarter of the year specified in this
32subdivision, the county treasurer shall transfer fund moneys in the
33county’s DNA Identification Fund to the Controller for credit to
34the state’s DNA Identification Fund, which is hereby established
35in the State Treasury, as follows:
36(A) In the first two calendar years following the effective date
37of this section, 70 percent of the amounts collected, including
38interest earned thereon.
P4 1(B) In the third calendar year following the effective date of
2this section, 50 percent of the amounts collected, including interest
4(C) In the fourth calendar year following the effective date of
5this section and in each calendar year thereafter, 25 percent of the
6amounts collected, including interest earned thereon.
begin deleteFunds end deleteremaining in the county’s DNA Identification Fund shall be
9used only for the following purposes:
10(A) To reimburse local sheriff or other law enforcement agencies
11for the collection of DNA specimens, samples, and print
12 impressions pursuant to this chapter.
13(B) For expenditures and administrative costs made or incurred
14to comply with the requirements of paragraph (5) of subdivision
15(b) of Section 298 of the Penal Code, including the procurement
16of equipment and software integral to confirming that a person
17qualifies for entry into the Department of Justice DNA and Forensic
18Identification Database and Data Bank Program.
19(C) To reimburse local sheriff, police, district attorney, and
20regional state crime laboratories for expenditures and
21administrative costs made or incurred in connection with the
22processing, analysis, tracking, and storage of DNA crime scene
23samples from cases in which DNA evidence would be useful in
24identifying or prosecuting suspects, including the procurement of
25equipment and software for the processing, analysis, tracking, and
26storage of DNA crime scene samples from unsolved cases.
27(D) (i) If authorized by a resolution of the board of supervisors,
28and after the distributions provided in subparagraphs (A), (B), and
29(C), a local sheriff or police department, or the district attorney’s
30office, may use remaining funds, either independently or in
31combination with remaining funds from another county, to provide
32supplemental funding to a qualified local or regional state forensic
33laboratory for expenditures and administrative costs made or
34incurred in connection with the processing, analysis, and
35comparison of DNA crime scene samples and forensic
36identification samples, and testimony related to that analysis. This
37subparagraph shall apply only to those counties that do not have
38a local public law enforcement laboratory, and does not authorize
39any transfer that will interfere with the operation of subparagraph
40(A). Any supplemental funding provided pursuant to this
P5 1subparagraph shall not be used to supplant funds already allocated
2to a qualified local or regional state forensic laboratory by the
3state’s DNA Identification Fund.
4(ii) For purposes of this subparagraph, a qualified local or
5regional state forensic laboratory is a Department of Justice
6regional forensic laboratory or a local law enforcement agency
7forensic laboratory that meets state and federal requirements for
8contributing DNA profiles for inclusion in California’s DNA
9databank, including the FBI Quality Assurance Standards and
10accreditation requirements, and shall be accredited by an
11organization approved by the National DNA Index System (NDIS)
13(4) The state’s DNA Identification Fund shall be administered
14by the Department of Justice. Funds in the state’s DNA
15Identification Fund, upon appropriation by the Legislature, shall
16be used by the Attorney General only to support DNA testing in
17the state and to offset the impacts of increased testing and shall be
18allocated as follows:
19(A) Of the amount transferred pursuant to subparagraph (A) of
20paragraph (2) of subdivision (b), 90 percent to the Department of
21Justice DNA Laboratory, first, to comply with the requirements
22of Section 298.3 of the Penal Code and, second, for expenditures
23and administrative costs made or incurred in connection with the
24processing, analysis, tracking, and storage of DNA specimens and
25samples including the procurement of equipment and software for
26the processing, analysis, tracking, and storage of DNA samples
27and specimens obtained pursuant to the DNA and Forensic
28Identification Database and Data Bank Act of 1998, as amended
29by Chapter 6 (commencing with Section 295) of Title 9 of Part 1
30of the Penal Code, and 10 percent to the Department of Justice
31Information Bureau Criminal History Unit for expenditures and
32administrative costs that have been approved by the Chief of the
33Department of Justice Bureau of Forensic Services made or
34incurred to update equipment and software to facilitate compliance
35with the requirements of subdivision (e) of Section 299.5 of the
37(B) Of the amount transferred pursuant to subparagraph (B) of
38paragraph (2) of subdivision (b), funds shall be allocated by the
39Department of Justice DNA Laboratory, first, to comply with the
40requirements of Section 298.3 of the Penal Code and, second, for
P6 1expenditures and administrative costs made or incurred in
2connection with the processing, analysis, tracking, and storage of
3DNA specimens and samples including the procurement of
4equipment and software for the processing, analysis, tracking, and
5storage of DNA samples and specimens obtained pursuant to the
6DNA and Forensic Identification Database and Data Bank Act of
71998, as amended.
8(C) Of the amount
transferred pursuant to subparagraph (C) of
9paragraph (2) of subdivision (b), funds shall be allocated by the
10Department of Justice to the DNA Laboratory to comply with the
11requirements of Section 298.3 of the Penal Code and for
12expenditures and administrative costs made or incurred in
13connection with the processing, analysis, tracking, and storage of
14DNA specimens and samples including the procurement of
15equipment and software for the processing, analysis, tracking, and
16storage of DNA samples and specimens obtained pursuant to the
17DNA and Forensic Identification Database and Data Bank Act of
181998, as amended.
19(c) On or before April 1 in the year following adoption of this
20section, and annually thereafter, the board of supervisors of each
21county shall submit a report to the Legislature and the Department
22of Justice. The report shall include the total amount of fines
23collected and allocated pursuant to this section, and the amounts
24expended by the county for each program authorized pursuant to
25paragraph (3) of subdivision (b). The Department of Justice shall
26make the reports publicly available on the department’s Internet
28(d) All requirements imposed on the Department of Justice
29pursuant to the DNA Fingerprint, Unsolved Crime and Innocence
30Protection Act are contingent upon the availability of funding and
31are limited by revenue, on a fiscal year basis, received by the
32Department of Justice pursuant to this section and any additional
33appropriation approved by the Legislature for purposes related to
34implementing this act.
35(e) Upon approval of the DNA Fingerprint, Unsolved Crime
36and Innocence Protection Act, the Legislature shall lend the
37Department of Justice General Fund in the amount of seven million
38dollars ($7,000,000) for purposes of implementing the act. The
39loan shall be repaid with interest calculated at the rate earned by
40the Pooled Money Investment Account at the time the loan is made.
P7 1Principal and interest on the loan shall be repaid in full no later
2than four years from the date the loan was made and shall be repaid
3from revenue generated pursuant to this section.
4(f) Notwithstanding any other law, the Controller may use the
5state’s DNA Identification Fund, created pursuant to paragraph
6(2) of subdivision (b), for loans to the General Fund as provided
7in Sections 16310 and 16381. Any such loan shall be repaid from
8the General Fund with interest computed at 110 percent of the
9Pooled Money Investment Account rate, with the interest
10commencing to accrue on the date the loan is made from the fund.
11This subdivision does not authorize any transfer that will interfere
12with the carrying out of the object for which the state’s DNA
13Identification Fund was created.
Section 1524 of the Penal Code is amended to
(a) A search warrant may be issued upon any of the
3(1) When the property was stolen or embezzled.
4(2) When the property or things were used as the means of
5committing a felony.
6(3) When the property or things are in the possession of a person
7with the intent to use them as a means of committing a public
8offense, or in the possession of another to whom he or she may
9have delivered them for the purpose of concealing them or
10 preventing them from being discovered.
11(4) When the property or things to be seized consist of an item
12or constitute evidence that tends to show a felony has been
13committed, or tends to show that a particular person has committed
15(5) When the property or things to be seized consist of evidence
16that tends to show that sexual exploitation of a child, in violation
17of Section 311.3, or possession of matter depicting sexual conduct
18of a person under 18 years of age, in violation of Section 311.11,
19has occurred or is occurring.
20(6) When there is a warrant to arrest a person.
21(7) When a provider of electronic communication service or
22remote computing service has records or evidence, as specified in
23Section 1524.3, showing that property was stolen or embezzled
24constituting a misdemeanor, or that property or things are in the
25possession of a person with the intent to use them as a means of
26committing a misdemeanor public offense, or in the possession of
27another to whom he or she may have delivered them for the purpose
28of concealing them or preventing their discovery.
29(8) When the property or things to be seized include an item or
30evidence that tends to show a violation of Section 3700.5 of the
31Labor Code, or tends to show that a particular person has violated
32Section 3700.5 of the Labor Code.
33(9) When the property or things to be seized include a firearm
34or other deadly weapon at the scene of, or at the premises occupied
35or under the control of the person arrested in connection with, a
36domestic violence incident involving a threat to human life or a
37physical assault as provided in Section 18250. This section does
38not affect warrantless seizures otherwise authorized by Section
P10 1(10) When the property or things to be seized include a firearm
2or other deadly weapon that is owned by, or in the possession of,
3or in the custody or control of, a person described in subdivision
4(a) of Section 8102 of the Welfare and Institutions Code.
5(11) When the property or things to be seized include a firearm
6that is owned by, or in the possession of, or in the custody or
7control of, a person who is subject to the prohibitions regarding
8firearms pursuant to Section 6389 of the Family Code, if a
9prohibited firearm is possessed, owned, in the custody of, or
10controlled by a person against whom a protective order has been
11 issued pursuant to Section 6218 of the Family Code, the person
12has been lawfully served with that order, and the person has failed
13to relinquish the firearm as required by law.
14(12) When the information to be received from the use of a
15tracking device constitutes evidence that tends to show that either
16a felony, a misdemeanor violation of the Fish and Game Code, or
17a misdemeanor violation of the Public Resources Code has been
18committed or is being committed, tends to show that a particular
19person has committed a felony, a misdemeanor violation of the
20Fish and Game Code, or a misdemeanor violation of the Public
21Resources Code, or is committing a felony, a misdemeanor
22violation of the Fish and Game Code, or a misdemeanor violation
23of the Public Resources Code, or will assist in locating an
24individual who has committed or is committing a felony, a
25misdemeanor violation of the Fish and Game Code, or a
26misdemeanor violation of the Public Resources Code. A tracking
27device search warrant issued pursuant to this paragraph shall be
28executed in a manner meeting the requirements specified in
29subdivision (b) of Section 1534.
30(13) When a sample of the blood of a person constitutes
31evidence that tends to show a violation of Section 23140, 23152,
32or 23153 of the Vehicle Code and the person from whom the
33sample is being sought has refused an officer’s request to submit
34to, or has failed to complete, a blood test as required by Section
3523612 of the Vehicle Code, and the sample will be drawn from
36the person in a reasonable, medically approved manner. This
37paragraph is not intended to abrogate a court’s mandate to
38determine the propriety of the issuance of a search warrant on a
P11 1(14) Beginning January 1, 2016, the property or things to be
2seized are firearms or ammunition or both that are owned by, in
3the possession of, or in the custody or control of a person who is
4the subject of a gun violence restraining order that has been issued
5pursuant to Division 3.2 (commencing with Section 18100) of
6Title 2 of Part 6, if a prohibited firearm or ammunition or both is
7possessed, owned, in the custody of, or controlled by a person
8against whom a gun violence restraining order has been issued,
9the person has been lawfully served with that order, and the person
10has failed to relinquish the firearm as required by law.
11(15) When the property or things to be seized are controlled
12substances or a device, contrivance, instrument, or paraphernalia
13used for unlawfully using or administering a controlled substance
14pursuant to the authority described in Section 11472 of the Health
15and Safety Code.
16(16) (A) When all of the following apply:
17(i) A sample of the blood of a person constitutes evidence that
18tends to show a violation of subdivision (b), (c), (d), (e), or (f) of
19Section 655 of the Harbors and Navigation Code.
20(ii) The person from whom the sample is being sought has
21refused an officer’s request to submit to, or has failed to complete,
22a blood test as required by Section 655.1 of the Harbors and
24(iii) The sample will be drawn from the person in a
25medically approved manner.
26(B) This paragraph is not intended to abrogate a court’s mandate
27to determine the propriety of the issuance of a search warrant on
28a case-by-case basis.
29(b) The property, things, person, or persons described in
30subdivision (a) may be taken on the warrant from any place, or
31from any person in whose possession the property or things may
33(c) Notwithstanding subdivision (a) or (b), no search warrant
34shall issue for any documentary evidence in the possession or
35under the control of a person who is a lawyer as defined in Section
36950 of the Evidence Code, a physician as defined in Section 990
37of the Evidence Code, a psychotherapist as defined in Section 1010
38of the Evidence Code, or a member of the clergy as defined in
39Section 1030 of the Evidence Code, and who is not reasonably
40suspected of engaging or having engaged in criminal activity
P12 1related to the documentary evidence for which a warrant is
2requested unless the following procedure has been complied with:
3(1) At the time of the issuance of the warrant, the court shall
4appoint a special master in accordance with subdivision (d) to
5accompany the person who will serve the warrant. Upon service
6of the warrant, the special master shall inform the party served of
7the specific items being sought and that the party shall have the
8opportunity to provide the items requested. If the party, in the
9judgment of the special master, fails to provide the items requested,
10the special master shall conduct a search for the items in the areas
11indicated in the search warrant.
12(2) (A) If the party who has been served states that an item or
13items should not be disclosed, they shall be sealed by the special
14master and taken to court for a hearing.
15(B) At the hearing, the party searched shall be entitled to raise
16any issues that may be raised pursuant to Section 1538.5 as well
17as a claim that the item or items are privileged, as provided by
18law. The hearing shall be held in the superior court. The court shall
19provide sufficient time for the parties to obtain counsel and make
20motions or present evidence. The hearing shall be held within three
21days of the service of the warrant unless the court makes a finding
22that the expedited hearing is impracticable. In that case, the matter
23shall be heard at the earliest possible time.
24(C) If an item or items are taken to court for a hearing, any
25limitations of time prescribed in Chapter 2 (commencing with
26Section 799) of Title 3 of Part 2 shall be tolled from the time of
27the seizure until the final conclusion of the hearing, including any
28associated writ or appellate proceedings.
29(3) The warrant shall, whenever practicable, be served during
30normal business hours. In addition, the warrant shall be served
31upon a party who appears to have possession or control of the
32items sought. If, after reasonable efforts, the party serving the
33warrant is unable to locate the person, the special master shall seal
34and return to the court, for determination by the court, any item
35that appears to be privileged as provided by law.
36(d) (1) As used in this section, a “special master” is an attorney
37who is a member in good standing of the California State Bar and
38who has been selected from a list of qualified attorneys that is
39maintained by the State Bar particularly for the purposes of
40conducting the searches described in this section. These attorneys
P13 1shall serve without compensation. A special master shall be
2considered a public employee, and the governmental entity that
3caused the search warrant to be issued shall be considered the
4employer of the special master and the applicable public entity,
5for purposes of Division 3.6 (commencing with Section 810) of
6Title 1 of the Government Code, relating to claims and actions
7 against public entities and public employees. In selecting the
8special master, the court shall make every reasonable effort to
9ensure that the person selected has no relationship with any of the
10parties involved in the pending matter. Information obtained by
11the special master shall be confidential and may not be divulged
12except in direct response to inquiry by the court.
13(2) In any case in which the magistrate determines that, after
14reasonable efforts have been made to obtain a special master, a
15special master is not available and would not be available within
16a reasonable period of time, the magistrate may direct the party
17seeking the order to conduct the search in the manner described
18in this section in lieu of the special master.
19(e) Any search conducted pursuant to this section by a special
20master may be conducted in a manner that permits the party serving
21the warrant or his or her designee to accompany the special master
22as he or she conducts his or her search. However, that party or his
23or her designee may not participate in the search nor shall he or
24she examine any of the items being searched by the special master
25except upon agreement of the party upon whom the warrant has
27(f) As used in this section, “documentary evidence” includes,
28but is not limited to, writings, documents, blueprints, drawings,
29photographs, computer printouts, microfilms, X-rays, files,
30diagrams, ledgers, books, tapes, audio and video recordings, films,
31and papers of any type or description.
32(g) No warrant shall issue for any item or items described in
33Section 1070 of the Evidence Code.
34(h) Notwithstanding any other law, no claim of attorney work
35product as described in Chapter 4 (commencing with Section
362018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall
37be sustained where there is probable cause to believe that the
38lawyer is engaging or has engaged in criminal activity related to
39the documentary evidence for which a warrant is requested unless
40it is established at the hearing with respect to the documentary
P14 1evidence seized under the warrant that the services of the lawyer
2were not sought or obtained to enable or aid anyone to commit or
3plan to commit a crime or a fraud.
4(i) Nothing in this section is intended to limit an attorney’s
5ability to request an in-camera hearing pursuant to the holding of
6the Supreme Court of California in People v. Superior Court (Laff)
7(2001) 25 Cal.4th 703.
8(j) In addition to any other
circumstance permitting a magistrate
9to issue a warrant for a person or property in another county, when
10the property or things to be seized consist of any item or constitute
11evidence that tends to show a violation of Section 530.5, the
12magistrate may issue a warrant to search a person or property
13located in another county if the person whose identifying
14information was taken or used resides in the same county as the
16(k) This section shall not be construed to create a cause of action
17against any foreign or California corporation, its officers,
18employees, agents, or other specified persons for providing location