BILL ANALYSIS
AB 2505
Page 1
Date of Hearing: April 20, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2505 (Strickland) - As Amended: April 8, 2010
SUMMARY : Updates technical terms regarding the issuance of
warrants over a computer server. Specifically, this bill :
1)Allows an oath to be made via computer server.
2)Provides that the affiant's signature may be in the form of an
electronic signature.
3)Deletes the requirement that the magistrate cause the warrant,
supporting affidavit, and attachments to be printed if
received by electronic mail or computer server.
4)Allows the magistrate to sign the warrant using a digital
signature or electronic signature if electronic mail or
computer server is used.
EXISTING LAW :
1)States that the magistrate, before issuing the warrant, may
examine on oath the person seeking the warrant and any
witnesses the person may produce, and shall take his or her
affidavit or their affidavits in writing, and cause the
affidavit or affidavits to be subscribed by the party or
parties making them. [Penal Code Section 1526(a).]
2)Provides that in lieu of the written affidavit, the magistrate
may take an oral statement under oath under one of the
following conditions:
a) The oath shall be made under penalty of perjury and
recorded and transcribed. The transcribed statement shall
be deemed to be an affidavit for the purposes of this
chapter. In these cases, the recording of the sworn oral
statement and the transcribed statement shall be certified
by the magistrate receiving it and shall be filed with the
AB 2505
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clerk of the court. In the alternative in these cases, the
sworn oral statement shall be recorded by a certified court
reporter and the transcript of the statement shall be
certified by the reporter, after which the magistrate
receiving it shall certify the transcript which shall be
filed with the clerk of the court.
b) The oath is made using telephone and facsimile
transmission equipment, or made using telephone and
electronic mail, as follows:
i) The oath is made during a telephone conversation
with the magistrate, whereafter the affiant shall sign
his or her affidavit in support of the application for
the search warrant. The affiant's signature shall be in
the form of a digital signature if electronic mail is
used for transmission to the magistrate. The proposed
search warrant and all supporting affidavits and
attachments shall then be transmitted to the magistrate
utilizing facsimile transmission equipment or, electronic
mail.
ii) The magistrate shall confirm with the affiant the
receipt of the search warrant and the supporting
affidavits and attachments. The magistrate shall verify
that all the pages sent have been received, that all
pages are legible, and that the affiant's signature or,
digital signature is acknowledged as genuine.
iii) If the magistrate decides to issue the search
warrant, he or she shall:
(1) Cause the warrant, supporting affidavit, and
attachments to be printed if received by electronic
mail.
(2) Sign the warrant.
(3) Note on the warrant the exact date and time of
the issuance of the warrant.
(4) Indicate on the warrant that the oath of the
affiant was administered orally over the telephone.
The completed search warrant, as signed by the
magistrate, shall be deemed to be the original
AB 2505
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warrant. [Penal Code Section 1526(b).]
3)Requires the magistrate to transmit via facsimile transmission
equipment, or via electronic mail, the signed search warrant
to the affiant who shall telephonically acknowledge its
receipt. The Magistrate shall then telephonically authorize
the affiant to write the words "duplicate original" on the
copy of the completed search warrant transmitted to the
affiant and this document shall be deemed to be a duplicate
original search warrant. The original warrant and any
affidavits or attachments in support thereof, and any
duplicate original warrant, shall be returned as provided
under existing law. [Penal Code Section 1526(b)(D).]
4)Disallows a search warrant from being issued unless there is
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. The application shall specify when applicable, that
the place to be searched is in the possession or under the
control of an attorney, physician, psychotherapist, or
clergyman. (Penal Code Section 1515.)
FISCAL EFFECT : Unknown
COMMENTS : Related prior legislation is SB 1970 (Schiff),
Chapter 692, Statutes of 1998, authorizes the magistrate to take
a written declaration in support of a warrant of probable cause
for an arrest via electronic mail under specified conditions,
and to take the oral statement of the person seeking the warrant
or any witness that he or she produces by using the telephone
and e-mail.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
Opposition
None
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
AB 2505
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319-3744