BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2505|
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THIRD READING
Bill No: AB 2505
Author: Audra Strickland (R)
Amended: 4/8/10 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/15/10
AYES: Leno, Cogdill, Cedillo, Hancock, Huff, Steinberg,
Wright
ASSEMBLY FLOOR : 74-0, 4/29/10 (Consent) - See last page
for vote
SUBJECT : Warrants: electronic signature: computer
server
transmission
SOURCE : Ventura County District Attorney
DIGEST : This bill allows a warrant to be signed
electronically when the magistrate receives the request for
the warrant electronically.
ANALYSIS : Existing law sets forth the grounds for the
issuance of a search warrant. (Section 1524 of the Penal
Code [PEN])
Existing law 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/her affidavit or their affidavits in writing, and cause
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the affidavit or affidavits to be subscribed by the party
or parties making them. (PEN Section 1526(a))
Existing law provides that in lieu of the written
affidavit, the magistrate may take an oral statement under
oath under the following conditions:
1. The oath shall be made under penalty of perjury and
recorded and transcribed.
2. The oath is made using telephone and facsimile
transmission equipment, or made using telephone and
electronic mail, as follows:
A. The oath is made during a telephone conversation
with the magistrate, where after the affiant shall
sign his/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.
B. 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. 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. Indicate on the
warrant that the oath of the affiant was
administered orally over the telephone (PEN
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Section 1526(b))
Existing law provides that the completed search warrant, as
signed by the magistrate shall be deemed to be the original
warrant. (PEN Section 1526 (b)(2)(C)(iv))
Existing law 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. (PEN Section
1526(b)(2)(D))
Existing law 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. (PEN Section
1515)
This bill allows the magistrate's signature to be made in
the form of a digital signature or electronic signature if
electronic mail or computer server is used for transmission
to the magistrate.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/16/10)
Ventura County District Attorney (source)
California District Attorneys Association
ARGUMENTS IN SUPPORT : According to the author, "The
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unpredictable nature of crime sometimes requires peace
officers to obtain search warrants after normal business
hours, sometimes in the middle of the night. Under current
statute, affiants - law enforcement officers - are
expressly authorized to transmit a search warrant to a
magistrate for review using fax or electronic mail, aka
e-mail. The affiant's signature on the search warrant
affidavit may be in the form of a digital signature.
However, once the magistrate has decided to issue the
warrant, current law does not authorize the magistrate to
sign the warrant electronically. Instead, the magistrate
must print out the warrant, affidavit, and any attachments,
sign it with a pen, and either fax it back to the officer
or scan and email it to the officer. The current
requirements can make the process of approving, signing,
and returning a warrant to the court a lengthy process that
can be fraught with technical and hardware challenges such
as jammed printers or exhausting an ink cartridge in the
middle of the night. These steps can be time consuming,
and, in some cases, have a negative impact on public
safety. Officers may have to stand guard over premises and
suspects awaiting the approval of a warrant. These steps
also require that magistrates assigned to after-hours
search warrant duty be provided with printers, ink
cartridges, and fax machines or scanners. Contemporary
computer technology provides for a secure and expeditious
alternative for the signing and transmission of warrants by
both the affiant and magistrate. This bill would delete
the requirement that the magistrate cause the warrant,
supporting affidavit, and attachments to be printed if
received by electronic mail or computer server and then
faxed or scanned and emailed back. Instead, the magistrate
could sign the warrant electronically and email it back.
This bill would also allow the use of a computer server
rather than email for transmission of the warrant
documents. Because existing law refers to both 'electronic
signatures' and 'digital signatures,' which are similar
concepts with technical differences between them, this bill
would authorize either. Finally, this bill would delete
the requirement that the magistrate return the printed
documents to the court, and would require only the
'duplicate original' be returned to the court clerk by the
officer. Allowing affiants and magistrates to utilize
e-mail is a secure alternative method of transmission and
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signing of warrants that will give law enforcement the
flexibility and rapidity to more effectively respond to
crime in the modern world."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Bradford, Brownley, Buchanan, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Knight, Lieu, Logue, Ma,
Mendoza, Miller, Monning, Nava, Nestande, Niello,
Nielsen, Norby, V. Manuel Perez, Portantino, Ruskin,
Salas, Saldana, Silva, Skinner, Smyth, Solorio, Audra
Strickland, Swanson, Torlakson, Torres, Tran, Villines,
Yamada, John A. Perez
NO VOTE RECORDED: Bass, Caballero, Jones, Bonnie
Lowenthal, Torrico, Vacancy
RJG:mw 6/16/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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