(1)Existing law governs the procedure for issuing a warrant of arrest and requires that a declaration in support of a warrant of probable cause for arrest be a sworn statement made in writing. Existing law authorizes a magistrate to take an oral statement under oath in lieu of the written declaration if the oath is taken under penalty of perjury and recorded and transcribed, or, in the alternative, made during a telephone conversation with the magistrate. If the oath was made during a telephone conversation, existing law requires the magistrate to carry out specified duties in connection with issuing the warrant of arrest, as specified. Existing law deems the warrant signed by the magistrate to be the original warrant and the copy of the document transmitted to the declarant to be a duplicate.

This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation in lieu of a declaration in support of a warrant of probable cause for arrest and would eliminate specified related procedural duties of the magistrate. The bill would deem the warrant that is signed by the magistrate and received by the declarant to be the original warrant. The bill would make technical and conforming changes.

(2)Existing law requires a search warrant to be issued upon probable cause, supported by a written affidavit, and governs the process for issuing a search warrant. Existing law authorizes a magistrate to take an oral statement under oath in lieu of a written affidavit if the oral statement is made under penalty of perjury or, in the alternative, made during a telephone conversation with the magistrate. Existing law requires the magistrate to carry out specified duties in issuing a search warrant.

This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation and would eliminate related procedural duties of the magistrate, as specified. The bill would make related and conforming changes.

(1)Existing law governs the procedure for issuing a warrant of arrest and requires that a declaration in support of a warrant of probable cause for arrest be a sworn statement made in writing. Existing law authorizes a magistrate to take an oral statement under oath in lieu of the written declaration if the oath is taken under penalty of perjury and recorded and transcribed, or, in the alternative, made during a telephone conversation with the magistrate. If the oath was made during a telephone conversation, existing law requires the magistrate to carry out specified duties in connection with issuing the warrant of arrest, as specified. Existing law deems the warrant signed by the magistrate to be the original warrant and the copy of the document transmitted to the declarant to be a duplicate.

This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation in lieu of a declaration in support of a warrant of probable cause for arrest and would eliminate specified related procedural duties of the magistrate. The bill would deem the warrant that is signed by the magistrate and received by the declarant to be the original warrant. The bill would make technical and conforming changes.

(2)Existing law requires a search warrant to be issued upon probable cause, supported by a written affidavit, and governs the process for issuing a search warrant. Existing law authorizes a magistrate to take an oral statement under oath in lieu of a written affidavit if the oral statement is made under penalty of perjury or, in the alternative, made during a telephone conversation with the magistrate. Existing law requires the magistrate to carry out specified duties in issuing a search warrant.

This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation and would eliminate related procedural duties of the magistrate, as specified. The bill would make related and conforming changes.

(1)Existing law governs the procedure for issuing a warrant of arrest and requires that a declaration in support of a warrant of probable cause for arrest be a sworn statement made in writing. Existing law authorizes a magistrate to take an oral statement under oath in lieu of the written declaration if the oath is taken under penalty of perjury and recorded and transcribed, or, in the alternative, made during a telephone conversation with the magistrate. If the oath was made during a telephone conversation, existing law requires the magistrate to carry out specified duties in connection with issuing the warrant of arrest, as specified. Existing law deems the warrant signed by the magistrate to be the original warrant and the copy of the document transmitted to the declarant to be a duplicate.

This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation in lieu of a declaration in support of a warrant of probable cause for arrest and would eliminate specified related procedural duties of the magistrate. The bill would deem the warrant that is signed by the magistrate and received by the declarant to be the original warrant. The bill would make technical and conforming changes.

(2)Existing law requires a search warrant to be issued upon probable cause, supported by a written affidavit, and governs the process for issuing a search warrant. Existing law authorizes a magistrate to take an oral statement under oath in lieu of a written affidavit if the oral statement is made under penalty of perjury or, in the alternative, made during a telephone conversation with the magistrate. Existing law requires the magistrate to carry out specified duties in issuing a search warrant.

This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation and would eliminate related procedural duties of the magistrate, as specified. The bill would make related and conforming changes.

(1)Existing law governs the procedure for issuing a warrant of arrest and requires that a declaration in support of a warrant of probable cause for arrest be a sworn statement made in writing. Existing law authorizes a magistrate to take an oral statement under oath in lieu of the written declaration if the oath is taken under penalty of perjury and recorded and transcribed, or, in the alternative, made during a telephone conversation with the magistrate. If the oath was made during a telephone conversation, existing law requires the magistrate to carry out specified duties in connection with issuing the warrant of arrest, as specified. Existing law deems the warrant signed by the magistrate to be the original warrant and the copy of the document transmitted to the declarant to be a duplicate.

This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation in lieu of a declaration in support of a warrant of probable cause for arrest and would eliminate specified related procedural duties of the magistrate. The bill would deem the warrant that is signed by the magistrate and received by the declarant to be the original warrant. The bill would make technical and conforming changes.

(2)Existing law requires a search warrant to be issued upon probable cause, supported by a written affidavit, and governs the process for issuing a search warrant. Existing law authorizes a magistrate to take an oral statement under oath in lieu of a written affidavit if the oral statement is made under penalty of perjury or, in the alternative, made during a telephone conversation with the magistrate. Existing law requires the magistrate to carry out specified duties in issuing a search warrant.

This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation and would eliminate related procedural duties of the magistrate, as specified. The bill would make related and conforming changes.

(1)Existing law governs the procedure for issuing a warrant of arrest and requires that a declaration in support of a warrant of probable cause for arrest be a sworn statement made in writing. Existing law authorizes a magistrate to take an oral statement under oath in lieu of the written declaration if the oath is taken under penalty of perjury and recorded and transcribed, or, in the alternative, made during a telephone conversation with the magistrate. If the oath was made during a telephone conversation, existing law requires the magistrate to carry out specified duties in connection with issuing the warrant of arrest, as specified. Existing law deems the warrant signed by the magistrate to be the original warrant and the copy of the document transmitted to the declarant to be a duplicate.

This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation in lieu of a declaration in support of a warrant of probable cause for arrest and would eliminate specified, related procedural duties of the magistrate. The bill would deem the warrant that is signed by the magistrate and received by the declarant to be the original warrant. The bill would make technical and conforming changes.

(2)Existing law requires a search warrant to be issued upon probable cause, supported by a written affidavit, and governs the process for issuing a search warrant. Existing law authorizes a magistrate to take an oral statement under oath in lieu of a written affidavit if the oral statement is made under penalty of perjury or, in the alternative, made during a telephone conversation with the magistrate. Existing law requires the magistrate to carry out specified duties in issuing a search warrant.

This bill would delete the authority of a magistrate to take an oral statement under oath made during a telephone conversation and would eliminate related procedural duties of the magistrate, as specified. The bill would make related and conforming changes.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2710

Author:(Obernolte)

As Amended Ver:June 13, 2018

Majority vote

Original Committee Reference: PUB. S.

SUMMARY: Eliminates the requirement that a judge take the oath over the telephone when an officer makes an application for a search warrant or arrest warrant by fax, email, or computer server. Requires an officer to sign a declaration in support of search or arrest warrant under penalty of perjury. Conforms the procedures to obtain search and arrest warrants by fax, email, or computer server.

The Senate amendments require that the judge verify that all the pages sent by an officer have been received, that all the pages of the application are legible, and that the declarant's or affiant's signature, digital signature, or electronic signature is genuine.

EXISTING LAW:

1. States a declaration of probable cause for arrest is made by a peace officer, as specified, the judge, if, and only if, satisfied from the declaration that there exists probable cause that the offense described in the declaration has been committed and that the defendant described therein has committed the offense, shall issue a warrant of probable cause for the arrest of the defendant.
2. Specifies that the declaration in support of the warrant of probable cause for arrest shall be a sworn statement made in writing.
3. Provides that as an alternative to the written declaration, the judge may take an oral statement under oath under one of the following conditions:
   1. The oath shall be taken under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be the declaration for the purposes of this section. 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 clerk of the court. In the alternative, the sworn oral statement may be recorded by a certified court reporter who shall certify the transcript of the statement, after which the magistrate receiving it shall certify the transcript, which shall be filed with the clerk of the court; or
   2. The oath is made using telephone and facsimile transmission equipment, or made using telephone and electronic mail, or telephone and computer server, under all of the following conditions:
      1. The oath is made during a telephone conversation with the magistrate, after which the declarant shall sign his or her declaration in support of the warrant of probable cause for arrest. The proposed warrant and all supporting declarations and attachments shall then be transmitted to the magistrate utilizing facsimile transmission equipment, electronic mail, or computer server;
      2. The magistrate shall confirm with the declarant the receipt of the warrant and the supporting declarations and attachments. The magistrate shall verify that all the pages sent have been received, that all pages are legible, and that the declarant's signature, digital signature, or electronic signature is acknowledged as genuine; and
      3. If the magistrate decides to issue the warrant, he or she shall:
         1. Cause the warrant, supporting declarations, and attachments to be subsequently printed if those documents are received by electronic mail or computer server;
         2. Sign the warrant. The magistrate's signature may be in the form of a digital signature or electronic signature if electronic mail or computer server is used for transmission to the magistrate;
         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 declarant was administered orally over the telephone; and
         5. The completed warrant, as signed by the magistrate, shall be deemed to be the original warrant.
      4. The magistrate shall transmit via facsimile transmission equipment, electronic mail, or computer server, the signed warrant to the declarant who shall telephonically acknowledge its receipt. The magistrate shall then telephonically authorize the declarant to write the words "duplicate original" on the copy of the completed warrant transmitted to the declarant and this document shall be deemed to be a duplicate original warrant.
4. States that before issuing a warrant, the magistrate may examine under oath the person seeking the warrant and any witness the person may produce, take the written declaration of the person or witness, and cause the person or witness to subscribe the declaration.
5. Specifies that before issuing a search warrant, the judge may question under oath the person seeking the warrant and any witnesses the person may produce, and shall take his or her affidavit in writing.
6. Allows the judge to take an oral statement in support of a search warrant, under oath, under one of the following conditions:
   1. The oath shall be made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for a search warrant. 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 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;
   2. The oath is made using telephone and facsimile transmission equipment, telephone and email, or telephone and computer server, as follows:
      1. The oath is made during a telephone conversation with the magistrate, after the affiant has signed his or her affidavit in support of the application for the search warrant and transmitted the proposed search warrant and all supporting affidavits and documents to the magistrate. The affiant's signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission to the magistrate;
      2. 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, digital signature, or electronic signature is acknowledged as genuine; and
      3. If the magistrate decides to issue the search warrant, he or she shall:
         1. Sign the warrant. The magistrate's signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission by the magistrate;
         2. Note on the warrant the exact date and time of the issuance of the warrant; and
         3. Indicate on the warrant that the oath of the affiant was administered orally over the telephone.
7. Requires the judge to transmit via facsimile transmission equipment, email, or computer server, the signed search warrant to the affiant. The completed search warrant, as signed by the magistrate and received by the affiant, shall be deemed to be the original warrant.

AS PASSED BY THE ASSEMBLY, this bill:

1. Eliminated the requirement that a judge take the oath over the telephone when an officer makes an application for an arrest warrant by fax, email, or computer server.
2. Eliminated the requirement that the judge confirm by telephone that the officer has received the signed arrest warrant by fax, email, or computer server.
3. Eliminated the requirement that a judge take the oath over the telephone when an officer makes an application for a search warrant by fax, email, or computer server.
4. Required an officer to sign under penalty of perjury his or her declaration in support of probable cause for issuance of a search or arrest warrant, when the application for the warrant is made by fax, email or computer server.
5. Allowed a judge's signature on an arrest warrant to be in the form of a digital signature or electronic signature if email or computer server was used for transmission to the magistrate.
6. Specified an arrest warrant, signed by the judge, and received by the declarant, shall be deemed to be the original warrant when warrant is faxed, emailed, or sent by computer server.
7. Permitted the affiant's signature to be in the form of a digital signature or electronic signature if email or computer server is used for transmission to the magistrate of a search warrant application.
8. Deleted the requirement that the judge confirm with the declarant the receipt of the warrant and the supporting declarations and attachments, when the application is made by fax, email, or computer server.
9. Deleted the requirement that the judge verify that all the pages sent have been received, that all pages are legible, and that the declarant's signature, digital signature, or electronic signature is acknowledged as genuine, when the application for an arrest or search warrant is made by fax, email, or computer server.
10. Conformed the procedures to obtain search and arrest warrants by fax, email, or computer server

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: According to the author, "While [Penal Code] Section 817 requires multiple telephonic conversations between the magistrate and the officer, [Penal Code] Section 1526 requires only one. Section 817 deems the completed warrant signed by the magistrate as the original warrant and the copy of the completed warrant is designated as a duplicate original. Section 1526 instead deems the completed search warrant, as signed by the magistrate and received by the affiant, as the original warrant. Moreover, the telephonic conversations between officers and magistrates for arrest and search warrants can be considerable, especially for courts that experience a greater volume of applications.

''According to the Superior Court of San Bernardino County, the requirement of a phone conversation significantly lengthens the amount of time required to review the warrant because '[f]requently, the arresting officer fails to answer at the phone number provided, and it requires multiple attempts for the judge to make telephonic contact with the officer.' The court further viewed this requirement as unnecessary because (1) the magistrate's questioning of the officer would be irrelevant in litigating a facial challenge to the warrant; (2) an officer willing to lie in writing would not likely be deterred by a telephone conversation; and (3) the officer's accountability is already ensured by the sworn affidavit or probable cause declaration. Lastly, the court reasoned that warrant requests submitted after hours are necessarily emergencies and that the requirement of a telephonic conversation often delays or results in the rejection of the warrant.

''AB 2710 addresses these concerns by amending Sections 817 and 1526 to align them and make procedures more efficient by: (1) providing that the warrant signed by the magistrate and received by the officer be deemed the original warrant; (2) no longer requiring the magistrate to print the warrant; and (3) eliminating the oral oath requirement, with the magistrate exercising discretion to call the officer when appropriate. "

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0003634

 THIRD READING  

Bill No: AB 2710

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/26/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

ASSEMBLY FLOOR: 74-0, 4/23/18 - See last page for vote

SUBJECT:

SOURCE: Judicial Council of California

DIGEST:

This bill eliminates the requirement that a judge take an oath over the telephone when an officer makes an application for a search warrant or arrest warrant by fax, email, or computer server and instead requires an officer to sign a declaration in support of a search or arrest warrant under penalty of perjury.

ANALYSIS:

Existing law:

1. States a declaration of probable cause for arrest is made by a peace officer, as specified, the judge, if, and only if, satisfied from the declaration that there exists probable cause that the offense described in the declaration has been committed and that the defendant described therein has committed the offense, shall issue a warrant of probable cause for the arrest of the defendant. (Pen. Code § 817, subd. (a)(1).)
2. Specifies that the declaration in support of the warrant of probable cause for arrest shall be a sworn statement made in writing. (Pen. Code § 817, subd. (b).)
3. Provides that as an alternative to the written declaration, the judge may take an oral statement, under oath, under one of the following conditions:
   1. The oath shall be taken under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be the declaration for the purposes of this section. 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 clerk of the court. In the alternative, the sworn oral statement may be recorded by a certified court reporter who shall certify the transcript of the statement, after which the magistrate receiving it shall certify the transcript, which shall be filed with the clerk of the court; or,
   2. The oath is made using telephone and facsimile transmission equipment, or made using telephone and electronic mail, or telephone and computer server, under all of the following conditions:
      1. The oath is made during a telephone conversation with the magistrate, after which the declarant shall sign his or her declaration in support of the warrant of probable cause for arrest. The proposed warrant and all supporting declarations and attachments shall then be transmitted to the magistrate utilizing facsimile transmission equipment, electronic mail, or computer server;
      2. The magistrate shall confirm with the declarant the receipt of the warrant and the supporting declarations and attachments. The magistrate shall verify that all the pages sent have been received, that all pages are legible, and that the declarant’s signature, digital signature, or electronic signature is acknowledged as genuine; and,
      3. If the magistrate decides to issue the warrant, he or she shall:
         1. Cause the warrant, supporting declarations, and attachments to be subsequently printed if those documents are received by electronic mail or computer server;
         2. Sign the warrant. The magistrate’s signature may be in the form of a digital signature or electronic signature if electronic mail or computer server is used for transmission to the magistrate;
         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 declarant was administered orally over the telephone; and,
         5. The completed warrant, as signed by the magistrate, shall be deemed to be the original warrant.
      4. The magistrate shall transmit via facsimile transmission equipment, electronic mail, or computer server, the signed warrant to the declarant who shall telephonically acknowledge its receipt. The magistrate shall then telephonically authorize the declarant to write the words “duplicate original” on the copy of the completed warrant transmitted to the declarant and this document shall be deemed to be a duplicate original warrant. (Pen. Code § 817, subd. (c)(1)-(2).)
4. States that before issuing a warrant, the magistrate may examine under oath the person seeking the warrant and any witness the person may produce, take the written declaration of the person or witness, and cause the person or witness to subscribe the declaration. (Pen. Code § 817, subd. (d).)
5. Specifies that before issuing a search warrant, the judge may question under oath the person seeking the warrant and any witnesses the person may produce, and shall take his or her affidavit in writing. (Pen. Code § 1526, subd. (a).)
6. Allows the judge to take an oral statement in support of a search warrant, under oath, under one of the following conditions:
   1. The oath shall be made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for a search warrant. 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 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;
   2. The oath is made using telephone and facsimile transmission equipment, telephone and email, or telephone and computer server, as follows:
      1. The oath is made during a telephone conversation with the magistrate, after the affiant has signed his or her affidavit in support of the application for the search warrant and transmitted the proposed search warrant and all supporting affidavits and documents to the magistrate. The affiant’s signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission to the magistrate;
      2. 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, digital signature, or electronic signature is acknowledged as genuine; and,
      3. If the magistrate decides to issue the search warrant, he or she shall:
         1. Sign the warrant. The magistrate’s signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission by the magistrate;
         2. Note on the warrant the exact date and time of the issuance of the warrant; and,
         3. Indicate on the warrant that the oath of the affiant was administered orally over the telephone. (Pen. Code § 1526, subd. (a).)
7. Requires the judge to transmit via facsimile transmission equipment, email, or computer server, the signed search warrant to the affiant. The completed search warrant, as signed by the magistrate and received by the affiant, shall be deemed to be the original warrant. (Pen. Code, § 1526, subd. (b)(2)(D).)

This bill:

1. Eliminates the requirement that a judge take the oath over the telephone when an officer makes an application for an arrest warrant or a search warrant by fax, email, or computer server.
2. Requires if the declarant transmits the proposed arrest warrant or search warrant and all affidavits and supporting documents to the magistrate using fax, email, or computer server:
   1. The declarant to sign under penalty of perjury his or her declaration in support of the warrant of probable cause for arrest or issuance of a search warrant; and,
   2. The magistrate to verify that all of the pages sent have been received, that all the pages are legible, and that the declarant’s signature, digital signature, or electronic signature is genuine.
3. States that the warrant, signed by the magistrate and received by the declarant, shall be deemed the original warrant.
4. Makes other conforming changes.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/27/18)

Judicial Council of California (source)

California District Attorneys Association

California Judges Association

Los Angeles County District Attorney’s Office

OPPOSITION: (Verified 6/27/18)

None received

ASSEMBLY FLOOR: 74-0, 4/23/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Cooper, Cristina Garcia, Eduardo Garcia, Quirk

Prepared by: Stella Choe / PUB. S. /

6/27/18 15:01:34

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 2710 Hearing Date: June 26, 2018

Subject: Warrants

HISTORY

Source: Judicial Council

Prior Legislation: AB 39 (Medina), Ch. 193, Stats. 2015

AB 1004 (Gray), Ch. 460, Stats. 2013

Support: California District Attorneys Association; California Judges Association

Opposition: None known

Assembly Floor Vote: 74 - 0

PURPOSE

The purpose of this bill is to eliminate the requirement that a judge take the oath over the telephone when an officer makes an application for a search warrant or arrest warrant by fax, email, or computer server and to instead require an officer to sign a declaration in support of search or arrest warrant under penalty of perjury.

Existing law states a declaration of probable cause for arrest is made by a peace officer, as specified, the judge, if, and only if, satisfied from the declaration that there exists probable cause that the offense described in the declaration has been committed and that the defendant described therein has committed the offense, shall issue a warrant of probable cause for the arrest of the defendant. (Pen. Code, § 817, subd. (a)(1).)

Existing law specifies that the declaration in support of the warrant of probable cause for arrest shall be a sworn statement made in writing. (Pen. Code, § 817, subd. (b).)

Existing law provides that as an alternative to the written declaration, the judge may take an oral statement under oath under one of the following conditions:

1. The oath shall be taken under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be the declaration for the purposes of this section. 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 clerk of the court. In the alternative, the sworn oral statement may be recorded by a certified court reporter who shall certify the transcript of the statement, after which the magistrate receiving it shall certify the transcript, which shall be filed with the clerk of the court; or,
2. The oath is made using telephone and facsimile transmission equipment, or made using telephone and electronic mail, or telephone and computer server, under all of the following conditions:
   1. The oath is made during a telephone conversation with the magistrate, after which the declarant shall sign his or her declaration in support of the warrant of probable cause for arrest. The proposed warrant and all supporting declarations and attachments shall then be transmitted to the magistrate utilizing facsimile transmission equipment, electronic mail, or computer server;
   2. The magistrate shall confirm with the declarant the receipt of the warrant and the supporting declarations and attachments. The magistrate shall verify that all the pages sent have been received, that all pages are legible, and that the declarant’s signature, digital signature, or electronic signature is acknowledged as genuine; and,
   3. If the magistrate decides to issue the warrant, he or she shall:
      1. Cause the warrant, supporting declarations, and attachments to be subsequently printed if those documents are received by electronic mail or computer server;
      2. Sign the warrant. The magistrate’s signature may be in the form of a digital signature or electronic signature if electronic mail or computer server is used for transmission to the magistrate;
      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 declarant was administered orally over the telephone; and,
      5. The completed warrant, as signed by the magistrate, shall be deemed to be the original warrant.
   4. The magistrate shall transmit via facsimile transmission equipment, electronic mail, or computer server, the signed warrant to the declarant who shall telephonically acknowledge its receipt. The magistrate shall then telephonically authorize the declarant to write the words “duplicate original” on the copy of the completed warrant transmitted to the declarant and this document shall be deemed to be a duplicate original warrant. (Pen. Code, § 817, subd. (c)(1)-(2).)

Existing law states that before issuing a warrant, the magistrate may examine under oath the person seeking the warrant and any witness the person may produce, take the written declaration of the person or witness, and cause the person or witness to subscribe the declaration. (Pen. Code, § 817, subd. (d).)

Existing law specifies that before issuing a search warrant, the judge may question under oath the person seeking the warrant and any witnesses the person may produce, and shall take his or her affidavit in writing. (Pen. Code, § 1526, subd. (a).)

Existing law allows the judge to take an oral statement in support of a search warrant, under oath, under one of the following conditions:

1. The oath shall be made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for a search warrant. 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 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;
2. The oath is made using telephone and facsimile transmission equipment, telephone and email, or telephone and computer server, as follows:
   1. The oath is made during a telephone conversation with the magistrate, after the affiant has signed his or her affidavit in support of the application for the search warrant and transmitted the proposed search warrant and all supporting affidavits and documents to the magistrate. The affiant’s signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission to the magistrate;
   2. 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, digital signature, or electronic signature is acknowledged as genuine; and,
   3. If the magistrate decides to issue the search warrant, he or she shall:
      1. Sign the warrant. The magistrate’s signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission by the magistrate;
      2. Note on the warrant the exact date and time of the issuance of the warrant; and,
      3. Indicate on the warrant that the oath of the affiant was administered orally over the telephone. (Pen. Code, § 1526, subd. (a).)

Existing law requires the judge to transmit via facsimile transmission equipment, email, or computer server, the signed search warrant to the affiant. The completed search warrant, as signed by the magistrate and received by the affiant, shall be deemed to be the original warrant. (Pen. Code, § 1526, subd. (b)(2)(D).)

This bill eliminates the requirement that a judge take the oath over the telephone when an officer makes an application for an arrest warrant or a search warrant by fax, email, or computer server.

This bill deletes the requirement that the judge confirm with the declarant the receipt of the warrant and the supporting declarations and attachments, when the application is made by fax, email, or computer server.

This bill requires if the declarant transmits the proposed arrest warrant or search warrant and all affidavits and supporting documents to the magistrate using facsimile transmission equipment, email, or computer server, the declarant to sign under penalty of perjury his or her declaration in support of the warrant of probable cause for arrest or for issuance of a search warrant and the magistrate to verify that all the pages sent have been received, that all the pages are legible, and that the declarant’s signature, digital signature, or electronic signature is genuine.

This bill states that the warrant, signed by the magistrate and received by the declarant, shall be deemed the original warrant.

This bill makes other conforming changes.

COMMENTS

1. Need for this Bill

According to the author of this bill:

This proposal would amend sections 817 and 1526 to allow magistrates to issue arrest and search warrants electronically without a telephonic conversation between the officer and the magistrate by eliminating the requirement of an oral oath. This amendment is intended to promote procedural efficiencies by streamlining and modernizing the warrant process.

The officer’s electronic signature under penalty of perjury on the affidavit or probable cause declaration has the same legal effect as the oral oath. The primary difference is that the formality of an oral oath before a judge adds some solemnity to the occasion that might cause an officer to be more careful when preparing the affidavit or probable cause declaration. The committee reasoned that the benefits did not outweigh the costs of retaining the oral oath requirement.

Although the telephonic conversation provides an opportunity for the magistrate to question the officer to clarify any ambiguity in the affidavit or declaration, the conversation is not recorded and would not be admissible in support of the warrant. At best, it might prompt the officer to revise and resubmit the affidavit or probable cause declaration. Yet, this proposal would not preclude this result; a magistrate would be free to contact the officer with any questions or concerns.

The costs associated with telephonic conversations between officers and magistrates for arrest and search warrants can be considerable, especially for courts in larger counties that experience a greater volume of applications. It is not uncommon for magistrates to wait—often late in the night or early morning—for the officer to return their call because the officer has been called away on another assignment or is otherwise unavailable. The affidavits and probable cause declarations for the offenses more commonly committed at this hour, such as driving under the influence, are frequently submitted on a standardized form containing check boxes, with the result that fewer ambiguities and questions arise.

Eliminating the requirement of an oral oath would also align electronic and paper processes. The statutes currently do not require an oral statement under oath if the officer submits written affidavits and probable cause declarations in paper form. (Pen. Code, §§ 817(b), 1526(a).) They do allow, but not require, the magistrate to examine the person seeking the warrant under oath. (Id., §§ 817(d), 1526(a).) With advances in technology and the public’s growing comfort with using technology to conduct business, the [Judicial Council Advisory] committee viewed it as no longer necessary to add procedural hurdles to serve as a check on the electronic process.

1. Applications for Arrest and Search Warrants

With the increasing use of technologies such as email and the ability to electronically transmit data, courts are increasing relying on such mediums to manage their documents. The Legislature has passed a number of bills to provide the courts more latitude to handle applications for arrest and search warrants by electronic means.

SB 1970 (Schiff) Chapter 692 in 1998 authorized an application for a search warrant to be made by electronic mail including that the affiant's signature in support of the affidavit for the warrant can be made by digital signature. This was updated in 2010 with AB 2505 (A. Strickland) to allow a magistrate to return a search warrant by electronic signature.

AB 1004 (Gray), Chapter 460, Statutes of 2013, specified that the declaration in support of probable cause for an arrest warrant may be by telephone and computer server and that the signature may be an electronic signature.

AB 39 (Medina), Chapter 193, Statutes of 2015, required an affiant to first sign his or her affidavit and send the proposed search warrant and all supporting affidavits and attachments to the magistrate, after which the affiant would make his or her oath during a telephone conversation with the magistrate.

Existing law allows applications for search and arrest warrants to be made by an officer in person, or made by an officer remotely by means of, telephone and fax, telephone and electronic mail, or telephone and computer server. If the officer is using a remote application for an arrest warrant, the judge is required to administer the oath to the officer during a telephone conversation after which the officer signs the declaration in support of the warrant of probable cause for arrest. The proposed arrest warrant and all supporting declarations and attachments are then be transmitted to the judge using a fax machine, electronic mail, or computer server. The judge is required to confirm with the officer the receipt of the warrant and the supporting declarations and attachments. The judge must verify that all the pages sent have been received, that all pages are legible, and that the declarant’s signature, digital signature, or electronic signature is acknowledged as genuine. Once the judge sends the signed arrest warrant to the officer by fax, email, or computer server, the officer must acknowledge receipt of the arrest warrant over the telephone.

The process for obtaining a search warrant by fax, email, or computer server is similar, but has some differences. When applying for a search warrant remotely, the oath is made during a telephone conversation with the magistrate, after the officer has signed his or her affidavit in support of the application for the search warrant and transmitted the proposed search warrant and all supporting affidavits and documents to the judge. After the judge sends the signed search warrant to the officer, there is no requirement that the officer acknowledge receipt of the warrant over the telephone.

This bill conforms the procedure required to seek arrest and search warrants by fax, email, or computer server by requiring the declarant to sign under penalty of perjury his or her affidavit in support of probable cause to support the warrant. This bill also makes the warrant signed by the magistrate and received by the declarant the original warrant. This bill also eliminates the current the requirement that a judge take the oath over the telephone when an officer makes an application for a search warrant or arrest warrant remotely, but provides that the judge may examine under oath the person seeking the warrant and any witness the person may produce before issuing the warrant.

1. Argument in Support

According to Judicial Council of California, the sponsor of this bill:

Under current law, although the procedures set forth in sections 817 and 1526 are similar, there are several differences resulting from recent amendments to section 1526 (AB 39. ch. 193, Stats. 2015). Whereas, section 817 currently requires multiple telephonic conversations between the magistrate and the officer, section 1526 requires only one. In addition, section 817 provides the complete warrant, as signed by the magistrate, is deemed the original warrant and requires that the magistrate authorize the officer to write “duplicate original” on the copy of the completed warrant. ($ 817(c)(2)(C)-(D).) Section 1526 instead provides that “[t]he completed search warrant, as signed by the magistrate and received by the affiant, shall be deemed to be the original warrant.” (§ 1526(b)(2)(D).) AB 2710 aligns section 817 with section 1526 by deeming the warrant signed by the magistrate and received by the officer as the original warrant an no longer requiring the magistrate to print the warrant.

In addition, AB 2710 amends sections 817 and 1526 to allow magistrates to issue arrest and search warrants electronically without a telephonic conversation between the officer and the magistrate by eliminating the requirement of an oral oath, while retaining the written oath requirement under existing law. AB 2710 provides the magistrate with discretion to question telephonically the officer about any concerns and to clarify any ambiguity in the affidavit or declaration. The council believes this bill make the warrant procedure more efficient because the magistrate will no longer have to wait hours for the officer to return their phone call.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 2710

Author:(Obernolte)

As Introduced Ver:April 16, 2018

Majority vote

SUMMARY: Eliminates the requirement that a judge take the oath over the telephone when an officer makes an application for a search warrant or arrest warrant by fax, email, or computer server. Requires an officer to sign a declaration in support of search or arrest warrant under penalty of perjury. Conforms the procedures to obtain search and arrest warrants by fax, email, or computer server. Specifically, this bill:

1. Eliminates the requirement that a judge take the oath over the telephone when an officer makes an application for an arrest warrant by fax, email, or computer server.
2. Eliminates the requirement that the judge confirm by telephone that the officer has received the signed arrest warrant by fax, email, or computer server.
3. Eliminates the requirement that a judge take the oath over the telephone when an officer makes an application for a search warrant by fax, email, or computer server.
4. Requires an officer to sign under penalty of perjury his or her declaration in support of probable cause for issuance of a search or arrest warrant, when the application for the warrant is made by fax, email or computer server.
5. Allows a judge's signature on an arrest warrant to be in the form of a digital signature or electronic signature if email or computer server was used for transmission to the magistrate.
6. Specifies an arrest warrant, signed by the judge, and received by the declarant, shall be deemed to be the original warrant when warrant is faxed, emailed, or sent by computer server.
7. Permits the affiant's signature to be in the form of a digital signature or electronic signature if email or computer server is used for transmission to the magistrate of a search warrant application.
8. Deletes the requirement that the judge confirm with the declarant the receipt of the warrant and the supporting declarations and attachments, when the application is made by fax, email, or computer server.
9. Deletes the requirement that the judge verify that all the pages sent have been received, that all pages are legible, and that the declarant's signature, digital signature, or electronic signature is acknowledged as genuine, when the application for an arrest or search warrant is made by fax, email, or computer server.
10. Conforms the procedures to obtain search and arrest warrants by fax, email, or computer server

EXISTING LAW:

1. States a declaration of probable cause for arrest is made by a peace officer, as specified, the judge, if, and only if, satisfied from the declaration that there exists probable cause that the offense described in the declaration has been committed and that the defendant described therein has committed the offense, shall issue a warrant of probable cause for the arrest of the defendant.
2. Specifies that the declaration in support of the warrant of probable cause for arrest shall be a sworn statement made in writing.
3. Provides that as an alternative to the written declaration, the judge may take an oral statement under oath under one of the following conditions:
   1. The oath shall be taken under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be the declaration for the purposes of this section. 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 clerk of the court. In the alternative, the sworn oral statement may be recorded by a certified court reporter who shall certify the transcript of the statement, after which the magistrate receiving it shall certify the transcript, which shall be filed with the clerk of the court; or
   2. The oath is made using telephone and facsimile transmission equipment, or made using telephone and electronic mail, or telephone and computer server, under all of the following conditions:
      1. The oath is made during a telephone conversation with the magistrate, after which the declarant shall sign his or her declaration in support of the warrant of probable cause for arrest. The proposed warrant and all supporting declarations and attachments shall then be transmitted to the magistrate utilizing facsimile transmission equipment, electronic mail, or computer server;
      2. The magistrate shall confirm with the declarant the receipt of the warrant and the supporting declarations and attachments. The magistrate shall verify that all the pages sent have been received, that all pages are legible, and that the declarant's signature, digital signature, or electronic signature is acknowledged as genuine; and
      3. If the magistrate decides to issue the warrant, he or she shall:
         1. Cause the warrant, supporting declarations, and attachments to be subsequently printed if those documents are received by electronic mail or computer server;
         2. Sign the warrant. The magistrate's signature may be in the form of a digital signature or electronic signature if electronic mail or computer server is used for transmission to the magistrate;
         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 declarant was administered orally over the telephone; and
         5. The completed warrant, as signed by the magistrate, shall be deemed to be the original warrant.
      4. The magistrate shall transmit via facsimile transmission equipment, electronic mail, or computer server, the signed warrant to the declarant who shall telephonically acknowledge its receipt. The magistrate shall then telephonically authorize the declarant to write the words "duplicate original" on the copy of the completed warrant transmitted to the declarant and this document shall be deemed to be a duplicate original warrant.
4. States that before issuing a warrant, the magistrate may examine under oath the person seeking the warrant and any witness the person may produce, take the written declaration of the person or witness, and cause the person or witness to subscribe the declaration.
5. Specifies that before issuing a search warrant, the judge may question under oath the person seeking the warrant and any witnesses the person may produce, and shall take his or her affidavit in writing.
6. Allows the judge to take an oral statement in support of a search warrant, under oath, under one of the following conditions:
   1. The oath shall be made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for a search warrant. 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 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;
   2. The oath is made using telephone and facsimile transmission equipment, telephone and email, or telephone and computer server, as follows:
      1. The oath is made during a telephone conversation with the magistrate, after the affiant has signed his or her affidavit in support of the application for the search warrant and transmitted the proposed search warrant and all supporting affidavits and documents to the magistrate. The affiant's signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission to the magistrate;
      2. 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, digital signature, or electronic signature is acknowledged as genuine; and
      3. If the magistrate decides to issue the search warrant, he or she shall:
         1. Sign the warrant. The magistrate's signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission by the magistrate;
         2. Note on the warrant the exact date and time of the issuance of the warrant; and
         3. Indicate on the warrant that the oath of the affiant was administered orally over the telephone.
7. Requires the judge to transmit via facsimile transmission equipment, email, or computer server, the signed search warrant to the affiant. The completed search warrant, as signed by the magistrate and received by the affiant, shall be deemed to be the original warrant.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: Author's Statement: According to the author, "While [Penal Code] Section 817 requires multiple telephonic conversations between the magistrate and the officer, [Penal Code] Section 1526 requires only one. Section 817 deems the completed warrant signed by the magistrate as the original warrant and the copy of the completed warrant is designated as a duplicate original. Section 1526 instead deems the completed search warrant, as signed by the magistrate and received by the affiant, as the original warrant. Moreover, the telephonic conversations between officers and magistrates for arrest and search warrants can be considerable, especially for courts that experience a greater volume of applications.

''According to the Superior Court of San Bernardino County, the requirement of a phone conversation significantly lengthens the amount of time required to review the warrant because '[f]requently, the arresting officer fails to answer at the phone number provided, and it requires multiple attempts for the judge to make telephonic contact with the officer.' The court further viewed this requirement as unnecessary because (1) the magistrate's questioning of the officer would be irrelevant in litigating a facial challenge to the warrant; (2) an officer willing to lie in writing would not likely be deterred by a telephone conversation; and (3) the officer's accountability is already ensured by the sworn affidavit or probable cause declaration. Lastly, the court reasoned that warrant requests submitted after hours are necessarily emergencies and that the requirement of a telephonic conversation often delays or results in the rejection of the warrant.

''AB 2710 addresses these concerns by amending Sections 817 and 1526 to align them and make procedures more efficient by: (1) providing that the warrant signed by the magistrate and received by the officer be deemed the original warrant; (2) no longer requiring the magistrate to print the warrant; and (3) eliminating the oral oath requirement, with the magistrate exercising discretion to call the officer when appropriate. "

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0002675

Date of Hearing: April 10, 2018

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

As Proposed to be Amended in Committee

SUMMARY:

Eliminates the requirement that a judge take the oath over the telephone when an officer makes an application for a search warrant or arrest warrant by fax, email, or computer server. Requires an officer to sign a declaration in support of search or arrest warrant under penalty of perjury. Conforms the procedures to obtain search and arrest warrants by fax, email, or computer server. Specifically, this bill:

1. Eliminates the requirement that a judge take the oath over the telephone when an officer makes an application for an arrest warrant by fax, email, or computer server.
   
2. Eliminates the requirement that the judge confirm by telephone that the officer has received the signed arrest warrant by fax, email, or computer server.
   
3. Eliminates the requirement that a judge take the oath over the telephone when an officer makes an application for a search warrant by fax, email, or computer server.
   
4. Requires an officer to sign under penalty of perjury his or her declaration in support of probable cause for issuance of a search or arrest warrant, when the application for the warrant is made by fax, email or computer server.
   
5. Allows a judge’s signature on an arrest warrant to be in the form of a digital signature or electronic signature if email or computer server was used for transmission to the magistrate.
   
6. Specifies an arrest warrant, signed by the judge, and received by the declarant, shall be deemed to be the original warrant when warrant is faxed, emailed, or sent by computer server.
7. Permits the affiant’s signature to be in the form of a digital signature or electronic signature if email or computer server is used for transmission to the magistrate of a search warrant application.
8. Deletes the requirement that the judge confirm with the declarant the receipt of the warrant and the supporting declarations and attachments, when the application is made by fax, email, or computer server.
9. Deletes the requirement that the judge verify that all the pages sent have been received, that all pages are legible, and that the declarant’s signature, digital signature, or electronic signature is acknowledged as genuine, when the application for an arrest or search warrant is made by fax, email, or computer server.
   
10. Conforms the procedures to obtain search and arrest warrants by fax, email, or computer server

EXISTING LAW:

1. States a declaration of probable cause for arrest is made by a peace officer, as specified, the judge, if, and only if, satisfied from the declaration that there exists probable cause that the offense described in the declaration has been committed and that the defendant described therein has committed the offense, shall issue a warrant of probable cause for the arrest of the defendant. (Pen. Code, § 817, subd. (a)(1).)
   
2. Specifies that the declaration in support of the warrant of probable cause for arrest shall be a sworn statement made in writing. (Pen. Code, § 817, subd. (b).)
   
3. Provides that as an alternative to the written declaration, the judge may take an oral statement under oath under one of the following conditions: (Pen. Code, § 817, subd. (c)(1)-(2).)
   
   1. The oath shall be taken under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be the declaration for the purposes of this section. 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 clerk of the court. In the alternative, the sworn oral statement may be recorded by a certified court reporter who shall certify the transcript of the statement, after which the magistrate receiving it shall certify the transcript, which shall be filed with the clerk of the court; or
      
   2. The oath is made using telephone and facsimile transmission equipment, or made using telephone and electronic mail, or telephone and computer server, under all of the following conditions:
      
      1. The oath is made during a telephone conversation with the magistrate, after which the declarant shall sign his or her declaration in support of the warrant of probable cause for arrest. The proposed warrant and all supporting declarations and attachments shall then be transmitted to the magistrate utilizing facsimile transmission equipment, electronic mail, or computer server;
         
      2. The magistrate shall confirm with the declarant the receipt of the warrant and the supporting declarations and attachments. The magistrate shall verify that all the pages sent have been received, that all pages are legible, and that the declarant’s signature, digital signature, or electronic signature is acknowledged as genuine; and
         
      3. If the magistrate decides to issue the warrant, he or she shall:
         
         1. Cause the warrant, supporting declarations, and attachments to be subsequently printed if those documents are received by electronic mail or computer server;
            
         2. Sign the warrant. The magistrate’s signature may be in the form of a digital signature or electronic signature if electronic mail or computer server is used for transmission to the magistrate;
            
         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 declarant was administered orally over the telephone; and
            
         5. The completed warrant, as signed by the magistrate, shall be deemed to be the original warrant.
            
      4. The magistrate shall transmit via facsimile transmission equipment, electronic mail, or computer server, the signed warrant to the declarant who shall telephonically acknowledge its receipt. The magistrate shall then telephonically authorize the declarant to write the words “duplicate original” on the copy of the completed warrant transmitted to the declarant and this document shall be deemed to be a duplicate original warrant.
         
4. States that before issuing a warrant, the magistrate may examine under oath the person seeking the warrant and any witness the person may produce, take the written declaration of the person or witness, and cause the person or witness to subscribe the declaration. (Pen. Code, § 817, subd. (d).)
   
5. Specifies that before issuing a search warrant, the judge may question under oath the person seeking the warrant and any witnesses the person may produce, and shall take his or her affidavit in writing. (Pen. Code, § 1526, subd. (a).)
   
6. Allows the judge to take an oral statement in support of a search warrant, under oath, under one of the following conditions:
   
   1. The oath shall be made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for a search warrant. 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 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;
      
   2. The oath is made using telephone and facsimile transmission equipment, telephone and email, or telephone and computer server, as follows:
      
      1. The oath is made during a telephone conversation with the magistrate, after the affiant has signed his or her affidavit in support of the application for the search warrant and transmitted the proposed search warrant and all supporting affidavits and documents to the magistrate. The affiant’s signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission to the magistrate;
         
      2. 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, digital signature, or electronic signature is acknowledged as genuine; and
         
      3. If the magistrate decides to issue the search warrant, he or she shall:
         
         1. Sign the warrant. The magistrate’s signature may be in the form of a digital signature or electronic signature if email or computer server is used for transmission by the magistrate;
            
         2. Note on the warrant the exact date and time of the issuance of the warrant; and
            
         3. Indicate on the warrant that the oath of the affiant was administered orally over the telephone.
            
7. Requires the judge to transmit via facsimile transmission equipment, email, or computer server, the signed search warrant to the affiant. The completed search warrant, as signed by the magistrate and received by the affiant, shall be deemed to be the original warrant.

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "While section 817 requires multiple telephonic conversations between the magistrate and the officer, section 1526 requires only one. Section 817 deems the completed warrant signed by the magistrate as the original warrant and the copy of the completed warrant is designated as a duplicate original. Section 1526 instead deems the completed search warrant, as signed by the magistrate and received by the affiant, as the original warrant. Moreover, the telephonic conversations between officers and magistrates for arrest and search warrants can be considerable, especially for courts that experience a greater volume of applications.
   
   “According to the Superior Court of San Bernardino County, the requirement of a phone conversation significantly lengthens the amount of time required to review the warrant because ‘[f]requently, the arresting officer fails to answer at the phone number provided, and it requires multiple attempts for the judge to make telephonic contact with the officer.’ The court further viewed this requirement as unnecessary because (1) the magistrate’s questioning of the officer would be irrelevant in litigating a facial challenge to the warrant; (2) an officer willing to lie in writing would not likely be deterred by a telephone conversation; and (3) the officer’s accountability is already ensured by the sworn affidavit or probable cause declaration. Lastly, the court reasoned that warrant requests submitted after hours are necessarily emergencies and that the requirement of a telephonic conversation often delays or results in the rejection of the warrant.

“AB 2710 addresses these concerns by amending sections 817 and 1526 to align them and make procedures more efficient by: (1) providing that the warrant signed by the magistrate and received by the officer be deemed the original warrant; (2) no longer requiring the magistrate to print the warrant; and (3) eliminating the oral oath requirement, with the magistrate exercising discretion to call the officer when appropriate.

1. Applications for Arrest and Search Warrants: With the increasing use of technologies such as email and the ability to electronically transmit data, courts are increasing relying on such mediums to manage their documents. The Legislature has passed a number of bills to provide the courts more latitude to handle applications for arrest and search warrants by electronic means.
   
   SB 1970 (Schiff) Chapter 692 in 1998 authorized an application for a search warrant to be made by electronic mail including that the affiant's signature in support of the affidavit for the warrant can be made by digital signature. This was updated in 2010 with AB 2505 (A. Strickland) to allow a magistrate to return a search warrant by electronic signature.
   
   AB 1004 (Gray), Chapter 460, Statutes of 2013, specified that the declaration in support of probable cause for an arrest warrant may be by telephone and computer server and that the signature may be an electronic signature.
   

AB 39 (Medina), Chapter 193, Statutes of 2015, required an affiant to first sign his or her affidavit and send the proposed search warrant and all supporting affidavits and attachments to the magistrate, after which the affiant would make his or her oath during a telephone conversation with the magistrate.

Current law allows applications for search and arrest warrants to be made by an officer in person, or made by an officer remotely by means of, telephone and fax, telephone and electronic mail, or telephone and computer server.

Current law involving a remote application for an arrest warrant requires the judge to administer the oath to the officer during a telephone conversation after which the officer signs the declaration in support of the warrant of probable cause for arrest. The proposed warrant and all supporting declarations and attachments are then be transmitted to the judge utilizing fax machine, electronic mail, or computer server. The judge is required to confirm with the officer the receipt of the warrant and the supporting declarations and attachments. The judge must verify that all the pages sent have been received, that all pages are legible, and that the declarant’s signature, digital signature, or electronic signature is acknowledged as genuine. Once the judge sends the signed arrest warrant to the officer by fax, email, or computer server, the officer must acknowledge receipt of the arrest warrant over the telephone.

The process for obtaining a search warrant by fax, email, or computer server is similar, but has some differences. When applying for a search warrant remotely, the oath is made during a telephone conversation with the magistrate, after the officer has signed his or her affidavit in support of the application for the search warrant and transmitted the proposed search warrant and all supporting affidavits and documents to the judge. After the judge sends the signed search warrant to the officer, there is no requirement that the officer acknowledge receipt of the warrant over the telephone.

This bill conforms the procedure required to seek arrest and search warrants by fax, email, or computer server. This bill eliminates the requirement that the court issue the oath to the officer over the telephone.

There is a concern that eliminating the telephone conversation, makes it less likely that a judge will ask clarifying questions of the officer applying for the arrest or search warrant. However, this bill does maintain the authority of the judge to examine under oath the person seeking the warrant and any witness the person may produce, take the written declaration of the person or witness, and cause the person or witness to subscribe the declaration, before issuing a search or arrest warrant. The judge has that authority whether the warrants are sought in person, or by fax, email, or computer server.

This bill would also eliminate the requirement that the judge verify that all the pages sent have been received, that all pages are legible, and that the declarant’s signature, digital signature, or electronic signature is acknowledged as genuine, when the application for an arrest or search warrant is made by fax, email, or computer server. One would expect that if a judge receives a declaration for arrest warrant or an affidavit for a search warrant, the judge would notice if pages were missing, or that the pages were not legible, without the need to communicate with the officer, and the judge would take appropriate steps to acquire the missing information. If pages were missing, one would also expect that the declaration or affidavit would not contain sufficient information to establish probable cause for the issuance of the arrest or search warrant, and as a result, the judge would not issue a warrant. It is worth noting that there is not a similar requirement for the judge to verify with the officer that all the pages are present when the officer submits a declaration or affidavit directly to the officer.

1. As Proposed to be Amended in Committee: The proposed amendments clarify that an officer’s affidavit in support of an application for a search warrant be signed under penalty of perjury.
   
2. Argument in Support: According to the Judicial Council, “Under current law, although the procedures set forth in sections 817 and 1526 are similar, there are several differences resulting from recent amendments to section 1526 (AB 39, Ch. 193, Stats. 2015.) Whereas, section 817 currently requires multiple telephonic conversations between the magistrate and the officer, section 1526 requires only one. In addition, section 817 provides that the completed warrant, as signed by the magistrate, is deemed the original warrant and requires that the magistrate authorize the officer to write ‘duplicate original’ on the copy of the completed warrant. Section 1526 instead provides that ‘[t]he completed search warrant, as signed by the magistrate and received by the affiant, shall be deemed to be the original warrant.’ (§ 1526(b)(2)(D). AB 2710 aligns section 817 with section 1526 by deeming the warrant signed by the magistrate and received by the officer as the original warrant and no longer requiring the magistrate to print the warrant.
   
   “In addition, AB 2710 amends sections 817 and 1526 to allow magistrates to issue arrest and search warrants electronically without a telephonic conversation between the officer and the magistrate by eliminating the requirement of an oral oath, while retaining the written oath requirement under existing law. AB 2710 provides the magistrate with discretion to question telephonically the officer about any concerns and to clarify any ambiguity in the affidavit or declaration. The council believes this will make the warrant procedure more efficient because the magistrate will no longer have to wait hours for the officer to return their phone call. Currently, it is not uncommon for magistrates to wait – often late in the night or early morning – for the officer to return their call because the officer has been called away on another assignment or is otherwise unavailable. Also, the affidavits and probable cause declarations for the offenses more commonly committed at this hour, such as driving under the influence, are frequently submitted on a standardized form containing check boxes, with the result that fewer ambiguities and questions arise. Finally, by eliminating the requirement of an oral oath, AB 2710 aligns electronic and paper processes. The statues currently do not require an oral statement under oath if the officer submits written affidavits and probable cause declaration in paper form (§§817(b), 1526(a).) They do allow, but not require, the magistrate to examine the person seeking the warrant under oath. (Id., §§ 817(d), 1526(a).)”
   
3. Argument in Opposition: According to the California Public Defenders Association, “AB 2710 would eliminate several procedural protections that make sure that the awesome power to arrest when no criminal case is pending and the power to search persons and homes is properly authorized.
   
   “Normally, magistrates issue arrest warrants by authority of Penal Code section 817 when a criminal case is on file, which means that a prosecutor has determined that there is a strong case against the person to be arrested.
   
   “Penal Code section 817, however, permits magistrates to issue arrest warrants when there is no criminal complaint on file, and moreover, the arrest does not begin that process. In other words, under section 817 it is arrest first, try and build a strong case later.
   
   “Current law permits these warrants to be obtained electronically, but with procedural protections to make sure this awesome power is not exercised in a mistaken manner; for example, the magistrate must confirm with the officer seeking the warrant that it has been properly received, will all pages, declarations, and attachments.
   
   “AB 2701 would also eliminate similar procedural protections in the case of electronically-obtained search warrants.
   
   “These are not just empty bureaucratic red tape. They are important protections, not just for the people arrested and searched, but for magistrates, and for all of California, to make sure that these awesome powers are correctly exercised.”
   
4. Related Legislation: AB 2526 (Rubio), would allow a judicial officer to issue a temporary order orally based on the statements of the law enforcement officer. AB 2526 is awaiting hearing in the Assembly Appropriations Committee.
   
5. Prior Legislation:
   
   1. AB 1004 (Gray), Chapter 460, Statutes of 2013, specified that the declaration in support of probable cause for an arrest warrant may be by telephone and computer server and that the signature may be an electronic signature.
      
   2. AB 39 (Medina), Chapter 193, Statutes of 2015, required an affiant to first sign his or her affidavit and send the proposed search warrant and all supporting affidavits and attachments to the magistrate, after which the affiant would make his or her oath during a telephone conversation with the magistrate.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Judicial Council (Sponsor)
California District Attorneys Association

California Judges Association

Opposition

California Public Defenders Association

Analysis Prepared by: