AB 539: Search warrants.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2017-09-28
Existing law allows a search warrant to be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also specifies the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized constitute evidence showing that a felony has been committed.
Existing law defines the crime of disorderly conduct as including, among other things, actions involving the use of an instrumentality to view the interior of specified rooms with the intent to invade the privacy of individuals, or the use of specified devices to secretly videotape film, photograph, or to record an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, or in a state of full or partial undress, as specified. Under existing law, these crimes are punishable as misdemeanors.
This bill would authorize a search warrant to be issued on the grounds that the property or things to be seized consist of evidence that tends to show that a violation of the above described crime of disorderly conduct has occurred or is occurring. The bill would also make a technical, nonsubstantive change.
Existing law allows a search warrant to be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also specifies the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized constitute evidence showing that a felony has been committed.
Existing law defines the crime of disorderly conduct as including, among other things, actions involving the use of an instrumentality to view the interior of specified rooms with the intent to invade the privacy of individuals, or the use of specified devices to secretly videotape film, photograph, or to record an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, or in a state of full or partial undress, as specified. Under existing law, these crimes are punishable as misdemeanors.
This bill would authorize a search warrant to be issued on the grounds that the property or things to be seized consist of evidence that tends to show that a violation of the above described crime of disorderly conduct has occurred or is occurring. The bill would also make a technical, nonsubstantive change.
Existing law allows a search warrant to be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also specifies the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized constitute evidence showing that a felony has been committed.
Existing law defines the crime of disorderly conduct as including, among other things, actions involving the use of an instrumentality to view the interior of specified rooms with the intent to invade the privacy of individuals, or the use of specified devices to secretly videotape film, photograph, or to record an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, or in a state of full or partial undress, as specified. Under existing law, these crimes are punishable as misdemeanors.
This bill would authorize a search warrant to be issued in compliance with the Electronic Communications Privacy Act on the grounds that the property or things to be seized consist of evidence that tends to show that a violation of the above described crime of disorderly conduct has occurred or is occurring. The bill would also make a technical, nonsubstantive change.
Existing law allows a search warrant to be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also specifies the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized constitute evidence showing that a felony has been committed.
Existing law defines the crime of disorderly conduct as including, among other things, actions involving the use of an instrumentality to view the interior of specified rooms with the intent to invade the privacy of individuals, or the use of specified devices to secretly videotape film, photograph, or to record an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, or in a state of full or partial undress, as specified. Under existing law, these crimes are punishable as misdemeanors.
This bill would authorize a search warrant to be issued in compliance with the Electronic Communications Privacy Act on the grounds that the property or things to be seized consist of evidence that tends to show that a violation of the above described crime of disorderly conduct has occurred or is occurring.
Existing law provides that allows a search warrant may only to be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also specifies the grounds upon which a search warrant may be issued. issued, including, among other grounds, when the property or things to be seized constitute evidence showing that a felony has been committed.
Existing law defines the crime of disorderly conduct as including, among other things, actions involving the use of an instrumentality to view the interior of specified rooms with the intent to invade the privacy of individuals, the use of specified devices to secretly videotape film, photograph, or record an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, or in a state of full or partial undress, as specified, and the distribution of images of intimate body parts of another identifiable person, or an image of the person engaged in specified acts, as specified. specified. Under existing law, these crimes are punishable as misdemeanors.
This bill would authorize a search warrant to be issued on the grounds that the property or things to be seized consist of evidence that tends to show that a violation of the above described crime of disorderly conduct has occurred or is occurring.
Existing law provides that a search warrant may only be issued upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. Existing law also specifies the grounds upon which a search warrant may be issued.
Existing law defines the crime of disorderly conduct as including, among other things, actions involving the use of an instrumentality to view the interior of specified rooms with the intent to invade the privacy of individuals, the use of specified devices to secretly videotape film, photograph, or record an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, or in a state of full or partial undress, as specified, and the distribution of images of intimate body parts of another identifiable person, or an image of the person engaged in specified acts, as specified.
This bill would authorize a search warrant to be issued on the grounds that the property or things to be seized consist of evidence that tends to show that a violation of the above described crime of disorderly conduct has occurred or is occurring.
(a)A search warrant may be issued upon any of the following grounds:
(1)When the property was stolen or embezzled.
(2)When the property or things were used as the means of committing a felony.
(3)When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)When the property or things to be seized consist of an item or constitute evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.
(5)When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)When there is a warrant to arrest a person.
(7)When a provider of electronic communication service or remote computing service has records or evidence, as specified in Section 1524.3, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.
(8)When the property or things to be seized include an item or evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(9)When the property or things to be seized include a firearm or other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault as provided in Section 18250. This section does not affect warrantless seizures otherwise authorized by Section 18250.
(10)When the property or things to be seized include a firearm or other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person described in subdivision (a) of Section 8102 of the Welfare and Institutions Code.
(11)When the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 6389 of the Family Code, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a protective order has been issued pursuant to Section 6218 of the Family Code, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(12)When the information to be received from the use of a tracking device constitutes evidence that tends to show that either a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code has been committed or is being committed, tends to show that a particular person has committed a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code. A tracking device search warrant issued pursuant to this paragraph shall be executed in a manner meeting the requirements specified in subdivision (b) of Section 1534.
(13)When a sample of the blood of a person constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(14)Beginning January 1, 2016, the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order that has been issued pursuant to Division 3.2 (commencing with Section 18100) of Title 2 of Part 6, if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(15)Beginning January 1, 2018, the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 29800 or 29805, and the court has made a finding pursuant to subdivision (c) of Section 29810 that the person has failed to relinquish the firearm as required by law.
(16)When the property or things to be seized are controlled substances or a device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance pursuant to the authority described in Section 11472 of the Health and Safety Code.
(17)(A)When all of the following apply:
(i)A sample of the blood of a person constitutes evidence that tends to show a violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code.
(ii)The person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 655.1 of the Harbors and Navigation Code.
(iii)The sample will be drawn from the person in a reasonable, medically approved manner.
(B)This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(18)When the property or things to be seized consists of evidence that tends to show that a violation of paragraph (1), (2), or (3) of subdivision (j) of Section 647 has occurred or is occurring.
(b)The property, things, person, or persons described in subdivision (a) may be taken on the warrant from any place, or from any person in whose possession the property or things may be.
(c)Notwithstanding subdivision (a) or (b), a search warrant shall not be issued for any documentary evidence in the possession or under the control of any person who is a lawyer as defined in Section 950 of the Evidence Code, a physician as defined in Section 990 of the Evidence Code, a psychotherapist as defined in Section 1010 of the Evidence Code, or a member of the clergy as defined in Section 1030 of the Evidence Code, and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless the following procedure has been complied with:
(1)At the time of the issuance of the warrant, the court shall appoint a special master in accordance with subdivision (d) to accompany the person who will serve the warrant. Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant.
(2)(A)If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.
(B)At the hearing, the party searched shall be entitled to raise any issues that may be raised pursuant to Section 1538.5 as well as a claim that the item or items are privileged, as provided by law. The hearing shall be held in the superior court. The court shall provide sufficient time for the parties to obtain counsel and make motions or present evidence. The hearing shall be held within three days of the service of the warrant unless the court makes a finding that the expedited hearing is impracticable. In that case, the matter shall be heard at the earliest possible time.
(C)If an item or items are taken to court for a hearing, any limitations of time prescribed in Chapter 2 (commencing with Section 799) of Title 3 of Part 2 shall be tolled from the time of the seizure until the final conclusion of the hearing, including any associated writ or appellate proceedings.
(3)The warrant shall, whenever practicable, be served during normal business hours. In addition, the warrant shall be served upon a party who appears to have possession or control of the items sought. If, after reasonable efforts, the party serving the warrant is unable to locate the person, the special master shall seal and return to the court, for determination by the court, any item that appears to be privileged as provided by law.
(d)(1)As used in this section, a special master is an attorney who is a member in good standing of the California State Bar and who has been selected from a list of qualified attorneys that is maintained by the State Bar particularly for the purposes of conducting the searches described in this section. These attorneys shall serve without compensation. A special master shall be considered a public employee, and the governmental entity that caused the search warrant to be issued shall be considered the employer of the special master and the applicable public entity, for purposes of Division 3.6 (commencing with Section 810) of Title 1 of the Government Code, relating to claims and actions against public entities and public employees. In selecting the special master, the court shall make every reasonable effort to ensure that the person selected has no relationship with any of the parties involved in the pending matter. Information obtained by the special master shall be confidential and may not be divulged except in direct response to inquiry by the court.
(2)In any case in which the magistrate determines that, after reasonable efforts have been made to obtain a special master, a special master is not available and would not be available within a reasonable period of time, the magistrate may direct the party seeking the order to conduct the search in the manner described in this section in lieu of the special master.
(e)Any search conducted pursuant to this section by a special master may be conducted in a manner that permits the party serving the warrant or his or her designee to accompany the special master as he or she conducts his or her search. However, that party or his or her designee may not participate in the search nor shall he or she examine any of the items being searched by the special master except upon agreement of the party upon whom the warrant has been served.
(f)As used in this section, documentary evidence includes, but is not limited to, writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films, and papers of any type or description.
(g)No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.
(h)Notwithstanding any other law, no claim of attorney work product as described in Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall be sustained where there is probable cause to believe that the lawyer is engaging or has engaged in criminal activity related to the documentary evidence for which a warrant is requested unless it is established at the hearing with respect to the documentary evidence seized under the warrant that the services of the lawyer were not sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.
(i)Nothing in this section is intended to limit an attorneys ability to request an in-camera hearing pursuant to the holding of the Supreme Court of California in People v. Superior Court (Laff) (2001) 25 Cal.4th 703.
(j)In addition to any other circumstance permitting a magistrate to issue a warrant for a person or property in another county, when the property or things to be seized consist of any item or constitute evidence that tends to show a violation of Section 530.5, the magistrate may issue a warrant to search a person or property located in another county if the person whose identifying information was taken or used resides in the same county as the issuing court.
(k)This section shall not be construed to create a cause of action against any foreign or California corporation, its officers, employees, agents, or other specified persons for providing location information.
(a)A search warrant may be issued upon any of the following grounds:
(1)When the property was stolen or embezzled.
(2)When the property or things were used as the means of committing a felony.
(3)When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)When the property or things to be seized consist of an item or constitute evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.
(5)When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)When there is a warrant to arrest a person.
(7)When a provider of electronic communication service or remote computing service has records or evidence, as specified in Section 1524.3, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.
(8)When the property or things to be seized include an item or evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(9)When the property or things to be seized include a firearm or other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault as provided in Section 18250. This section does not affect warrantless seizures otherwise authorized by Section 18250.
(10)When the property or things to be seized include a firearm or other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person described in subdivision (a) of Section 8102 of the Welfare and Institutions Code.
(11)When the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 6389 of the Family Code, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a protective order has been issued pursuant to Section 6218 of the Family Code, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(12)When the information to be received from the use of a tracking device constitutes evidence that tends to show that either a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code has been committed or is being committed, tends to show that a particular person has committed a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code. A tracking device search warrant issued pursuant to this paragraph shall be executed in a manner meeting the requirements specified in subdivision (b) of Section 1534.
(13)When a sample of the blood of a person constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(14)Beginning January 1, 2016, the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order that has been issued pursuant to Division 3.2 (commencing with Section 18100) of Title 2 of Part 6, if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(15)Beginning January 1, 2018, the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 29800 or 29805, and the court has made a finding pursuant to subdivision (c) of Section 29810 that the person has failed to relinquish the firearm as required by law.
(16)When the property or things to be seized are controlled substances or a device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance pursuant to the authority described in Section 11472 of the Health and Safety Code.
(17)(A)When all of the following apply:
(i)A sample of the blood of a person constitutes evidence that tends to show a violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code.
(ii)The person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 655.1 of the Harbors and Navigation Code.
(iii)The sample will be drawn from the person in a reasonable, medically approved manner.
(B)This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(18)When the property or things to be seized consists of evidence that tends to show that a violation of paragraph (1), (2), or (3) of subdivision (j) of Section 647 has occurred or is occurring.
(b)The property, things, person, or persons described in subdivision (a) may be taken on the warrant from any place, or from any person in whose possession the property or things may be.
(c)Notwithstanding subdivision (a) or (b), a search warrant shall not be issued for any documentary evidence in the possession or under the control of any person who is a lawyer as defined in Section 950 of the Evidence Code, a physician as defined in Section 990 of the Evidence Code, a psychotherapist as defined in Section 1010 of the Evidence Code, or a member of the clergy as defined in Section 1030 of the Evidence Code, and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless the following procedure has been complied with:
(1)At the time of the issuance of the warrant, the court shall appoint a special master in accordance with subdivision (d) to accompany the person who will serve the warrant. Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant.
(2)(A)If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.
(B)At the hearing, the party searched shall be entitled to raise any issues that may be raised pursuant to Section 1538.5 as well as a claim that the item or items are privileged, as provided by law. The hearing shall be held in the superior court. The court shall provide sufficient time for the parties to obtain counsel and make motions or present evidence. The hearing shall be held within three days of the service of the warrant unless the court makes a finding that the expedited hearing is impracticable. In that case, the matter shall be heard at the earliest possible time.
(C)If an item or items are taken to court for a hearing, any limitations of time prescribed in Chapter 2 (commencing with Section 799) of Title 3 of Part 2 shall be tolled from the time of the seizure until the final conclusion of the hearing, including any associated writ or appellate proceedings.
(3)The warrant shall, whenever practicable, be served during normal business hours. In addition, the warrant shall be served upon a party who appears to have possession or control of the items sought. If, after reasonable efforts, the party serving the warrant is unable to locate the person, the special master shall seal and return to the court, for determination by the court, any item that appears to be privileged as provided by law.
(d)(1)As used in this section, a special master is an attorney who is a member in good standing of the California State Bar and who has been selected from a list of qualified attorneys that is maintained by the State Bar particularly for the purposes of conducting the searches described in this section. These attorneys shall serve without compensation. A special master shall be considered a public employee, and the governmental entity that caused the search warrant to be issued shall be considered the employer of the special master and the applicable public entity, for purposes of Division 3.6 (commencing with Section 810) of Title 1 of the Government Code, relating to claims and actions against public entities and public employees. In selecting the special master, the court shall make every reasonable effort to ensure that the person selected has no relationship with any of the parties involved in the pending matter. Information obtained by the special master shall be confidential and may not be divulged except in direct response to inquiry by the court.
(2)In any case in which the magistrate determines that, after reasonable efforts have been made to obtain a special master, a special master is not available and would not be available within a reasonable period of time, the magistrate may direct the party seeking the order to conduct the search in the manner described in this section in lieu of the special master.
(e)Any search conducted pursuant to this section by a special master may be conducted in a manner that permits the party serving the warrant or his or her designee to accompany the special master as he or she conducts his or her search. However, that party or his or her designee may not participate in the search nor shall he or she examine any of the items being searched by the special master except upon agreement of the party upon whom the warrant has been served.
(f)As used in this section, documentary evidence includes, but is not limited to, writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films, and papers of any type or description.
(g)No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.
(h)Notwithstanding any other law, no claim of attorney work product as described in Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall be sustained where there is probable cause to believe that the lawyer is engaging or has engaged in criminal activity related to the documentary evidence for which a warrant is requested unless it is established at the hearing with respect to the documentary evidence seized under the warrant that the services of the lawyer were not sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.
(i)Nothing in this section is intended to limit an attorneys ability to request an in-camera hearing pursuant to the holding of the Supreme Court of California in People v. Superior Court (Laff) (2001) 25 Cal.4th 703.
(j)In addition to any other circumstance permitting a magistrate to issue a warrant for a person or property in another county, when the property or things to be seized consist of any item or constitute evidence that tends to show a violation of Section 530.5, the magistrate may issue a warrant to search a person or property located in another county if the person whose identifying information was taken or used resides in the same county as the issuing court.
(k)This section shall not be construed to create a cause of action against any foreign or California corporation, its officers, employees, agents, or other specified persons for providing location information.
(a)A search warrant may be issued upon any of the following grounds:
(1)When the property was stolen or embezzled.
(2)When the property or things were used as the means of committing a felony.
(3)When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)When the property or things to be seized consist of an item or constitute evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.
(5)When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)When there is a warrant to arrest a person.
(7)When a provider of electronic communication service or remote computing service has records or evidence, as specified in Section 1524.3, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.
(8)When the property or things to be seized include an item or evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(9)When the property or things to be seized include a firearm or other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault as provided in Section 18250. This section does not affect warrantless seizures otherwise authorized by Section 18250.
(10)When the property or things to be seized include a firearm or other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person described in subdivision (a) of Section 8102 of the Welfare and Institutions Code.
(11)When the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 6389 of the Family Code, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a protective order has been issued pursuant to Section 6218 of the Family Code, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(12)When the information to be received from the use of a tracking device constitutes evidence that tends to show that either a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code has been committed or is being committed, tends to show that a particular person has committed a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code. A tracking device search warrant issued pursuant to this paragraph shall be executed in a manner meeting the requirements specified in subdivision (b) of Section 1534.
(13)When a sample of the blood of a person constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(14)Beginning January 1, 2016, the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order that has been issued pursuant to Division 3.2 (commencing with Section 18100) of Title 2 of Part 6, if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(15)Beginning January 1, 2018, the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 29800 or 29805, and the court has made a finding pursuant to paragraph (3) of subdivision (c) of Section 29810 that the person has failed to relinquish the firearm as required by law.
(16)When the property or things to be seized are controlled substances or a device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance pursuant to the authority described in Section 11472 of the Health and Safety Code.
(17)(A)When all of the following apply:
(i)A sample of the blood of a person constitutes evidence that tends to show a violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code.
(ii)The person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 655.1 of the Harbors and Navigation Code.
(iii)The sample will be drawn from the person in a reasonable, medically approved manner.
(B)This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(18)When the property or things to be seized consists of evidence that tends to show that a violation of paragraph (1), (2), or (3) of subdivision (j) of Section 647 has occurred or is occurring. The issuance of a search warrant pursuant to this paragraph shall be made in compliance with the Electronic Communications Privacy Act (Chapter 3.6 (commencing with Section 1546)), if applicable.
(b)The property, things, person, or persons described in subdivision (a) may be taken on the warrant from any place, or from any person in whose possession the property or things may be.
(c)Notwithstanding subdivision (a) or (b), a search warrant shall not be issued for any documentary evidence in the possession or under the control of any person who is a lawyer as defined in Section 950 of the Evidence Code, a physician as defined in Section 990 of the Evidence Code, a psychotherapist as defined in Section 1010 of the Evidence Code, or a member of the clergy as defined in Section 1030 of the Evidence Code, and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless the following procedure has been complied with:
(1)At the time of the issuance of the warrant, the court shall appoint a special master in accordance with subdivision (d) to accompany the person who will serve the warrant. Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant.
(2)(A)If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.
(B)At the hearing, the party searched shall be entitled to raise any issues that may be raised pursuant to Section 1538.5 as well as a claim that the item or items are privileged, as provided by law. The hearing shall be held in the superior court. The court shall provide sufficient time for the parties to obtain counsel and make motions or present evidence. The hearing shall be held within three days of the service of the warrant unless the court makes a finding that the expedited hearing is impracticable. In that case, the matter shall be heard at the earliest possible time.
(C)If an item or items are taken to court for a hearing, any limitations of time prescribed in Chapter 2 (commencing with Section 799) of Title 3 of Part 2 shall be tolled from the time of the seizure until the final conclusion of the hearing, including any associated writ or appellate proceedings.
(3)The warrant shall, whenever practicable, be served during normal business hours. In addition, the warrant shall be served upon a party who appears to have possession or control of the items sought. If, after reasonable efforts, the party serving the warrant is unable to locate the person, the special master shall seal and return to the court, for determination by the court, any item that appears to be privileged as provided by law.
(d)(1)As used in this section, a special master is an attorney who is a member in good standing of the California State Bar and who has been selected from a list of qualified attorneys that is maintained by the State Bar particularly for the purposes of conducting the searches described in this section. These attorneys shall serve without compensation. A special master shall be considered a public employee, and the governmental entity that caused the search warrant to be issued shall be considered the employer of the special master and the applicable public entity, for purposes of Division 3.6 (commencing with Section 810) of Title 1 of the Government Code, relating to claims and actions against public entities and public employees. In selecting the special master, the court shall make every reasonable effort to ensure that the person selected has no relationship with any of the parties involved in the pending matter. Information obtained by the special master shall be confidential and may not be divulged except in direct response to inquiry by the court.
(2)In any case in which the magistrate determines that, after reasonable efforts have been made to obtain a special master, a special master is not available and would not be available within a reasonable period of time, the magistrate may direct the party seeking the order to conduct the search in the manner described in this section in lieu of the special master.
(e)Any search conducted pursuant to this section by a special master may be conducted in a manner that permits the party serving the warrant or his or her designee to accompany the special master as he or she conducts his or her search. However, that party or his or her designee may not participate in the search nor shall he or she examine any of the items being searched by the special master except upon agreement of the party upon whom the warrant has been served.
(f)As used in this section, documentary evidence includes, but is not limited to, writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films, and papers of any type or description.
(g)No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.
(h)Notwithstanding any other law, no claim of attorney work product as described in Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall be sustained where there is probable cause to believe that the lawyer is engaging or has engaged in criminal activity related to the documentary evidence for which a warrant is requested unless it is established at the hearing with respect to the documentary evidence seized under the warrant that the services of the lawyer were not sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.
(i)Nothing in this section is intended to limit an attorneys ability to request an in-camera hearing pursuant to the holding of the Supreme Court of California in People v. Superior Court (Laff) (2001) 25 Cal.4th 703.
(j)In addition to any other circumstance permitting a magistrate to issue a warrant for a person or property in another county, when the property or things to be seized consist of any item or constitute evidence that tends to show a violation of Section 530.5, the magistrate may issue a warrant to search a person or property located in another county if the person whose identifying information was taken or used resides in the same county as the issuing court.
(k)This section shall not be construed to create a cause of action against any foreign or California corporation, its officers, employees, agents, or other specified persons for providing location information.
(a)A search warrant may be issued upon any of the following grounds:
(1)When the property was stolen or embezzled.
(2)When the property or things were used as the means of committing a felony.
(3)When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)When the property or things to be seized consist of an item or constitute evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.
(5)When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)When there is a warrant to arrest a person.
(7)When a provider of electronic communication service or remote computing service has records or evidence, as specified in Section 1524.3, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.
(8)When the property or things to be seized include an item or evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(9)When the property or things to be seized include a firearm or other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault as provided in Section 18250. This section does not affect warrantless seizures otherwise authorized by Section 18250.
(10)When the property or things to be seized include a firearm or other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person described in subdivision (a) of Section 8102 of the Welfare and Institutions Code.
(11)When the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 6389 of the Family Code, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a protective order has been issued pursuant to Section 6218 of the Family Code, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(12)When the information to be received from the use of a tracking device constitutes evidence that tends to show that either a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code has been committed or is being committed, tends to show that a particular person has committed a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code. A tracking device search warrant issued pursuant to this paragraph shall be executed in a manner meeting the requirements specified in subdivision (b) of Section 1534.
(13)When a sample of the blood of a person constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(14)Beginning January 1, 2016, the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order that has been issued pursuant to Division 3.2 (commencing with Section 18100) of Title 2 of Part 6, if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(15)Beginning January 1, 2018, the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 29800 or 29805, and the court has made a finding pursuant to paragraph (3) of subdivision (c) of Section 29810 that the person has failed to relinquish the firearm as required by law.
(16)When the property or things to be seized are controlled substances or a device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance pursuant to the authority described in Section 11472 of the Health and Safety Code.
(17)(A)When all of the following apply:
(i)A sample of the blood of a person constitutes evidence that tends to show a violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code.
(ii)The person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 655.1 of the Harbors and Navigation Code.
(iii)The sample will be drawn from the person in a reasonable, medically approved manner.
(B)This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(18)When the property or things to be seized consists of evidence that tends to show that a violation of paragraph (1), (2), or (3) of subdivision (j) of Section 647 has occurred or is occurring. The issuance of a search warrant pursuant to this paragraph shall be made in compliance with the Electronic Communications Privacy Act (Chapter 3.6 (commencing with Section 1546)), if applicable.
(b)The property, things, person, or persons described in subdivision (a) may be taken on the warrant from any place, or from any person in whose possession the property or things may be.
(c)Notwithstanding subdivision (a) or (b), a search warrant shall not be issued for any documentary evidence in the possession or under the control of any person who is a lawyer as defined in Section 950 of the Evidence Code, a physician as defined in Section 990 of the Evidence Code, a psychotherapist as defined in Section 1010 of the Evidence Code, or a member of the clergy as defined in Section 1030 of the Evidence Code, and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless the following procedure has been complied with:
(1)At the time of the issuance of the warrant, the court shall appoint a special master in accordance with subdivision (d) to accompany the person who will serve the warrant. Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant.
(2)(A)If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.
(B)At the hearing, the party searched shall be entitled to raise any issues that may be raised pursuant to Section 1538.5 as well as a claim that the item or items are privileged, as provided by law. The hearing shall be held in the superior court. The court shall provide sufficient time for the parties to obtain counsel and make motions or present evidence. The hearing shall be held within three days of the service of the warrant unless the court makes a finding that the expedited hearing is impracticable. In that case, the matter shall be heard at the earliest possible time.
(C)If an item or items are taken to court for a hearing, any limitations of time prescribed in Chapter 2 (commencing with Section 799) of Title 3 of Part 2 shall be tolled from the time of the seizure until the final conclusion of the hearing, including any associated writ or appellate proceedings.
(3)The warrant shall, whenever practicable, be served during normal business hours. In addition, the warrant shall be served upon a party who appears to have possession or control of the items sought. If, after reasonable efforts, the party serving the warrant is unable to locate the person, the special master shall seal and return to the court, for determination by the court, any item that appears to be privileged as provided by law.
(d)(1)As used in this section, a special master is an attorney who is a member in good standing of the California State Bar and who has been selected from a list of qualified attorneys that is maintained by the State Bar particularly for the purposes of conducting the searches described in this section. These attorneys shall serve without compensation. A special master shall be considered a public employee, and the governmental entity that caused the search warrant to be issued shall be considered the employer of the special master and the applicable public entity, for purposes of Division 3.6 (commencing with Section 810) of Title 1 of the Government Code, relating to claims and actions against public entities and public employees. In selecting the special master, the court shall make every reasonable effort to ensure that the person selected has no relationship with any of the parties involved in the pending matter. Information obtained by the special master shall be confidential and may not be divulged except in direct response to inquiry by the court.
(2)In any case in which the magistrate determines that, after reasonable efforts have been made to obtain a special master, a special master is not available and would not be available within a reasonable period of time, the magistrate may direct the party seeking the order to conduct the search in the manner described in this section in lieu of the special master.
(e)Any search conducted pursuant to this section by a special master may be conducted in a manner that permits the party serving the warrant or his or her designee to accompany the special master as he or she conducts his or her search. However, that party or his or her designee may not participate in the search nor shall he or she examine any of the items being searched by the special master except upon agreement of the party upon whom the warrant has been served.
(f)As used in this section, documentary evidence includes, but is not limited to, writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films, and papers of any type or description.
(g)No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.
(h)Notwithstanding any other law, no claim of attorney work product as described in Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall be sustained where there is probable cause to believe that the lawyer is engaging or has engaged in criminal activity related to the documentary evidence for which a warrant is requested unless it is established at the hearing with respect to the documentary evidence seized under the warrant that the services of the lawyer were not sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.
(i)Nothing in this section is intended to limit an attorneys ability to request an in-camera hearing pursuant to the holding of the Supreme Court of California in People v. Superior Court (Laff) (2001) 25 Cal.4th 703.
(j)In addition to any other circumstance permitting a magistrate to issue a warrant for a person or property in another county, when the property or things to be seized consist of any item or constitute evidence that tends to show a violation of Section 530.5, the magistrate may issue a warrant to search a person or property located in another county if the person whose identifying information was taken or used resides in the same county as the issuing court.
(k)This section shall not be construed to create a cause of action against any foreign or California corporation, its officers, employees, agents, or other specified persons for providing location information.
(a)A search warrant may be issued upon any of the following grounds:
(1)When the property was stolen or embezzled.
(2)When the property or things were used as the means of committing a felony.
(3)When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)When the property or things to be seized consist of an item or constitute evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.
(5)When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)When there is a warrant to arrest a person.
(7)When a provider of electronic communication service or remote computing service has records or evidence, as specified in Section 1524.3, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.
(8)When the property or things to be seized include an item or evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(9)When the property or things to be seized include a firearm or other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault as provided in Section 18250. This section does not affect warrantless seizures otherwise authorized by Section 18250.
(10)When the property or things to be seized include a firearm or other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person described in subdivision (a) of Section 8102 of the Welfare and Institutions Code.
(11)When the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 6389 of the Family Code, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a protective order has been issued pursuant to Section 6218 of the Family Code, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(12)When the information to be received from the use of a tracking device constitutes evidence that tends to show that either a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code has been committed or is being committed, tends to show that a particular person has committed a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code. A tracking device search warrant issued pursuant to this paragraph shall be executed in a manner meeting the requirements specified in subdivision (b) of Section 1534.
(13)When a sample of the blood of a person constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(14)Beginning January 1, 2016, the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order that has been issued pursuant to Division 3.2 (commencing with Section 18100) of Title 2 of Part 6, if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(15)Beginning January 1, 2018, the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 29800 or 29805, and the court has made a finding pursuant to paragraph (3) of subdivision (c) of Section 29810 that the person has failed to relinquish the firearm as required by law.
(16)When the property or things to be seized are controlled substances or a device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance pursuant to the authority described in Section 11472 of the Health and Safety Code.
(17)(A)When all of the following apply:
(i)A sample of the blood of a person constitutes evidence that tends to show a violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code.
(ii)The person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 655.1 of the Harbors and Navigation Code.
(iii)The sample will be drawn from the person in a reasonable, medically approved manner.
(B)This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(18)When the property or things to be seized consists of evidence that tends to show that a violation of paragraph (1), (2), or (3) of subdivision (j) of Section 647 has occurred or is occurring.
(b)The property, things, person, or persons described in subdivision (a) may be taken on the warrant from any place, or from any person in whose possession the property or things may be.
(c)Notwithstanding subdivision (a) or (b), no search warrant shall issue a search warrant shall not be issued for any documentary evidence in the possession or under the control of any person who is a lawyer as defined in Section 950 of the Evidence Code, a physician as defined in Section 990 of the Evidence Code, a psychotherapist as defined in Section 1010 of the Evidence Code, or a member of the clergy as defined in Section 1030 of the Evidence Code, and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless the following procedure has been complied with:
(1)At the time of the issuance of the warrant, the court shall appoint a special master in accordance with subdivision (d) to accompany the person who will serve the warrant. Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant.
(2)(A)If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.
(B)At the hearing, the party searched shall be entitled to raise any issues that may be raised pursuant to Section 1538.5 as well as a claim that the item or items are privileged, as provided by law. The hearing shall be held in the superior court. The court shall provide sufficient time for the parties to obtain counsel and make motions or present evidence. The hearing shall be held within three days of the service of the warrant unless the court makes a finding that the expedited hearing is impracticable. In that case, the matter shall be heard at the earliest possible time.
(C)If an item or items are taken to court for a hearing, any limitations of time prescribed in Chapter 2 (commencing with Section 799) of Title 3 of Part 2 shall be tolled from the time of the seizure until the final conclusion of the hearing, including any associated writ or appellate proceedings.
(3)The warrant shall, whenever practicable, be served during normal business hours. In addition, the warrant shall be served upon a party who appears to have possession or control of the items sought. If, after reasonable efforts, the party serving the warrant is unable to locate the person, the special master shall seal and return to the court, for determination by the court, any item that appears to be privileged as provided by law.
(d)(1)As used in this section, a special master is an attorney who is a member in good standing of the California State Bar and who has been selected from a list of qualified attorneys that is maintained by the State Bar particularly for the purposes of conducting the searches described in this section. These attorneys shall serve without compensation. A special master shall be considered a public employee, and the governmental entity that caused the search warrant to be issued shall be considered the employer of the special master and the applicable public entity, for purposes of Division 3.6 (commencing with Section 810) of Title 1 of the Government Code, relating to claims and actions against public entities and public employees. In selecting the special master, the court shall make every reasonable effort to ensure that the person selected has no relationship with any of the parties involved in the pending matter. Information obtained by the special master shall be confidential and may not be divulged except in direct response to inquiry by the court.
(2)In any case in which the magistrate determines that, after reasonable efforts have been made to obtain a special master, a special master is not available and would not be available within a reasonable period of time, the magistrate may direct the party seeking the order to conduct the search in the manner described in this section in lieu of the special master.
(e)Any search conducted pursuant to this section by a special master may be conducted in a manner that permits the party serving the warrant or his or her designee to accompany the special master as he or she conducts his or her search. However, that party or his or her designee may not participate in the search nor shall he or she examine any of the items being searched by the special master except upon agreement of the party upon whom the warrant has been served.
(f)As used in this section, documentary evidence includes, but is not limited to, writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films, and papers of any type or description.
(g)No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.
(h)Notwithstanding any other law, no claim of attorney work product as described in Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall be sustained where there is probable cause to believe that the lawyer is engaging or has engaged in criminal activity related to the documentary evidence for which a warrant is requested unless it is established at the hearing with respect to the documentary evidence seized under the warrant that the services of the lawyer were not sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.
(i)Nothing in this section is intended to limit an attorneys ability to request an in-camera hearing pursuant to the holding of the Supreme Court of California in People v. Superior Court (Laff) (2001) 25 Cal.4th 703.
(j)In addition to any other circumstance permitting a magistrate to issue a warrant for a person or property in another county, when the property or things to be seized consist of any item or constitute evidence that tends to show a violation of Section 530.5, the magistrate may issue a warrant to search a person or property located in another county if the person whose identifying information was taken or used resides in the same county as the issuing court.
(k)This section shall not be construed to create a cause of action against any foreign or California corporation, its officers, employees, agents, or other specified persons for providing location information.
(a)A search warrant may be issued upon any of the following grounds:
(1)When the property was stolen or embezzled.
(2)When the property or things were used as the means of committing a felony.
(3)When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered.
(4)When the property or things to be seized consist of an item or constitute evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.
(5)When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, in violation of Section 311.3, or possession of matter depicting sexual conduct of a person under 18 years of age, in violation of Section 311.11, has occurred or is occurring.
(6)When there is a warrant to arrest a person.
(7)When a provider of electronic communication service or remote computing service has records or evidence, as specified in Section 1524.3, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.
(8)When the property or things to be seized include an item or evidence that tends to show a violation of Section 3700.5 of the Labor Code, or tends to show that a particular person has violated Section 3700.5 of the Labor Code.
(9)When the property or things to be seized include a firearm or other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault as provided in Section 18250. This section does not affect warrantless seizures otherwise authorized by Section 18250.
(10)When the property or things to be seized include a firearm or other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person described in subdivision (a) of Section 8102 of the Welfare and Institutions Code.
(11)When the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 6389 of the Family Code, if a prohibited firearm is possessed, owned, in the custody of, or controlled by a person against whom a protective order has been issued pursuant to Section 6218 of the Family Code, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(12)When the information to be received from the use of a tracking device constitutes evidence that tends to show that either a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code has been committed or is being committed, tends to show that a particular person has committed a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code, or will assist in locating an individual who has committed or is committing a felony, a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code. A tracking device search warrant issued pursuant to this paragraph shall be executed in a manner meeting the requirements specified in subdivision (b) of Section 1534.
(13)When a sample of the blood of a person constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(14)Beginning January 1, 2016, the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order that has been issued pursuant to Division 3.2 (commencing with Section 18100) of Title 2 of Part 6, if a prohibited firearm or ammunition or both is possessed, owned, in the custody of, or controlled by a person against whom a gun violence restraining order has been issued, the person has been lawfully served with that order, and the person has failed to relinquish the firearm as required by law.
(15)Beginning January 1, 2018, the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms pursuant to Section 29800 or 29805, and the court has made a finding pursuant to paragraph (3) of subdivision (c) of Section 29810 that the person has failed to relinquish the firearm as required by law.
(16)When the property or things to be seized are controlled substances or a device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance pursuant to the authority described in Section 11472 of the Health and Safety Code.
(17)(A)When all of the following apply:
(i)A sample of the blood of a person constitutes evidence that tends to show a violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code.
(ii)The person from whom the sample is being sought has refused an officers request to submit to, or has failed to complete, a blood test as required by Section 655.1 of the Harbors and Navigation Code.
(iii)The sample will be drawn from the person in a reasonable, medically approved manner.
(B)This paragraph is not intended to abrogate a courts mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.
(18)When the property or things to be seized consists of evidence that tends to show that a violation of subdivision (j) of Section 647 has occurred or is occurring.
(b)The property, things, person, or persons described in subdivision (a) may be taken on the warrant from any place, or from any person in whose possession the property or things may be.
(c)Notwithstanding subdivision (a) or (b), no search warrant shall issue for any documentary evidence in the possession or under the control of any person who is a lawyer as defined in Section 950 of the Evidence Code, a physician as defined in Section 990 of the Evidence Code, a psychotherapist as defined in Section 1010 of the Evidence Code, or a member of the clergy as defined in Section 1030 of the Evidence Code, and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless the following procedure has been complied with:
(1)At the time of the issuance of the warrant, the court shall appoint a special master in accordance with subdivision (d) to accompany the person who will serve the warrant. Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant.
(2)(A)If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.
(B)At the hearing, the party searched shall be entitled to raise any issues that may be raised pursuant to Section 1538.5 as well as a claim that the item or items are privileged, as provided by law. The hearing shall be held in the superior court. The court shall provide sufficient time for the parties to obtain counsel and make motions or present evidence. The hearing shall be held within three days of the service of the warrant unless the court makes a finding that the expedited hearing is impracticable. In that case, the matter shall be heard at the earliest possible time.
(C)If an item or items are taken to court for a hearing, any limitations of time prescribed in Chapter 2 (commencing with Section 799) of Title 3 of Part 2 shall be tolled from the time of the seizure until the final conclusion of the hearing, including any associated writ or appellate proceedings.
(3)The warrant shall, whenever practicable, be served during normal business hours. In addition, the warrant shall be served upon a party who appears to have possession or control of the items sought. If, after reasonable efforts, the party serving the warrant is unable to locate the person, the special master shall seal and return to the court, for determination by the court, any item that appears to be privileged as provided by law.
(d)(1)As used in this section, a special master is an attorney who is a member in good standing of the California State Bar and who has been selected from a list of qualified attorneys that is maintained by the State Bar particularly for the purposes of conducting the searches described in this section. These attorneys shall serve without compensation. A special master shall be considered a public employee, and the governmental entity that caused the search warrant to be issued shall be considered the employer of the special master and the applicable public entity, for purposes of Division 3.6 (commencing with Section 810) of Title 1 of the Government Code, relating to claims and actions against public entities and public employees. In selecting the special master, the court shall make every reasonable effort to ensure that the person selected has no relationship with any of the parties involved in the pending matter. Information obtained by the special master shall be confidential and may not be divulged except in direct response to inquiry by the court.
(2)In any case in which the magistrate determines that, after reasonable efforts have been made to obtain a special master, a special master is not available and would not be available within a reasonable period of time, the magistrate may direct the party seeking the order to conduct the search in the manner described in this section in lieu of the special master.
(e)Any search conducted pursuant to this section by a special master may be conducted in a manner that permits the party serving the warrant or his or her designee to accompany the special master as he or she conducts his or her search. However, that party or his or her designee may not participate in the search nor shall he or she examine any of the items being searched by the special master except upon agreement of the party upon whom the warrant has been served.
(f)As used in this section, documentary evidence includes, but is not limited to, writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films, and papers of any type or description.
(g)No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.
(h)Notwithstanding any other law, no claim of attorney work product as described in Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of the Code of Civil Procedure shall be sustained where there is probable cause to believe that the lawyer is engaging or has engaged in criminal activity related to the documentary evidence for which a warrant is requested unless it is established at the hearing with respect to the documentary evidence seized under the warrant that the services of the lawyer were not sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.
(i)Nothing in this section is intended to limit an attorneys ability to request an in-camera hearing pursuant to the holding of the Supreme Court of California in People v. Superior Court (Laff) (2001) 25 Cal.4th 703.
(j)In addition to any other circumstance permitting a magistrate to issue a warrant for a person or property in another county, when the property or things to be seized consist of any item or constitute evidence that tends to show a violation of Section 530.5, the magistrate may issue a warrant to search a person or property located in another county if the person whose identifying information was taken or used resides in the same county as the issuing court.
(k)This section shall not be construed to create a cause of action against any foreign or California corporation, its officers, employees, agents, or other specified persons for providing location information.
|
Date
|
Status
|
|---|---|
| Sep 28, 2017 | Chaptered by Secretary of State - Chapter 342, Statutes of 2017. |
| Sep 28, 2017 | Approved by the Governor. |
| Sep 25, 2017 | Enrolled and presented to the Governor at 12 p.m. |
| Sep 14, 2017 | Senate amendments concurred in. To Engrossing and Enrolling. |
| Sep 14, 2017 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 76. Noes 0. Page 3367.). |
| Sep 13, 2017 | Assembly Rule 77(a) suspended. |
| Sep 13, 2017 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after September 15 pursuant to Assembly Rule 77. |
| Sep 12, 2017 | Read third time. Passed. Ordered to the Assembly. |
| Jul 11, 2017 | Read second time. Ordered to third reading. |
| Jul 10, 2017 | From committee: Be ordered to second reading pursuant to Senate Rule 28.8. |
| Jul 3, 2017 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on APPR. |
| Jun 20, 2017 | Read second time and amended. Re-referred to Com. on APPR. |
| Jun 19, 2017 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 6. Noes 1.) (June 13). |
| May 10, 2017 | Referred to Coms. on PUB. S. and APPR. |
| Apr 17, 2017 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Apr 17, 2017 | Read third time. Passed. Ordered to the Senate. (Ayes 73. Noes 0. Page 1014.) |
| Apr 5, 2017 | Read second time. Ordered to third reading. |
| Apr 4, 2017 | Read second time and amended. Ordered returned to second reading. |
| Apr 3, 2017 | From committee: Amend, and do pass as amended. (Ayes 6. Noes 0.) (March 28). |
| Mar 21, 2017 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Feb 27, 2017 | Referred to Com. on PUB. S. |
| Feb 14, 2017 | From printer. May be heard in committee March 16. |
| Feb 13, 2017 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 14, 2017 | AB 539 ACOSTA Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Sep 12, 2017 | Assembly 3rd Reading AB539 Acosta By Nguyen | Senate Floor |
Passed |
|
| Jun 13, 2017 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
|
| Apr 17, 2017 | Favorable With Committee Substitute (Children, Families & Seniors Subcommittee) | Assembly Floor |
Passed |
|
| Mar 28, 2017 | Do pass as amended. | Assembly Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Assembly Floor Vote: 73 - 0 | ** Against | Jun 12, 2017 |
| California Attorneys For Criminal Justice | ** Against | Jul 12, 2017 |
| California District Attorneys Association | ** Support | Jul 12, 2017 |
| California Public Defenders Association | ** Against | Jul 12, 2017 |
| California State Sheriffs' Association | ** Support | Jul 12, 2017 |
| PURPOSE | ** Against | Jun 12, 2017 |
| San Diego County District Attorney's Office | ** Support | Jul 12, 2017 |
| When The Property Was Stolen Or Embezzled; .) | ** Against | Jun 12, 2017 |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 539
Author:(Acosta)
As Amended Ver:July 3, 2017
Majority vote
ASSEMBLY: | 73-0 | (April 17, 2017) | SENATE: | 36-2 | (September 12, 2017) |
Original Committee Reference: PUB. S.
SUMMARY: Expands the grounds for issuance of a search warrant to include evidence of a misdemeanor violation of disorderly conduct, as specified.
The Senate amendments make a technical, nonsubstantive change.
EXISTING LAW:
- Provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
- Defines a "search warrant" as a written order in the name of the people, signed by a magistrate and directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and in the case of a thing or things or personal property, bring the same before the magistrate.
- States that a search warrant may be issued:
- When a provider of electronic communication service or remote computing service has records or evidence, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery:
- States that an electronic communication service provider or remote computing service, as specified, must disclose to a governmental prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, the types of services the subscriber or customer utilized, and the contents of communication originated by or addressed to the service provider when the governmental entity is granted a search warrant under this provision.
- Requires that the search warrant be limited to only that information necessary to achieve the objective of the warrant, as specified.
- Requires that information obtained through execution of the warrant, which is unrelated to the objective of the warrant, be sealed and not be subject to further review without an order from the court.
- Requires the government entity receiving subscriber records or information under this provision to provide notice to a subscriber or customer upon receipt of the requested information, as specified.
- Provides that upon a peace officer's request, the provider of wire or electronic communication services or a remote computing service must take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant. Records must be retained for specified time periods.
- States that no cause of action shall be brought against and provider, its officer, employees, or agents for providing information, facilities, or assistance in good faith compliance with a search warrant.
- When a provider of electronic communication service or remote computing service has records or evidence, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery:
- The property, things, person, or persons described in the foregoing provisions may be taken on the warrant from any place, or from any person in whose possession the property or things may be.
- Provides that a search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.
- Requires a magistrate to issue a search warrant if he or she is satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence.
- Prohibits disorderly conduct, including:
- Actions involving the use of any instrumentality to view the interior of specified rooms, in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of individuals inside
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person in a state of full or partial undress, for the purpose of viewing the body or undergarments, without the consent or knowledge of that other person, in the interior of specified rooms in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person
- Intentionally distributing the image of the intimate body part or parts, as defined, of another identifiable person, or an image of the person depicted engaged in specified sexual acts, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress, except as specified; and
- A person who commits any of the acts described above is guilty of disorderly conduct, a misdemeanor, except a child under 18 years of age who is alleged to have engaged in conduct to receive either money or other consideration, as specified.
AS PASSED BY THE ASSEMBLY, this bill provided that a search warrant may be issued when the property or things to be seized consists of evidence that tends to show a violation of any of the following disorderly conduct laws occurred or is occurring:
- Actions involving the use of any instrumentality to view the interior of specified rooms, in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of individuals inside;
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy; or
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person in a state of full or partial undress, for the purpose of viewing the body or undergarments, without the consent or knowledge of that other person, in the interior of specified rooms in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.
FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS: According to the author, "AB 539 offers our law enforcement and district attorneys another tool to protect communities. Law enforcement should be able to investigate violations of our privacy that occur in locations where privacy is often the foundation of our perceived security, such as our own bedroom, bathroom, or even changing room. Once that trust has been violated it may be difficult or take time to ever rebuild that feeling of safety.
"Violations of privacy could often be easily proved with the simple ability to request a search warrant. This solution could help a victim get the immediate justice they deserve and help them begin the healing process. AB 539 can also prevent the next person from ever becoming a victim."
Analysis Prepared by: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0001117
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 539
:
SENATE PUBLIC SAFETY COMMITTEE: 6-1, 6/13/17
AYES: Skinner, Anderson, Bradford, Jackson, Stone, Wiener
NOES: Mitchell
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 73-0, 4/17/17 - See last page for vote
SOURCE: California District Attorneys Association
DIGEST:
This bill authorizes the issuance of a search warrant for violations of invasion of privacy laws.
Existing law:
- Provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. (U.S. Const., 4th Amend.; Cal. Const., Art. I, § 13.)
- Defines a “search warrant” as a written order in the name of the people, signed by a magistrate and directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and in the case of a thing or things or personal property, bring the same before the magistrate. (Pen. Code, § 1523.)
- Enumerates the grounds upon which a search warrant may be issued. (Pen. Code, § 1524, subd. (a)).
- Provides that a search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. (Pen. Code, § 1525.)
- Makes it a misdemeanor for any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. (Pen. Code § 647, subd. (j)(1).)
- States that it is a misdemeanor for any person to use a concealed device to secretly videotape or record by electronic means another identifiable person under or through his or her clothing, for the purpose of viewing that person’s body or undergarments without consent and under circumstances in which that person has a reasonable expectation of privacy, if the perpetrator commits the act with a prurient intent. (Pen. Code § 647, subd. (j)(2).)
- States that it is a misdemeanor for any person who uses a concealed device to secretly videotape or record another identifiable person who is in a state of full or partial undress, for the purpose of viewing that person’s body or undergarments without consent while that person is in a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that individual. (Pen. Code § 647, subd. (j)(3).)
This bill expands the grounds for issuance of a search warrant to include when the property or things to be seized consists of evidence that tends to show a violation of invasion of privacy laws, as specified.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
California District Attorneys Association (source)
California State Sheriffs’ Association
San Diego County District Attorney’s Office
OPPOSITION: (Verified 7/10/17)
California Attorneys for Criminal Justice
California Public Defenders Association
ARGUMENT IN SUPPORT: According to the California State Sheriffs’ Association, “AB 539 would authorize the issuance of search warrants to collect evidence that would show misdemeanor violations of the invasion of privacy.”
ARGUMENT IN OPPOSITION: According to the California Public Defenders Association, “AB 539 seeks to expand the scope of offenses that permit police intrusion into the family home by authorizing the issuance of search warrants in cases involving any misdemeanor violation of section 647(j). Such an expansion is contrary to the current statutory restriction to such warrants to investigations involving serious offenses.”
ASSEMBLY FLOOR: 73-0, 4/17/17
AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Voepel, Waldron, Weber, Wood, Rendon
NO VOTE RECORDED: Bonta, Brough, Cunningham, Gray, Mathis, Quirk, Ting
Prepared by: Stella Choe / PUB. S. /
7/12/17 9:52:51
**** END ****
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Nancy Skinner, Chair
2017 - 2018 Regular
Bill No: AB 539 Hearing Date: June 13, 2017
Author: | Acosta | ||
Version: | April 4, 2017 | ||
Urgency: | No | Fiscal: | No |
Consultant: | SC | ||
Subject: Search Warrants
HISTORY
Source: California District Attorneys Association
Prior Legislation: AB 539 (Levine), Chapter 118, Statutes of 2015
AB 1104 (Rodriguez), Chapter 124, Statutes of 2015
AB 1310 (Gatto), Ch. 643, Stats. 2015
SB 178 (Leno), Ch. 651, Stats. 2015
AB 1014 (Skinner), Ch. 872, Stats. 2014
SB 717 (DeSaulnier), Chapter 317, Statutes of 2013
Support: California State Sheriffs’ Association; San Diego County District Attorney’s Office
Opposition: California Attorneys for Criminal Justice; California Public Defenders Association
Assembly Floor Vote: 73 - 0
PURPOSE
The purpose of this bill is to authorize the issuance of a search warrant for violations of invasion of privacy laws.
Existing law provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. (U.S. Const., 4th Amend.; Cal. Const., Art. I, § 13.)
Existing law defines a “search warrant” as a written order in the name of the people, signed by a magistrate and directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and in the case of a thing or things or personal property, bring the same before the magistrate. (Pen. Code, § 1523.)
Existing law states that a search warrant may be issued upon any of the following grounds:
- When the property was stolen or embezzled; (Pen. Code, § 1524, subd. (a)(1).)
- When the property or things were used as the means of committing a felony; (Pen. Code, § 1524, subd. (a)(2).)
- When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another person to whom the property or things were delivered for the purpose of concealing them or preventing them from being discovered; (Pen. Code, § 1524, subd. (a)(3).)
- When the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony; (Pen. Code, § 1524, subd. (a)(4).)
- When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, or possession of matter depicting sexual conduct of a person under the age of 18 years, has occurred or is occurring; (Pen. Code, § 1524, subd. (a)(5).)
- When there is a warrant to arrest a person; (Pen. Code, § 1524, subd. (a)(6).)
- When a provider of electronic communication service or remote computing service has records or evidence, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery; (Pen. Code, § 1524, subd. (a)(7).)
- When the property or things to be seized include an item or any evidence that tends to show a violation of the Labor Code, as specified; (Pen. Code, § 1524, subd. (a)(8).)
- When the property or things to be seized include a firearm or any other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault; (Pen. Code, § 1524, subd. (a)(9).)
- When the property or things to be seized include a firearm or any other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person as specified, in the Welfare and Institutions Code; (Pen. Code, § 1524, subd. (a)(10).)
- When the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms under specified provisions of the Family Code; (Pen. Code, § 1524, subd. (a)(11).)
- When the information to be received from the use of a tracking device constitutes evidence that tends to show either a felony or a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code has been committed or is being committed; (Pen. Code, § 1524, subd. (a)(12).)
- When a sample of the blood of a person constitutes evidence that tends to show a violation of misdemeanor driving under the influence and the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test; (Pen. Code, § 1524, subd. (a)(13).)
- When the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order, as specified; (Pen. Code, § 1524, subd. (a)(14).)
- Beginning January 1, 2018, when the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is a convicted felon, and the court has found that the person has failed to relinquish the firearm as required by law; (Pen. Code, § 1524, subd. (a)(15).)
- When the property or things to be seized are controlled substances or a device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance, as specified; and (Pen. Code, § 1524, subd. (a)(16).)
- When all of the following apply: (1) a blood sample constitutes evidence that tends to show a violation of specified sections of the Harbors and Navigation Code relating to the operation of a marine vessel while under the influence of drugs or alcohol; (2) the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test; and (3) the sample will be drawn from the person in a reasonable, medically approved manner. This provision is not intended to abrogate a court’s mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis. (Pen. Code, § 1524, subd. (a)(17).)
Existing law provides that a search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. (Pen. Code, § 1525.)
Existing law requires a magistrate to issue a search warrant if he or she is satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence. (Pen. Code, § 1528, subd. (a).)
Existing law makes it a misdemeanor for any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. (Pen. Code § 647, subd. (j)(1).)
Existing law makes it a misdemeanor for any person to use a concealed device to secretly videotape or record by electronic means another identifiable person under or through his or her clothing, for the purpose of viewing that person’s body or undergarments without consent and under circumstances in which that person has a reasonable expectation of privacy, if the perpetrator commits the act with a prurient intent. (Pen. Code § 647, subd. (j)(2).)
Existing law makes it a misdemeanor for any person who uses a concealed device to secretly videotape or record another identifiable person who is in a state of full or partial undress, for the purpose of viewing that person’s body or undergarments without consent while that person is in a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that individual. (Pen. Code § 647, subd. (j)(3).)
This bill would expand the grounds for issuance of a search warrant to include when the property or things to be seized consists of evidence that tends to show a violation of invasion of privacy laws, as specified.
COMMENTS
1. Need for This Bill
According to the author:
Riley v. California (2014) __ U.S. __ , 134 S.Ct. 2473 requires a search warrant for most cell phone searches, and California’s Electronic Communication Privacy Act (Penal Code section 1546.1) now requires a warrant to search for electronic device information absent “specific consent.” With specified exceptions, PC 1524 generally provides for a warrant to search for evidence of a felony (subd. (a)(4)) or “[w]hen the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered” (subd. (a)(3)). Thus, it has become difficult to obtain crucial digital evidence of misdemeanor crimes that have already been committed with the use of an electronic device unless there is also probable cause to believe that the device is possessed with the intent to use it to commit a public offense in the future.
Penal Code section 647(j) proscribes . . . significant misdemeanor invasions of personal privacy committed with the use of a photographic or other device and AB 539 impacts Paragraphs 1-3. Paragraph (1) proscribes peeking into a bedroom, bathroom, dressing room, or other interior private area by means of an instrumentality such as a phone, camera or binoculars with an intent to invade the occupant’s privacy. Paragraph (2) proscribes the use of a photographic device to record under or through another person’s clothing without their consent and with sexual intent. Paragraph (3) proscribes using a photographic device to record another identifiable person in a state of full or partial undress in a bedroom, bathroom, or other interior private area in order to view their body or undergarments without their consent.
Penal Code section 1524 provides for a search warrant for evidence of Penal Code section 311.3 and 311.11 violations – crimes involving minor victims (see subd. (a)(5)). However, there is no similar provision when an adult victim is photographed without his or her consent. At UC Santa Cruz alone, there were seven reported PC 647(j) incidents from April 2015 to January 2016 where a cell phone or other device was utilized to spy on and/or photograph an unconsenting adult female in a bathroom stall or shower. One victim’s suicide demonstrates the great harm that can flow from the use of a phone to surreptitiously record a person in a bathroom stall. It is unfathomable that a suspect should be allowed to keep a partially or fully unclothed image of his victim because law enforcement cannot get a search warrant for a cell phone or device containing evidence of a 647(j)(1-3) violation that has already occurred.
2. The Fourth Amendment and Search Warrants
Both the United States and the California constitutions guarantee the right of all persons to be secure from unreasonable searches and seizures. (U.S. Const., amend. IV; Cal. Const., art. 1, sec. 13.) This protection applies to all unreasonable government intrusions into legitimate expectations of privacy. (United States v. Chadwick (1977) 433 U.S. 1, 7, overruled on other grounds by California v. Acevedo (1991) 500 U.S. 565.) In general, a search is not valid unless it is conducted pursuant to a warrant. A search warrant may not be issued without probable cause. "Reasonable and probable cause exists if a man of ordinary care and prudence would be led to conscientiously entertain an honest and strong suspicion that the accused is guilty." (People v. Alvarado (1967) 250 Cal.App.2d 584, 591.) The mere reasonableness of a search, assessed in light of the surrounding circumstances, is not a substitute for the warrant required by the Constitution. (Arkansas v. Sanders (1979) 442 U.S. 753, 758, overruled on other grounds by California v. Acevedo, supra.) There are exceptions to the warrant requirement, but the burden of establishing an exception is on the party seeking one. (Arkansas v. Sanders (1979) 442 U.S. 753, 760, overruled on other grounds by California v. Acevedo, supra.)
In California, Penal Code section 1524 provides the statutory grounds for the issuance of warrants. Under these provisions, a search warrant may be issued "[w]hen property or things were used as the means to commit a felony." (Pen. Code, § 1524, subd. (a)(2).) There are other enumerated circumstances that authorize a search warrant regardless of whether the crime was a felony or misdemeanor, such as "[w]hen the property subject to search was stolen or embezzled." (Pen. Code, § 1524, subd. (a)(1).) Additionally, Penal Code section 1524 provides that a search warrant may be issued "[w]hen the property or things are in the possession of any person with the intent to use them as a means of committing a public offense. . .." (Pen. Code, § 1524, subd. (a)(3).) A "public offense" is defined as crimes which include felonies, misdemeanors, and infractions. (Pen. Code, § 16.)
This bill adds specified provisions of misdemeanor invasion of privacy crimes to the narrowly defined list of misdemeanors for which a search warrant may be sought, when the evidence tends to show that the specified crimes has occurred or is occurring.
3. Electronic Information and Privacy Rights
In Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473, 2495], the United States Supreme Court held that law enforcement officers generally must secure a warrant before searching the digital content of a cell phone incident to an arrest, observing that a cell phone “not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form….” (Id. at p. 2491.) “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life’ [citation].” (Id. at pp. 2494–2495.)
The California Electronic Communications Privacy Act (Leno), Chapter 651, Statutes of 2015, is a comprehensive digital privacy law which took effect on January 1, 2016 (§ 1546 et seq.).
[I]t requires all California state and local law enforcement agencies to obtain a search warrant or wiretap order before they can access any electronic communication information. The law defines ‘electronic communication information’ in the broadest terms possible so that it includes emails, digital documents, text messages, location information, and any digital information stored in the cloud. The law protects all aspects of electronic communication information, not just its contents, but also metadata information relating to the sender, recipient, format, time, date, and location of the communications, including IP addresses.
CalECPA also limits the ability of California law enforcement to obtain information directly from a smartphone or similar device, or to track them. Law enforcement must either obtain a warrant or get the consent of the person possessing the electronic device.
(Daniels, California Updates Privacy Rights with the Electronic Communications Privacy Act (Nov. 17, 2015) JDSupra.)
Much of the evidence that would be sought in cases of invasion of privacy would likely be on an electronic device such as a cell phone or on a computer. The CalECPA requires a search warrant whenever law enforcement seeks to obtain electronic information on a cell phone or similar electronic device and contains additional specified requirements for such warrants and the handling of electronic information obtained through the warrant.
Should this bill be amended to specify that a search warrant sought pursuant to the provisions of this bill are subject to the requirements in CalECPA?
4. Argument in Support
The California State Sheriffs’ Association writes in support of this bill:
Current statute outlines four significant misdemeanor invasion of personal privacy offenses. Existing law, however, generally provides for a warrant to search for evidence only if the suspected offense is a felony.
AB 539 would authorize the issuance of search warrants to collect evidence that would show misdemeanor violations of the invasion of privacy.
5. Argument in Opposition
The California Public Defenders Association writes in opposition of this bill:
Under current law, California restricts the use of search warrants, that is, judicially sanctioned orders permitting police intrusion into our most private spaces, to investigations generally involving serious, felonious, criminal conduct. Thus, law enforcement is permitted to violate the privacy of the family home only where the need is significant, but is not permitted to do so when the alleged violation is minor. While law enforcement may seek court permission to intrude on a family home or access a private computer in instances where the police wish to recover items used in the commission of a felony, they are barred from doing so when investigating a misdemeanor violation of disturbing the peace. (See Pen. Code, § 1524.)
AB 539 seeks to expand the scope of offenses that permit police intrusion into the family home by authorizing the issuance of search warrants in cases involving any misdemeanor violation of section 647(j). Such an expansion is contrary to the current statutory restriction to such warrants to investigations involving serious offenses.
-- END –
ASSEMBLY THIRD READING
ATR Bill Id:AB 539
Author:(Acosta)
As Amended Ver:April 4, 2017
Majority vote
Committee | Votes | Ayes | Noes |
Public Safety | 6-0 | Jones-Sawyer, Lackey, Cunningham, Gonzalez Fletcher, Rubio, Santiago |
SUMMARY: Expands the grounds for issuance of a search warrant to include evidence of a misdemeanor violation of disorderly conduct, as specified. Specifically, this bill: Provides that a search warrant may be issued when the property or things to be seized consists of evidence that tends to show a violation of any of the following disorderly conduct laws occurred or is occurring:
- Actions involving the use of any instrumentality to view the interior of specified rooms, in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of individuals inside;
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy; or
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person in a state of full or partial undress, for the purpose of viewing the body or undergarments, without the consent or knowledge of that other person, in the interior of specified rooms in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.
EXISTING LAW:
- Provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
- Defines a "search warrant" as a written order in the name of the people, signed by a magistrate and directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and in the case of a thing or things or personal property, bring the same before the magistrate.
- States that a search warrant may be issued:
- When a provider of electronic communication service or remote computing service has records or evidence, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery:
- States that an electronic communication service provider or remote computing service, as specified, must disclose to a governmental prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, the types of services the subscriber or customer utilized, and the contents of communication originated by or addressed to the service provider when the governmental entity is granted a search warrant under this provision.
- Requires that the search warrant be limited to only that information necessary to achieve the objective of the warrant, as specified.
- Requires that information obtained through execution of the warrant, which is unrelated to the objective of the warrant, be sealed and not be subject to further review without an order from the court.
- Requires the government entity receiving subscriber records or information under this provision to provide notice to a subscriber or customer upon receipt of the requested information, as specified.
- Provides that upon a peace officer's request, the provider of wire or electronic communication services or a remote computing service must take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant. Records must be retained for specified time periods.
- States that no cause of action shall be brought against and provider, its officer, employees, or agents for providing information, facilities, or assistance in good faith compliance with a search warrant.
- When a provider of electronic communication service or remote computing service has records or evidence, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery:
- The property, things, person, or persons described in the foregoing provisions may be taken on the warrant from any place, or from any person in whose possession the property or things may be.
- Provides that a search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.
- Requires a magistrate to issue a search warrant if he or she is satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence.
- Prohibits disorderly conduct, including:
- Actions involving the use of any instrumentality to view the interior of specified rooms, in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of individuals inside
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person in a state of full or partial undress, for the purpose of viewing the body or undergarments, without the consent or knowledge of that other person, in the interior of specified rooms in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person
- Intentionally distributing the image of the intimate body part or parts, as defined, of another identifiable person, or an image of the person depicted engaged in specified sexual acts, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress, except as specified; and
- A person who commits any of the acts described above is guilty of disorderly conduct, a misdemeanor, except a child under 18 years of age who is alleged to have engaged in conduct to receive either money or other consideration, as specified.
FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.
COMMENTS: "AB 539 offers our law enforcement and district attorneys another tool to protect communities. Law enforcement should be able to investigate violations of our privacy that occur in locations where privacy is often the foundation of our perceived security, such as our own bedroom, bathroom, or even changing room. Once that trust has been violated it may be difficult or take time to ever rebuild that feeling of safety.
"Violations of privacy could often be easily proved with the simple ability to request a search warrant. This solution could help a victim get the immediate justice they deserve and help them begin the healing process. AB 539 can also prevent the next person from ever becoming a victim."
Analysis Prepared by: Cheryl Anderson / PUB. S. / (916) 319-3744 FN: 0000059
Date of Hearing:
Counsel: Cheryl Anderson
ASSEMBLY COMMITTEE ON
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:
Author:() – As Ver:
As Proposed to be Amended in Committee
SUMMARY:
- Expands the grounds for issuance of a search warrant to include evidence of a misdemeanor violation of disorderly conduct, as specified. Specifically, this bill: Provides that a search warrant may be issued when the property or things to be seized consists of evidence that tends to show a violation of any of the following disorderly conduct laws occurred or is occurring:
- Actions involving the use of any instrumentality to view the interior of specified rooms, in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of individuals inside;
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy; or
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person in a state of full or partial undress, for the purpose of viewing the body or undergarments, without the consent or knowledge of that other person, in the interior of specified rooms in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.
EXISTING LAW:
-
- Provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.)
- Defines a “search warrant” as a written order in the name of the people, signed by a magistrate and directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and in the case of a thing or things or personal property, bring the same before the magistrate. (Pen. Code, § 1523.)
- States that a search warrant may be issued upon any of the following grounds:
- When the property was stolen or embezzled; (Pen. Code, § 1524, subd. (a)(1).)
- When the property or things were used as the means of committing a felony; (Pen. Code, § 1524, subd. (a)(2).)
- When the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another person to whom the property or things were delivered for the purpose of concealing them or preventing them from being discovered; (Pen. Code, § 1524, subd. (a)(3).)
- When the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony; (Pen. Code, § 1524, subd. (a)(4).)
- When the property or things to be seized consist of evidence that tends to show that sexual exploitation of a child, or possession of matter depicting sexual conduct of a person under the age of 18 years, has occurred or is occurring; (Pen. Code, § 1524, subd. (a)(5).)
- When there is a warrant to arrest a person; (Pen. Code, § 1524, subd. (a)(6).)
- When a provider of electronic communication service or remote computing service has records or evidence, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery: (Pen. Code, § 1524, subd. (a)(7).)
- States that an electronic communication service provider or remote computing service, as specified, must disclose to a governmental prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, the types of services the subscriber or customer utilized, and the contents of communication originated by or addressed to the service provider when the governmental entity is granted a search warrant under this provision. (Pen. Code, § 1524.3, subd. (a).)
- Requires that the search warrant be limited to only that information necessary to achieve the objective of the warrant, as specified. (Pen. Code, § 1524.3, subd. (b).)
- Requires that information obtained through execution of the warrant, which is unrelated to the objective of the warrant, be sealed and not be subject to further review without an order from the court. (Pen. Code, § 1524.3, subd. (c).)
- Requires the government entity receiving subscriber records or information under this provision to provide notice to a subscriber or customer upon receipt of the requested information, as specified. (Pen. Code, § 1524.3, subds. (d) & (e).)
- Provides that upon a peace officer’s request, the provider of wire or electronic communication services or a remote computing service must take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to file a warrant. Records must be retained for specified time periods. (Pen. Code, § 1524.3, subd. (g).)
- States that no cause of action shall be brought against and provider, its officer, employees, or agents for providing information, facilities, or assistance in good faith compliance with a search warrant. (Pen. Code, § 1524.3, subd. (h).)
- States that an electronic communication service provider or remote computing service, as specified, must disclose to a governmental prosecuting or investigating agency the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, the types of services the subscriber or customer utilized, and the contents of communication originated by or addressed to the service provider when the governmental entity is granted a search warrant under this provision. (Pen. Code, § 1524.3, subd. (a).)
- When the property or things to be seized include an item or any evidence that tends to show a violation of the Labor Code, as specified; (Pen. Code, § 1524, subd. (a)(8).)
- When the property or things to be seized include a firearm or any other deadly weapon at the scene of, or at the premises occupied or under the control of the person arrested in connection with, a domestic violence incident involving a threat to human life or a physical assault; (Pen. Code, § 1524, subd. (a)(9).)
- When the property or things to be seized include a firearm or any other deadly weapon that is owned by, or in the possession of, or in the custody or control of, a person as specified, in the Welfare and Institutions Code; (Pen. Code, § 1524, subd. (a)(10).)
- When the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is subject to the prohibitions regarding firearms under specified provisions of the Family Code; (Pen. Code, § 1524, subd. (a)(11).)
- When the information to be received from the use of a tracking device constitutes evidence that tends to show either a felony or a misdemeanor violation of the Fish and Game Code, or a misdemeanor violation of the Public Resources Code has been committed or is being committed; (Pen. Code, § 1524, subd. (a)(12).)
- When a sample of the blood of a person constitutes evidence that tends to show a violation of misdemeanor driving under the influence and the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test; (Pen. Code, § 1524, subd. (a)(13).)
- When the property or things to be seized are firearms or ammunition or both that are owned by, in the possession of, or in the custody or control of a person who is the subject of a gun violence restraining order, as specified; (Pen. Code, § 1524, subd. (a)(14).)
- Beginning January 1, 2018, when the property or things to be seized include a firearm that is owned by, or in the possession of, or in the custody or control of, a person who is a convicted felon, and the court has found that the person has failed to relinquish the firearm as required by law; (Pen. Code, § 1524, subd. (a)(15).)
- When the property or things to be seized are controlled substances or a device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance, as specified; and (Pen. Code, § 1524, subd. (a)(16).)
- When all of the following apply: (1) a blood sample constitutes evidence that tends to show a violation of specified sections of the Harbors and Navigation Code relating to the operation of a marine vessel while under the influence of drugs or alcohol; (2) the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test; and (3) the sample will be drawn from the person in a reasonable, medically approved manner. This provision is not intended to abrogate a court’s mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis. (Pen. Code, § 1524, subd. (a)(17).)
- When the property was stolen or embezzled; (Pen. Code, § 1524, subd. (a)(1).)
- The property, things, person, or persons described in the foregoing provisions may be taken on the warrant from any place, or from any person in whose possession the property or things may be. (Pen. Code, § 1524, subd. (b).)
- Provides that a search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched. (Pen. Code, § 1525.)
- Requires a magistrate to issue a search warrant if he or she is satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence. (Pen. Code, § 1528, subd. (a).)
- Prohibits disorderly conduct, including:
- Actions involving the use of any instrumentality to view the interior of specified rooms, in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of individuals inside (Pen. Code, § 647, subd. (j)(1));
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person either under or through their clothing, for purposes of viewing the body or undergarments, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy (Pen. Code, § 647, subd. (j)(2));
- Use of specified devices to videotape, film, photograph, or record by electronic means an identifiable person in a state of full or partial undress, for the purpose of viewing the body or undergarments, without the consent or knowledge of that other person, in the interior of specified rooms in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person (Pen. Code, § 647, subd. (j)(3));
- Intentionally distributing the image of the intimate body part or parts, as defined, of another identifiable person, or an image of the person depicted engaged in specified sexual acts, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress, except as specified; and (Pen. Code, § 647, subd. (j)(4).)
- A person who commits any of the acts described above is guilty of disorderly conduct, a misdemeanor, except a child under 18 years of age who is alleged to have engaged in conduct to receive either money or other consideration, as specified. (Pen. Code, §§ 647, subd. (a) & (b)(5).)
- Actions involving the use of any instrumentality to view the interior of specified rooms, in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of individuals inside (Pen. Code, § 647, subd. (j)(1));
FISCAL EFFECT:
Unknown
COMMENTS:
- Author’s Statement: According to the author, “AB 539 offers our law enforcement and district attorneys another tool to protect communities. Law enforcement should be able to investigate violations of our privacy that occur in locations where privacy is often the foundation of our perceived security, such as our own bedroom, bathroom, or even changing room. Once that trust has been violated it may be difficult or take time to ever rebuild that feeling of safety.
“Violations of privacy could often be easily proved with the simple ability to request a search warrant. This solution could help a victim get the immediate justice they deserve and help them begin the healing process. AB 539 can also prevent the next person from ever becoming a victim.”
- The Fourth Amendment: Both the United States and the California constitutions guarantee the right of all persons to be secure from unreasonable searches and seizures. (U.S. Const., amend. IV; Cal. Const., art. 1, sec. 13.) This protection applies to all unreasonable government intrusions into legitimate expectations of privacy. (United States v. Chadwick (1977) 433 U.S. 1, 7, overruled on other grounds by California v. Acevedo (1991) 500 U.S. 565.) In general, a search is not valid unless it is conducted pursuant to a warrant. A search warrant may not be issued without probable cause. “Reasonable and probable cause exists if a man of ordinary care and prudence would be led to conscientiously entertain an honest and strong suspicion that the accused is guilty.” (People v. Alvarado (1967) 250 Cal.App.2d 584, 591, citations and quotations omitted.) The mere reasonableness of a search, assessed in light of the surrounding circumstances, is not a substitute for the warrant required by the Constitution. (Arkansas v. Sanders (1979) 442 U.S. 753, 758, overruled on other grounds by California v. Acevedo, supra.) There are exceptions to the warrant requirement, but the burden of establishing an exception is on the party seeking one. (Arkansas v. Sanders, supra, 442 U.S. at p. 760, overruled on other grounds by California v. Acevedo, supra.)
- Electronic Information and Privacy Rights: In Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473, 2495], the United States Supreme Court held that law enforcement officers generally must secure a warrant before searching the digital content of a cell phone incident to an arrest, observing that a cell phone “not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form….” (Id. at p. 2491.) “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life’ [citation].” (Id. at pp. 2494–2495.)
The California Electronic Communications Privacy Act (Leno), Chapter 651, Statutes of 2015, is a comprehensive digital privacy law which took effect on January 1, 2016 (§ 1546 et seq.).
[I]t requires all California state and local law enforcement agencies to obtain a search warrant or wiretap order before they can access any electronic communication information. The law defines ‘electronic communication information’ in the broadest terms possible so that it includes emails, digital documents, text messages, location information, and any digital information stored in the cloud. The law protects all aspects of electronic communication information, not just its contents, but also metadata information relating to the sender, recipient, format, time, date, and location of the communications, including IP addresses.
CalECPA also limits the ability of California law enforcement to obtain information directly from a smartphone or similar device, or to track them. Law enforcement must either obtain a warrant or get the consent of the person possessing the electronic device.
(Daniels, California Updates Privacy Rights with the Electronic Communications Privacy Act (Nov. 17, 2015) JDSupra.)
- Penal Code section 1534 and the Fourth Amendment: At one time, the Fourth Amendment was construed to prohibit search or seizure of “mere evidence” of a crime. (Gould v. U.S. (1921) 255 U.S. 298, 304-306 [41 S.Ct. 261].) Penal Code section 1524, which provides the statutory grounds for the issuance of warrants, took a broader view, allowing a search for evidence tending to show commission of a felony. (Pen. Code, § 1524, subd. (a)(4).) In People v. Thayer (1965) 63 Cal.2d 635, the California Supreme Court upheld the constitutionality of Penal Code section 1524, subdivision (a)(4). (Id. at p. 642.)
Thereafter, the United States Supreme Court addressed the distinction that had been made by some cases between seizure of items of evidential value only and seizure of instrumentalities, fruits, or contraband. The Court rejected the “mere evidence” rule – noting: “Nothing in the language of the Fourth Amendment supports the distinction between ‘mere evidence’ and instrumentalities, fruits of crime, or contraband.” (Warden v. Hayden (1967) 387 U.S. 294, 301-302 [87 S.Ct. 1642], citation omitted.)
In addition to authorizing a search warrant for evidence that tends to show a felony was committed, Penal Code section 1524 now enumerates limited circumstances authorizing a search warrant for evidence that tends to show a violation of a misdemeanor crime. For example, under current law, a search warrant can be issued on the grounds that property is possessed with the intent to use it as a means of committing a public offense. (Pen. Code, § 1524, subd. (a)(3).) This bill adds specified provisions of misdemeanor disorderly conduct to the narrowly defined list of misdemeanors for which a search warrant may be sought, when the evidence tends to show that the specified disorderly conduct has occurred or is occurring. - Practical Considerations: This bill applies to disorderly conduct in which the individual uses any instrumentality to view the interior of specified rooms to invade privacy, and disorderly conduct in which specified devices are used to secretly videotape, film, photograph, or record by electronic means an identifiable person either under or through their clothes, or in a state of full or partial dress, for purposes of viewing the body or undergarments, as specified. (Pen. Code, § 647, subd. (j)(1)-(3).)
This bill does not apply to disorderly conduct in which an image is distributed. (Pen. Code, § 647, subd. (j)(4).) This form of disorderly conduct turns on the distribution of the image. Because the image has already been distributed, a warrant is not necessary to obtain the image from the device used to take it. According to the background sheet provided by the author, this bill is also aimed at digital evidence. Digital evidence regarding who distributed – i.e., sent – the image can be obtained under current law. (Pen. Code, §§ 1524, subd. (a)(7) & 1524.3.)
As relevant here, law enforcement can currently seek a search warrant to investigate misdemeanor criminal conduct when a provider of electronic communication service or remote computing service has records or evidence showing that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense. (Pen. Code, § 1524, subd. (a)(7).) Under these circumstances, the investigating agency can obtain a search warrant for the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, and the types of services the subscriber or customer used. (Pen. Code 1524.3, subd. (a).) AB 1310 (Gatto), Chapter 643, Statutes of 2015, expanded this to include the contents of communications originated by or addressed to the service provided. (Pen. Code, § 1524.3, subd. (a).)
Importantly, AB 1310 specified that the warrant must “be limited to only that information necessary to achieve the objective of the warrant,….” (Pen. Code, § 1524.3, subdivision (b).) “Information obtained through the execution of a search warrant pursuant to this section that is unrelated to the objective of the warrant shall be sealed and not be subject to further review without an order from the court.” (Pen. Code, § 1524.3, subd. (c).) This provision provides some balance between law enforcement’s need to investigate crimes and an individual’s privacy rights.
- Argument in Support: According to the California District Attorney’s Association, the sponsor of this bill, “…Riley v. California 573 U.S. __ (2014) requires a search warrant for most cell phone searches, and California’s Electronic Communication Privacy Act (Penal Code section 1546.1) now requires a warrant to search for electronic device information absent ‘specific consent.’ With specified exceptions, PC 1524 generally provides for a warrant to search for evidence of a felony (subd. (a)(4)) or “[w]hen the property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing them from being discovered” (subd. (a)(3)). Thus, it has become difficult to obtain crucial digital evidence of misdemeanor crimes that have already been committed with the use of an electronic device unless there is also probable cause to believe that the device is possessed with the intent to use it to commit a public offense in the future.
“Code section 647(j) proscribes four significant misdemeanor invasions of personal privacy committed with the use of a photographic or other device. PC 647(j)(1) proscribes peeking into a bedroom, bathroom, dressing room, or other interior private area by means of an instrumentality such as a phone, camera or binoculars with an intent to invade the occupant’s privacy. PC 647(j)(2) proscribes the use of a photographic device to record under or through another person’s clothing without their consent and with sexual intent. PC 647(j)(3) proscribes using a photographic device to record another identifiable person in a state of full or partial undress in a bedroom, bathroom, or other interior private area in order to view their body or undergarments without their consent. PC 647(j)(4) proscribes the intentional distribution of an image of the intimate body parts of an identifiable person, or an image of the person engaged in specified sexual acts, when the persons agreed or understood the image would remain private and the distributor knows or should know that distribution will cause serious emotional distress and the victim suffers that distress.
“Penal Code section 1524 provides for a search warrant for evidence of Penal Code section 311.3 and 311.11 violations – crimes involving minor victims (see subd. (a)(5)). However, there is no similar provision when an adult victim is photographed without his or her consent.
“At UC Santa Cruz alone, there were seven reported PC 647(j) incidents from April 2015 to January 2016 where a cell phone or other device was utilized to spy on and/or photograph an unconsenting adult female in a bathroom stall or shower. One victim’s suicide demonstrates the great harm that can flow from the use of a phone to surreptitiously record a person in a bathroom stall. It is unfathomable that a suspect should be allowed to keep a partially or fully unclothed image of his victim because law enforcement cannot get a search warrant for a cell phone or device containing evidence of a 647(j) violation that has already occurred.
“It’s important to note that this bill would not undermine any existing laws regarding search warrants. Law enforcement would still be required to go through the process of establishing probable cause that one of these particular offenses has been committed, and it would remain in the discretion of a judge whether to issue the search warrant. This bill simply gives law enforcement the ability to seek a search warrant for a handful of specific misdemeanor crimes.”
- Argument in Opposition: According to the California Public Defender’s Association, “Under current law, California restricts the use of search warrants, that is, judicially sanctioned orders permitting police intrusion into our most private spaces, to investigations generally involving serious, felonious, criminal conduct. Thus, law enforcement is permitted to violate the privacy of the family home only where the need is significant, but is not permitted to do so when the alleged violation is minor. While law enforcement may seek court permission to intrude on a family home or access a private computer in instances where the police wish to recover items used in the commission of a felony, they are barred from doing so when investigating a misdemeanor violation of disturbing the peace. (See Pen. Code, § 1524.)
“AB 539 seeks to expand the scope of offenses that permit police intrusion into the family home by authorizing the issuance of search warrants in cases involving any misdemeanor violation of section 647(j). Such as expansion is contrary to the current statutory restriction to such warrants to investigations involving serious offenses.” - Related Legislation: AB 324 (Kiley), would eliminate the requirement that a victim be “identifiable” from the crimes of using a camera or similar device to photograph or otherwise record an identifiable person under or through their clothing, for the purpose of viewing their body or undergarments, for the purpose of sexual gratification, or to record an identifiable person who is in a state of full or partial undress in an area in which they have a reasonable expectation of privacy, without their consent. AB 324 was passed in the Assembly Committee on Public Safety and re-referred to the Assembly Committee on Appropriations.
- Prior Legislation:
- AB 539 (Levine), Chapter 118, Statutes of 2015, authorizes the issuance of a search warrant to compel a blood draw from a person where it constitutes evidence that tends to show a violation of operating a boat while under the influence of alcohol or drugs.
- AB 1104 (Rodriguez), Chapter 124, Statutes of 2015, authorizes the issuance of a search warrant when the property or things to be seized are controlled substances or any device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance.
- AB 1310 (Gatto), Chapter 643, Statutes of 2015, expanded a governmental entity’s authority to gather specified records from a provider of electronic communication service or a remote computing service by search warrant to include contents of communications originated by or addressed to the service provider.
- SB 178 (Leno), Chapter 651, Statutes of 2015, is a comprehensive digital privacy law.
- AB 1014 (Skinner), Chapter 872, Statutes of 2014, provided, in pertinent part, that a search warrant may be issued when the property or things to be seized are firearms or ammunition that are in the custody or control of, or is owned or possessed by, a person who is the subject of a gun violence restraining order.
- SB 717 (DeSaulnier), Chapter 317, Statutes of 2013, authorized the issuance of a search warrant to allow a blood draw to be taken from a person in a reasonable, medically approved manner as evidence that the person has violated specified provisions relating to driving under the influence, and the person has refused a peace officer's request to submit to, or failed to complete a blood test.
- AB 539 (Levine), Chapter 118, Statutes of 2015, authorizes the issuance of a search warrant to compel a blood draw from a person where it constitutes evidence that tends to show a violation of operating a boat while under the influence of alcohol or drugs.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association (Sponsor)
California State Sheriffs’ Association
San Diego County District Attorney
Opposition
California Attorneys for Criminal Justice
California Public Defender’s Association
Analysis Prepared by:
Bill Author
Bill Co-Author(s):