Bill Text: CA AB539 | 2015-2016 | Regular Session | Chaptered
Bill Title: Search warrants.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2015-07-16 - Chaptered by Secretary of State - Chapter 118, Statutes of 2015. [AB539 Detail]
Download: California-2015-AB539-Chaptered.html
BILL NUMBER: AB 539 CHAPTERED
BILL TEXT
CHAPTER 118
FILED WITH SECRETARY OF STATE JULY 16, 2015
APPROVED BY GOVERNOR JULY 16, 2015
PASSED THE SENATE JUNE 25, 2015
PASSED THE ASSEMBLY JUNE 29, 2015
AMENDED IN SENATE JUNE 23, 2015
INTRODUCED BY Assembly Member Levine
FEBRUARY 23, 2015
An act to amend Section 1524 of the Penal Code, relating to search
warrants.
LEGISLATIVE COUNSEL'S DIGEST
AB 539, Levine. Search warrants.
Existing law provides that a search warrant may only be issued
upon probable cause, supported by affidavit, naming or describing the
person to be searched or searched for, and particularly describing
the property, thing, or things and the place to be searched. Existing
law also states the grounds upon which a search warrant may be
issued, including, among other grounds, when a sample of the blood of
a person constitutes evidence that tends to show a violation of
specified laws prohibiting driving a vehicle while under the
influence of alcohol or drugs, 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, as specified, and the sample will
be drawn from the person in a reasonable, medically approved manner.
Existing law prohibits a person from operating a vessel or
manipulating water skis, an aquaplane, or similar device while under
the influence of drugs or alcohol or when the person is addicted to
drugs, as specified. Existing law defines a "vessel" for purposes of
these provisions to include a watercraft or other artificial
contrivance used or capable of being used as a means of
transportation on water, except as specified.
This bill would authorize the issuance of a search warrant on the
grounds that (1) a sample of the blood of a person constitutes
evidence that tends to show a violation of specified laws
prohibiting, among other crimes, the operation of a vessel, or
manipulating water skis, an aquaplane, or a similar device, while
under the influence of alcohol or drugs, (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, as specified, and (3)
the sample will be drawn from the person in a reasonable, medically
approved manner.
This bill would incorporate changes to Section 1524 of the Penal
Code proposed by both this bill and AB 1104, which would become
operative only if both bills are enacted and become effective on or
before January 1, 2016, and this bill is chaptered last.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1524 of the Penal Code, as amended by Section 1
of Chapter 872 of the Statutes of 2014, is amended to read:
1524. (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 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.
(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
any 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
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 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
any 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 officer's 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 court's 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) (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 officer's 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 court's mandate
to determine the propriety of the issuance of a search warrant on a
case-by-case basis.
(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 any
motions or present any 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. Any 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 attorney's
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
any 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.
SEC. 1.5. Section 1524 of the Penal Code is amended to read:
1524. (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 officer's 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 court's 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) 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.
(16) (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 officer's 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 court's mandate
to determine the propriety of the issuance of a search warrant on a
case-by-case basis.
(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 attorney's
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.
SEC. 2. Section 1.5 of this bill incorporates amendments to
Section 1524 of the Penal Code proposed by both this bill and
Assembly Bill 1104. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2016, (2)
each bill amends Section 1524 of the Penal Code, and (3) this bill is
enacted after Assembly Bill 1104, in which case Section 1 of this
bill shall not become operative.
