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AB-388 Criminal procedure: search warrants: tracking devices.(2011-2012)

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CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 388


Introduced  by  Assembly Member Roger Hernández

February 14, 2011


An act to amend Section 1534 of the Penal Code, relating to criminal procedure.


LEGISLATIVE COUNSEL'S DIGEST


AB 388, as introduced, Roger Hernández. Criminal procedure: search warrants: tracking devices.
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. Existing law provides that a search warrant shall be executed and returned within 10 days after date of issuance.
This bill would establish rules regarding tracking device search warrants. The bill would provide that the length of time that a tracking device may be used shall not exceed 45 days, except as specified. The bill would provide that an officer executing a tracking device search warrant shall not be required to knock and announce his or her presence before executing the warrant. The bill would provide that no later than 10 calendar days after the use of the tracking device has ended, the officer who executed the tracking device warrant shall serve a copy of the warrant on the person who was tracked or whose property was tracked. Because this bill would require local law enforcement officials to perform additional duties, it would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1534 of the Penal Code is amended to read:

1534.
 (a) A search warrant shall be executed and returned within 10 days after date of issuance. A warrant executed within the 10-day period shall be deemed to have been timely executed and no further showing of timeliness need be made. After the expiration of 10 days, the warrant, unless executed, is void. The documents and records of the court relating to the warrant need not be open to the public until the execution and return of the warrant or the expiration of the 10-day period after issuance. Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.
(b) (1) A tracking device search warrant shall identify the person or property to be tracked and specify a reasonable length of time, not to exceed 45 days from the date the warrant is issued, that the device may be used. The court may, for good cause, grant one or more extensions for the time that the device may be used, with each extension lasting for a reasonable length of time not to exceed 45 days. The search warrant shall command the officer to execute the warrant by installing a tracking device or serving the warrant on a third-party possessor of the tracking data. The officer shall perform any installation authorized by the warrant during the daytime unless the judge, for good cause, expressly authorizes installation at another time. Execution of the warrant shall be completed no later than 10 days immediately after the date of issuance. A warrant executed within this 10-day period shall be deemed to have been timely executed and no further showing of timeliness need be made. After the expiration of 10 days, the warrant shall be void, unless executed.
(2) An officer executing a tracking device search warrant shall not be required to knock and announce his or her presence before executing the warrant.
(3) No later than 10 calendar days after the use of the tracking device has ended, the officer executing the warrant shall file a return to the warrant.
(4) No later than 10 calendar days after the use of the tracking device has ended, the officer who executed the tracking device warrant shall serve a copy of the warrant on the person who was tracked or whose property was tracked. Upon the request of a government agency, the judge may, for good cause, delay service of a copy of the warrant.
(5) As used in this section, “tracking device” means any electronic or mechanical device that permits the tracking of the movement of a person or object.

(b)

(c) If a duplicate original search warrant has been executed, the peace officer who executed the warrant shall enter the exact time of its execution on its face.

(c)

(d) A search warrant may be made returnable before the issuing magistrate or his court.

SEC. 2.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.