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Thread: Bill to Amend Search Warrant issuance factors introduced in assembly

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    Code:
    Code:
    BILL NUMBER: AB 532	INTRODUCED
    	BILL TEXT
    
    
    INTRODUCED BY   Assembly Member Lieu
    
                            FEBRUARY 25, 2009
    
       An act to amend Section 1524 of the Penal Code, relating to search
    warrants.
    
    
    	LEGISLATIVE COUNSEL'S DIGEST
    
    
       AB 532, as introduced, Lieu. Search warrants: firearms.
       Existing law establishes various grounds for the issuance of a
    search warrant.
       This bill would additionally authorize issuance of a search
    warrant 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 who has been detained or
    apprehended for examination of his or her mental condition, as
    specified. The bill would also authorize issuance of a search warrant
    when the property or things to be seized include a firearm or any
    other deadly weapon at the scene of a domestic violence incident
    involving a threat to human life or a physical assault, as specified.
    
       The bill would also state the intent of the Legislature in
    enacting the measure.
       Vote: majority. Appropriation: no. Fiscal committee: no.
    State-mandated local program: no.
    
    
    THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
    
      SECTION 1.  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 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 the age of 18 years, 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 a domestic violence incident
    involving a threat to human life or a physical assault as provided in
    subdivision (b) of Section 12028.5.  
       (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. 
       (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.
      SEC. 2.  It is the intent of the Legislature in enacting this act
    to address the holding in People v. Sweig (2008) 167 Cal.App.4th 1145
    and the court's suggestion that the Legislature "address the
    statutory flaw" highlighted in that case. It is not the intent of the
    Legislature to authorize the seizure of any firearms not owned by,
    or in the possession of, or under the custody or control of, any
    person not subject to the provisions of Section 12028.5 of the Penal
    Code or Section 8102 of the Welfare and Institutions Code.

  2. #2
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    Sounds like it only affects those being investigated for domestic violence and mental health issues. Did I miss something?
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    CA_Libertarian wrote:
    Sounds like it only affects those being investigated for domestic violence and mental health issues. Did I miss something?
    I don't know; What's a mental health issue? A person who open carries?

  4. #4
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    Well, that's a stretch that could be made without this bill passing... I'm not worried about it.
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  5. #5
    Anti-Saldana Freedom Fighter bad_ace's Avatar
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    Not just a person found to have mental issues, but someone undergoing an "examination". That could be done by a person on staff at the station while they get a search warrant for your home or vehicle.

    "a person who has been detained or
    apprehended for examination of his or her mental condition

  6. #6
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    Welfore & Institutions Code 8102 already authorizes the seizure of any firearm owned by a person being examined for mental health.

    Code:
    8102. (a) Whenever a person, who has been detained or apprehended for examination of his or her mental condition or who is a person described in Section 8100 or 8103, is found to own, have in his or her possession or under his or her control, any firearm whatsoever, or any other deadly weapon, the firearm or other deadly weapon shall be confiscated by any law enforcement agency or peace officer, who shall retain custody of the firearm or other deadly weapon.
    This bill does not appear to amend the circumstances under which weapons can be seized.

    Maybe I'm still missing something...
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    Too fuzzy on the mental health part.

    I'd have to read the referenced domestic violence statute.

    Where's the part that limits how long the weapon may be retained without further due process? Where's the part that states when and under what conditions the weapon must be returned to the owner?
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    CA_Libertarian wrote:
    Welfore & Institutions Code 8102 already authorizes the seizure of any firearm owned by a person being examined for mental health.

    Code:
    8102. (a) Whenever a person, who has been detained or apprehended for examination of his or her mental condition or who is a person described in Section 8100 or 8103, is found to own, have in his or her possession or under his or her control, any firearm whatsoever, or any other deadly weapon, the firearm or other deadly weapon shall be confiscated by any law enforcement agency or peace officer, who shall retain custody of the firearm or other deadly weapon.
    This bill does not appear to amend the circumstances under which weapons can be seized.

    Maybe I'm still missing something...
    I don't see anywhere here that it specifically gives rise to a search warrant. It says if it is "found" that

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    AyatollahGondola wrote:
    CA_Libertarian wrote:
    Welfore & Institutions Code 8102 already authorizes the seizure of any firearm owned by a person being examined for mental health.

    Code:
    8102. (a) Whenever a person, who has been detained or apprehended for examination of his or her mental condition or who is a person described in Section 8100 or 8103, is found to own, have in his or her possession or under his or her control, any firearm whatsoever, or any other deadly weapon, the firearm or other deadly weapon shall be confiscated by any law enforcement agency or peace officer, who shall retain custody of the firearm or other deadly weapon.
    This bill does not appear to amend the circumstances under which weapons can be seized.

    Maybe I'm still missing something...
    I don't see anywhere here that it specifically gives rise to a search warrant. It says if it is "found" that
    Exactly. That's what makes this look more like a procedural change.

    Existing law: While investigating domestic violence or mental health, if the cops find out you own a gun or have one in your possession, they can take it away from you.

    New law: Clarifies that existing law is grounds to issue a search warrant in order to execute the seizure of dangerous weapons.

    That's how it reads to me... but IANAL.
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    CA_Libertarian wrote:
    Well, that's a stretch that could be made without this bill passing... I'm not worried about it.
    Funny, I was told by a local PD that he would arrest me, even knowing that OC is legal, and knowing who I was (just because he is an ANTI). He said I wouldn't want to go through going to court to get my pistol back and having the judge have me evaluated because I OC and nobody does that around here.

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    MrSigmaDot40 wrote:
    CA_Libertarian wrote:
    Well, that's a stretch that could be made without this bill passing... I'm not worried about it.
    Funny, I was told by a local PD that he would arrest me, even knowing that OC is legal, and knowing who I was (just because he is an ANTI). He said I wouldn't want to go through going to court to get my pistol back and having the judge have me evaluated because I OC and nobody does that around here.
    That's the old "you can beat the rap, but you can't beat the ride" tactic. I've been told that as well. Not saying they used the mental evaluation threat, but certainly the "we'll have your gun; you'll see how hard it is to get it back".



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    MrSigmaDot40 wrote:
    CA_Libertarian wrote:
    Well, that's a stretch that could be made without this bill passing... I'm not worried about it.
    Funny, I was told by a local PD that he would arrest me, even knowing that OC is legal, and knowing who I was (just because he is an ANTI). He said I wouldn't want to go through going to court to get my pistol back and having the judge have me evaluated because I OC and nobody does that around here.
    That's the sort of thing you need to report and have put in his file. Then, if he does it, you got a great federal case. Guaranteed he would be unemployed, the department would be embarrassed, and you'd be six or seven digits richer.

    We do have recourse against the Gestapo.
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    AyatollahGondola wrote:
    BILL NUMBER: AB 532 INTRODUCED
    BILL TEXT


    INTRODUCED BY Assembly Member Lieu

    FEBRUARY 25, 2009

    An act to amend Section 1524 of the Penal Code, relating to search
    warrants.


    LEGISLATIVE COUNSEL'S DIGEST


    AB 532, as introduced, Lieu. Search warrants: firearms.
    Existing law establishes various grounds for the issuance of a
    search warrant.
    This bill would additionally authorize issuance of a search
    warrant 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 who has been detained or
    apprehended for examination of his or her mental condition, as
    specified. The bill would also authorize issuance of a search warrant
    when the property or things to be seized include a firearm or any
    other deadly weapon at the scene of a domestic violence incident
    involving a threat to human life or a physical assault, as specified.

    The bill would also state the intent of the Legislature in
    enacting the measure.
    Vote: majority. Appropriation: no. Fiscal committee: no.
    State-mandated local program: no.


    THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

    SECTION 1. Section 1524 SNIP...

    (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.
    (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.
    ...SNIP

    [quote]My issue with this proposed statute is this...
    According to the above portion let us assume that my brother has purchased a firearm and gives this firearm to me. Later, he is charged with DV. The police somehow find out about this gun that he has previously given to me after he bought it. Now the cops come and using a search warrant seize MY PROPERTY (the gun) and I must now PROVE in court that the gun is mine... NOT MY BROTHERs.


    That could be almost as big a loop hole as the feds are using with the INTERSTATE COMMERCE CLAUSE.
    RIGHTS don't exist without RESPONSIBILITY!
    If one is not willing to stand for his rights, he doesn't have any Rights.
    I will strive to stand for the rights of ANY person, even those folks with whom I disagree!
    As said by SVG--- "I am not anti-COP, I am PRO-Citizen" and I'll add, PRO-Constitution.
    If the above makes me a RADICAL or EXTREME--- So be it!

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    MrSigmaDot40 wrote:
    CA_Libertarian wrote:
    Well, that's a stretch that could be made without this bill passing... I'm not worried about it.
    Funny, I was told by a local PD that he would arrest me, even knowing that OC is legal, and knowing who I was (just because he is an ANTI). He said I wouldn't want to go through going to court to get my pistol back and having the judge have me evaluated because I OC and nobody does that around here.
    Fighting for a gun I care about would be a huge deal for me, fighting for one I do not really care too much about doesn't bother me as much, I would still fight tooth and nail, but these are the reasons why I just bought a $150 hi-point 9mm compact. Its not going to leave me heartbroken like my Airweight or my Xd40.

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