Chapter 35: Search Warrant Special Procedures

[1] CAL: P v. Tousant (9C 2021)
64 CA5 804, 912 [15-day delay in obtaining warrant to search
cellphone was not unreasonable]. OTHER:
US v. Pratt (4C 2019) 915 F3 266, 272 [a one-month delay to
determine where to seek a warrant was unreasonable].
BUT ALSO SEE: US v. Fulton (5C 2019) 914 F3 390, 397
[officers need not make the warrant application an “immediate
priority,” especially if the owner has not requested its return

[2] OTHER: US v. Burris (8C 2022)
22 F4 781, 785 [“Because the phones had evidentiary value
independent of the data on the phones, the eight-month seizure of
the devices before they were searched was not unreasonable.”].

[3] CAL: Pen. Code§ 1524.3(g).

[4] CAL: Pen. Code§ 1546.1(d)(1).

[5] CAL: Pen. Code§ 1546.1(d)(1).

[6] QUOTES FROM: Pen. Code§
1546.1(d)(2); Pen. Code§ 1524.3(c).

[7] CAL: Pen. Code§ 1546.1(d)(3).

[8] CAL: Pen. Code§ 1524.3(d)(1).

[9] CAL: Pen. Code§ 1546.2(a).

[10] CAL: Pen. Code§ 1546.2 (b).

[11] CAL: Pen. Code§ 1546.2
(b)(2).

[12] CAL: Pen. Code§§ 1546.1(h),
1546.1(c)(11), 1546.2.

[13] CAL: Pen. Code§ 1546.1(h).

[14] CAL: Pen. Code§ 1546.2 (c).

[15] CAL: Pen. Code§ 1546.2 (c).

[16] USSC: Burger King Corp.
v. Rudzewicz (1985) 471 US 462, 476 [when the
out-of-state defendant “manifestly has availed himself of the
privilege of conducting business [in the forum state], and because
his activities are shielded by the benefits and protections of the
forum’s laws it is presumptively not unreasonable to require him
to submit to the burdens of litigation in that forum as well”].
CAL: Code Civ. Proc.§ 410.10 [“A court of this
state may exercise jurisdiction on any basis not inconsistent with
the Constitution of this state or of the US.”].

[17] CAL: Pen. Code§ 1524.2(a)(6);
Corporations Code§ 2110. OTHER: 18 USC§ 2703(g)
[presence of officer not required in executing search warrant
under this chapter].

[18] CAL: Pen. Code§ 1524.2(b)(1).

[19] CAL: Pen. Code§ 1524.2(b)(2).

[20] CAL: Pen. Code§ 1524.3(f).

[21] CAL: Pen. Code§ 1546.1(e)(1).

[22] CAL: Pen. Code§ 1546.1(e)(2).

[23] USSC: Steagald v.
US (1981) 451 US 204. CAL: Pen. Code§
1524(a)(6); P v. Dyke (1990) 224 CA3 648, 658.
9th CIR: Watts v.
County of Sacramento (9C 2001) 256 F3 886, 889 [“If the
suspect named in the arrest warrant is a guest of the third party,
then, absent exigent circumstances, the police must obtain a
search warrant”]; US v. Litteral (9C 1990)
910 F2 547, 553 [“Thus, under Steagald, if the suspect is
just a guest of the third party, then the police must obtain a
search warrant for the third party’s dwelling”].

[24] USSC: Steagald v.
US (1981) 451 US 204, 221-22.

[25] USSC: Steagald v.
US (1981) 451 US 204, 221, fn.14 [“in most situations the
police may avoid altogether the need to obtain a search warrant
simply by waiting for a suspect to leave the third party’s home”].

[26] CAL: Pen. Code§ 1546.1(c)(3).
NOTE: The warrant may authorize the installation and
monitoring of “any electronic or mechanical device that permits
the tracking of the movement of a person or object.” Pen.
Code§ 1534(b)(6).

[27] CAL: Pen. Code§ 1524(a)(12).

[28] CAL: Pen. Code§ 1534(b)(1).

[29] CAL: Pen. Code§ 1534(b)(1).

[30] CAL: Pen. Code§§ 1534(b)(1);
1534(b)(7).

[31] CAL: Pen. Code§ 1534(b)(1).

[32] CAL: Pen. Code§ 1534(b)(1).

[33] CAL: Pen. Code§ 1534(b)(3).

[34] CAL: Pen. Code§
1534(b)(4)(A).

[35] CAL: Pen. Code§
1534(b)(4)(B).

[36] CAL: Pen. Code§§ 1534(b)(4);
1546.2(a).

[37] CAL: Pen. Code§ 1533.

[38] CAL: Pen. Code§ 1533;
P v. Watson (1977) 75 CA3 592, 598 [“the
affidavit furnished the magistrate must set forth specific facts
which show a necessity for [night] service”]; P v.
McCarter (1981) 117 CA3 894, 906-907 [“If an affidavit,
read in a common sense manner and as a whole, reasonably supports
the inference that the interests of justice are best served by the
authorization of nighttime service, provision for such service in
a warrant is proper.”].

[39] QUOTE FROM: P v.
Kimble (1988) 44 C3 480, 494. CAL: P
v. Flores (1979) 100 CA3 221, 234 [“the test to be
applied is whether the affidavit read as a whole in a common sense
manner reasonably supports a finding that such service will best
serve the interests of justice”]; P v.
Lowery (1983) 145 CA3 902, 909-10 [“This is not a question
of convenience to the police, but acknowledges the interest of the
entire community in efficient use of police personnel.”];
P v. McCarter (1981) 117 CA3 894, 906-907
[“If an affidavit, read in a common sense manner and as a whole,
reasonably supports the inference that the interests of justice
are best served by the authorization of nighttime service,
provision for such service in a warrant is proper.”].

[40] CAL: Pen. Code§ 1533;
Tuttle v. Superior Court (1981) 120 CA3 320,
329 [“allegations in an affidavit with respect to safety of
officers must inform the magistrate of specific facts showing why
nighttime service would lessen a possibility of violent
confrontation, e.g., that the particular defendant is prepared to
use deadly force against officers executing the warrant”];
P v. Kimble (1988) 44 C3 480, 495 [“in view
of the nature of the homicides that were under investigation, the
magistrate could reasonably conclude that there was an
exceptionally compelling interest in permitting the police to
expedite their investigation”]; P v.
McCarter (1981) 117 CA3 894, 907 [“one or more racially
motivated, senseless murders had occurred the previous night and
that another was contemplated”]. COMPARE: Rodriguez
v. Superior Court (1988) 199 CA3 1453, 1468 [not
sufficient: “any time you got people dealing in drugs there’s
always a danger of being shot or hurt”]; Tuttle v.
Superior Court (1981) 120 CA3 320, 329 [“there are no facts
within the affidavit which could reasonably allow a magistrate to
infer that… a violent confrontation lessened by nighttime
service”].

[41] CAL: P v.
Kimble (1988) 44 C3 480, 495 [“the magistrate could
reasonably infer that the persons who had stolen the property
would attempt to dispose of it as quickly as possible”].

[42] EXAMPLES: The following are
examples of unsupported allegations and generalizations deemed
inadequate for good cause:

•Conclusory statement that night service was necessary “for
fear the property sought will be disposed of or become nonexistent
through sale or transfer to other persons.” P v.
Lopez (1985) 173 CA3 125, 136. Also see P v.
Watson (1977) 75 CA3 592, 597 [“the magistrate’s exercise
of discretion cannot be based solely on the nature of the
contraband to be seized or the type of crime involved.”];
P v. Flores (1979) 100 CA3 221, 234 [“mere
assertion of suspected unlawful drug activities in the place to be
searched is insufficient to justify night service”]; P
v. Mardian (1975) 47 CA3 16, 34 [“an affiant’s
averment that in his experience (generally) particular types of
contraband are easily disposed of does not, in itself, constitute
a sufficient showing for the necessity of a nighttime search”].

• Generalized statement that the stolen property being sought
was “primarily perishable items and easily disposed of.”
In re Donald R. (1978) 85 CA3 23, 25-26.

• Generalized statement that “drug distributors often utilize
the cover of darkness to conceal their transportation and handling
of contraband.” Tuttle v.
Superior Court (1981) 120 CA3 320, 328.

[43] EXAMPLES: Good cause for night
service based on destruction of evidence:

• Sales of drugs or other contraband were occurring at night
at the place to be searched. P v.
Watson (1977) 75 CA3 592, 598; Nunes v.
Superior Court (1980) 100 CA3 915, 938; P v.
Grant (1969) 1 CA3 563, 567-68; P v.
Govea (1965) 235 CA2 285, 299.

• Suspect was planning to vacate the premises early the next
morning. P v. Mardian (1975) 47 CA3 16, 35
[the occupants were planning to leave the residence at 6 a.m.].

• Suspect had become aware that his arrest or a search of his
premises was imminent, and it was therefore reasonably likely that
he would immediately attempt to move or destroy the evidence.
P v. Siripongs (1988) 45 C3 548, 569-70
[following his arrest, the arrestee made a phone call from jail
(speaking in Thai) to the residence in which stolen property was
stored]; P v. Cletcher (1982) 132 CA3 878,
883; P v. Zepeda (1980) 102 CA3 1, 6;
P v. Egan (1983) 141 CA3 798, 806; P
v. Swan (1986) 187 CA3 1010, 1019; Galena
v. Municipal Court (1965) 237 CA2 581, 592 [“It is
common knowledge that those in the possession of contraband or
stolen goods make every effort to effectuate its immediate
disposition when they learn that persons connected with it have
been apprehended by the authorities.”].

• Stolen food, liquor, and cigarettes were consumed at a
party in the residence the night before the warrant was executed.
In re Donald R. (1978) 85 CA3 23, 26.

•Warrant authorized a search for recently stolen stereo
equipment which, it was reasonable to believe, would be disposed
of as quickly as possible. P v. Kimble (1988)
44 C3 480, 494-95; P v. Lopez (1985) 173 CA3
125, 138.

• One of the suspects carried drugs from the residence in the
afternoon, there was probable cause to believe more drugs were on
the premises, and the suspects would have an opportunity to remove
more drugs at 6 a.m. P v. Mardian (1975) 47
CA3 16, 35.

• The suspect was released on bail in the early evening, the
evidence in his house was “small in size and easily disposed of,”
and the only way to keep him from destroying it would have been to
assign “police resources in an all night vigil when they could be
deployed elsewhere.” P v. Lowery (1983) 145
CA3 902, 909-10.

[44] CAL: Pen. Code§ 1533.

[45] QUOTE FROM: Richards
v. Wisconsin (1997) 520 US 385, 399, fn.7 [“The
practice of allowing magistrates to issue no-knock warrants seems
entirely reasonable when sufficient cause to do so can be
demonstrated ahead of time.”]. USSC: US v.
Banks (2003) 540 US 31, 36 [“When a warrant applicant gives
reasonable grounds to expect futility or to suspect that one or
another such exigency already exists or will arise instantly upon
knocking, a magistrate judge is acting with the Constitution to
authorize a ‘no-knock’ entry.”]; NOTE: If a no-knock entry
is authorized, officers may, if reasonably necessary, make a
forcible entry. US v. Ramirez (1998) 523 US
65, 71.

[46] USSC: Richards v.
Wisconsin (1997) 520 US 385, 394; US v.
Banks (2003) 540 US 31, 37, fn.3 [“The standard for a
no-knock entry stated in Richards applies on reasonable
suspicion of exigency or futility.”].

[47] OTHER: US v.
Spry (7C 1999) 190 F3 829, 833.

[48] USSC: US v.
Banks (2003) 540 US 31, 36-37 [“And even when executing a
warrant silent about [no-knock authorization], if circumstances
support a reasonable suspicion of exigency when the officers
arrive at the door, they may go straight in.”]; Richards
v. Wisconsin (1997) 520 US 385, 395-96, fn.7 [“a
magistrate’s decision not to authorize no-knock entry should not
be interpreted to remove the officers’ authority to exercise
independent judgment concerning the wisdom of a no-knock entry at
the time the warrant is being executed”].

[49] USSC: US v.
Grubbs (2006) 547 US 90, 96 [grounds for an anticipatory
warrant will exist if “it is now probable that a fugitive will be
on the described premises when the warrant is executed,” edited].
CAL: P v. Sousa (1993) 18 CA4 549, 559
[“an anticipatory warrant may issue upon a clear showing that
evidence of a crime will be found at a particular location at a
specified time in the future”]. 9th CIR:
US v. Vesikuru (9C 2002) 314 F3 1116, 1119 [“The execution
of an anticipatory search warrant is conditioned upon the
occurrence of a triggering event. If the triggering event does not
occur, probable cause to search is lacking.”]. OTHER:
US v. Penney (6C 2009) 576 F3 297, 310 [“An
anticipatory search warrant is a search warrant that by its terms
takes effect not upon issuance but at a specified future time.”];
US v. Andrews (4C 2009) 577 F3 231, 237 [“most anticipatory
warrants subject their execution to some condition precedent other
than the mere passage of time—a so-called ‘triggering
condition’—which, when satisfied, becomes the final piece of
evidence needed to establish probable cause”]; US
v. Miggins (6C 2002) 302 F3 384, 395 [“An
anticipatory search warrant is a search warrant that by its terms
takes effect not upon issuance but at a specified future time.”].

[50] USSC: US v. Grubbs (2006)
547 US 90, 97 [delivery by the Postal Service]. CAL:
P v. Sousa (1993) 18 CA4 549, 557-58.
9th CIR: US v. Vesikuru (9C 2002) 314 F3 1116, 1122
[delivery by “police agent posing as a commercial package
carrier”]; US v. Goff (9C 1982) 681 F2 1238
[anticipatory warrant to search drug courier when he arrives at
the airport]; US v. Ruddell (9C 1995) 71 F3 331, 333
[delivery by undercover postal inspector]. OTHER:
US v. Penney (6C 2009) 576 F3 297, 311 [“the
triggering condition was met when Penney met with [one of the
other buyers] and the CI, and the CI signaled to the police that
the funds to be used for the drug purchase were present.”];
US v. Becerra (2C 1996) 97 F3 669, 671 [“the
fact that a package containing cocaine is sent to a particular
address and it, or a substitute, is accepted at that address,
establishes probable cause to search those premises”]; US
v. Rowland (10C 1998) 145 F3 1194, 1201 [“Probable
cause for anticipatory warrants is contingent on the occurrence of
certain expected or ‘triggering’ events, typically the future
delivery, sale, or purchase of contraband.”];
US v. Brack (7C 1999) 188 F3 748, 757 [the triggering event
was the delivery of drugs to the suspect’s motel room;
US v. Hugoboom (10C 1997) 112 F3 1081, 1087 [delivery by
undercover postal inspector]; US v. Dornhofer (4C 1988) 859
F2 1195, 1198 [delivery by mail]; US v. Loy (3C 1999) 191
F3 360, 365 [“When the warrant application indicates that there
will be a controlled delivery of contraband to the place to be
searched, the nexus requirement of probable cause is usually
satisfied.”]; US v. Leidner (7C 1996) 99 F3 1423, 1429
[“the informant would personally deliver the marijuana to
Leidner’s residence, under the direction and supervision of the
government”].

[51] CAL: P v.
Sousa (1993) 18 CA4 549, 559-60. 9th CIR: US
v. Goff (9C 1982) 681 F2 1238,1240 [anticipatory
warrant to search passenger in Seattle who was en route on
commercial flight from Miami]. OTHER:
US v. Dennis (7C 1997) 115 F3 524, 528-29.

[52] OTHER: US v. Caraher (2C
2020) 973 F3 57,63 [“The triggering condition would occur when an
individual entered a username and password to log into the webpage
located at the URL listed in Attachment A”].

[53] OTHER: US v. Perkins (6C
2018) 887 F3 272, 277 [“law enforcement must abide by at least a
common sense reading of the triggering condition”].

[54] QUOTE FROM: P v.
Sousa (1993) 18 CA4 549, 557-58 [“Because anticipatory
warrants enable the police to reduce the time that is consumed in
obtaining search warrants, their availability encourages police
officers to obtain a warrant in advance rather than forcing them
to go to the scene without a warrant and there make a decision at
the risk of later being second-guessed by the judiciary.”].
OTHER: US v. Garcia (2C 1989) 882 F2
699, 703 [courts approve of anticipatory warrants because the
alternative is often making a warrantless entry based on exigent
circumstances]; US v. Donnell (8C 2013) 726 F3 1054;
US v. Ricciardelli (1C 1993) 998 F2 8, 10
[anticipatory warrants protect “privacy rights by requiring
advance judicial approval of a planned search while simultaneously
satisfying legitimate law enforcement needs”].

[55] QUOTE FROM: US v.
Penney (6C 2009) 576 F3 297, 310; US v. Garcia (2C
1989) 882 F2 699, 703-704. CAL: P v.
Sousa (1993) 18 CA4 549, 561. 9th CIR:
US v. Hotal (9C 1998) 143 F3 1223, 1226 [“the warrant
itself must state the conditions precedent to its execution”].
OTHER: US v. Perkins (6C 2018) 887 F3 272, 277 [“law
enforcement must abide by at least a common sense reading of the
triggering condition”]; US v. Penney (6C
2009) 576 F3 297, 310 [“an anticipatory search warrant and its
supporting affidavit are not to be read hypertechnically, but in a
commonsense fashion”]; US v. Brack (7C 1999)
188 F3 748, 757 [“The purpose of the requirement that warrants
conditioned on future events be narrowly drawn is to avoid
premature execution as a result of manipulation or
misunderstanding by the police.”]. NOTE: Some warrants may
contain unnecessary boilerplate language saying that the search
must be conducted “forthwith.” Regardless, officers may delay
execution until the triggering event occurs. See US
v. Ruddell (9C 1995) 71 F3 331.

[56] USSC: US v.
Grubbs (2006) 547 US 90, 98 [“the Fourth Amendment does not
require that the triggering condition for an anticipatory search
warrant be set forth in the warrant itself”].

[57] USSC: US v.
Grubbs (2006) 547 US 90, 96 [there must be “probable cause
to believe the triggering condition will occur”]. CAL:
P v. Sousa (1993) 18 CA4 549, 559-60 [there
was a “clear showing” that the triggering event would occur].
OTHER: US v. Elst (7C 2009) 579 F3
740, 744 [there must be “probable cause to believe that the
triggering condition will occur”]; US v.
Andrews (4C 2009) 577 F3 231, 237 [there must be “probable
cause to believe the triggering condition will occur”]; US
v. Rowland (10C 1998) 145 F3 1194, 1201 [“the
magistrate must take into account the likelihood that the
triggering events will occur on schedule and as predicted”];
US v. Loy (3C 1999) 191 F3 360, 365 [probable
cause that the contraband will arrive at the place to be searched
must exist “at the time [the warrant] is issued”]; US
v. Garcia (2C 1989) 882 F2 699, 703 [“affidavits
supporting the application for an anticipatory warrant must show,
not only that the agent believes a delivery of contraband is going
to occur, but also how he has obtained this belief, how reliable
his sources are, and what part government agents will play in the
delivery”].

[58] CAL: Alvidres v.
Superior Court (1970) 12 CA3 575, 581 [“This time period,
of course, would be subject to the 10-day limitation which is set
out in Pen. Code§ 1534.”].

[59]
NOTE: The questionable validity of “sure course”: The “sure
course” requirement is contrary to the Supreme Court’s consistent
rulings that only probable cause is required; i.e., that grounds
for an anticipatory warrant will exist if “it is now probable that
contraband, evidence of a crime, or a fugitive will be on the
described premises when the warrant is executed.” US
v. Grubbs (2006) 547 US 90, 96. It is therefore
likely that, because the “sure and irreversible course”
requirement establishes a standard higher than probable cause, it
is a nullity. It should also be noted that the “sure course” rule
was announced by the First Circuit in US v.
Ricciardelli (1C 1993) 998 F2 8. But just one year later,
the First Circuit explained that, while Ricciardelli might
be read as instituting a higher standard than probable cause, that
was not the court’s intention. Said the court, “But we know of no
justification for a stricter standard in respect to specificity of
time [when probable cause can be said to exist] than in respect to
the other two (constitutionally referenced) search parameters.
Ricciardelli, while stating that contraband must be on a
‘sure and irreversible course’ to the place to be searched, did
not purport to set forth any special new rule requiring more
specificity where time, rather than, say, place, is at issue.”
US v. Gendron (1C 1994) 18 F3 955, 966.
ALSO SEE: US v. Leidner (7C 1996) 99 F3 1423, 1428
[court notes it appears that the “sure course” rule applies only
when “there is recognized doubt that the contraband will
ultimately be delivered to the defendant’s residence”];
US v. Penney (6C 2009) 576 F3 297, 311-12 [“sure course”
not applicable because “[the contraband involved in the drug deal
arranged by the CI and Penney was not the only evidence connecting
Penney’s residence to criminal activity”]; US v. Dennis (7C
1997) 115 F3 524, 531 [“simply discovering the package in the mail
stream and placing it back into the mail stream to effect a
controlled delivery should satisfy the sure course requirement”];
US v. Hendricks (9C 1984) 743 F2 653, 655 [ “sure course”
requirement would be satisfied if the package was “in the mail
addressed to the home address”]; US v. Lawson (6C 1993) 999
F2 985, 988 [court notes that “a package containing illegal
substances is on a ‘sure course’ to its destination (as in the
mail”].

[60] USSC: US v.
Grubbs (2006) 547 US 90, 94 [“It must be true [that] if the
triggering condition occurs there is a fair probability that
contraband or evidence of a crime will be found in a particular
place”]. CAL P v. Hernandez (1974) 43
CA3 581, 589, fn.2 [“what constitutionally matters is probable
cause at the time of execution, rather than at the time of
issuance”]. OTHER: US v. Elst (7C 2009) 579 F3 740,
744 [there must be probable cause “that contraband or evidence of
a crime will be found in the place to be searched if the
triggering condition occurs”]; US v.
Dennis (7C 1997) 115 F3 524, 528 [“at the time a court
issues an anticipatory warrant, probable cause exists to believe
that contraband will be located at the premises to be searched
after certain events transpire”]; US v.
Loy (3C 1999) 191 F3 360, 365 [there must be “probable
cause to believe the contraband will be there when the warrant is
executed,” edited].

[61] CAL: Pen. Code§ 1534;
Oziel v. Superior Court (1990) 223 CA3 1284,
1295.

[62] CAL: P v.
Hobbs (1994) 7 C4 948, 962; P v.
Heslington (2011) 195 CA4 947, 956 [“all or any part of a
search warrant affidavit may be sealed if necessary to implement
the privilege and protect the identity of a confidential
informant”].

[63] CAL: P v.
Hobbs (1994) 7 C4 948, 959.

[64] CAL: P v. Sedillo (2015)
235 CA4 1037, 1054[the sealing procedure applies “not only to
search warrants, but also to wiretap authorization orders”].

[65] CAL: Evid. Code§ 1041;
P v. Galland (2008) 45 C4 354, 364 [“a court
may order any identifying details to be redacted or a court may
adopt the procedure of sealing portions of a search warrant
affidavit that relate facts or information which, if disclosed in
the public portion of the affidavit, will reveal or tend to reveal
a confidential informant’s identity”]; P v.
Hobbs (1994) 7 C4 948, 962 [“if disclosure of the contents
of the informant’s statement would tend to disclose the identity
of the informer, the communication itself should come within the
privilege”].

[66] CAL: Evid. Code§ 1040.

[67] QUOTE FROM: Evid. Code§
1040(a). CAL: County of Orange v.
Superior Court (Feilong Wu) (2000) 79 CA4 759, 765 [“the
contents of police investigative files sought in civil discovery
must remain confidential so long as the need for confidentiality
outweighs the benefits of disclosure in any particular case”];
PSC Geothermal Services Co.
v. Superior Court (1994) 25 CA4 1697, 1714 [“official
information” privilege covers “information obtained by a public
employee and which, if disclosed, is against the public
interest.”]; In re Sergio M. (1993) 13 CA4 809;
P v. Walker (1991) 230 CA3 230; Torres
v. Superior Court (2000) 80 CA4 867, 872-73 [a
person’s name may constitute official information; e.g., name of
undercover officer]. NOTE:
Vehicle identification numbers: “All vehicles have a VIN.
The VIN is a metal plate that is usually attached to the dashboard
on the driver’s side of the vehicle. A hidden or secret matching
VIN is usually located in six or seven places, such as the frame,
engine, or body of the vehicle. Hidden VINs are used by law
enforcement to identity a vehicle when the public VIN has been
altered or removed.” P v. Joiner (2000) 84 CA4 946,
954.

[68] CAL: P v.
Hobbs (1994) 7 C4 948, 971;
PSC Geothermal Services Co. v. Superior Court (1994) 25 CA4
1697, 1715 [“It is the People’s task to tailor their investigation
as necessary to minimize or avoid [disclosure or sanctions].”].

[69] CAL: P v.
Hobbs (1994) 7 C4 948, 962-63 [“the courts have sanctioned
a procedure whereby those portions of a search warrant affidavit
which, if disclosed to the defense, would effectively reveal the
identity of an informant, are redacted, and the resulting ‘edited’
affidavit furnished to the defendant”].

[70] CAL: P v.
Galland (2008) 45 C4 354, 368 [sealed search warrant
affidavits “should ordinarily be part of the court record that is
maintained at the court”].

[71] NOTE: To prove that, because of
lax court security, the warrant and affidavit should be retained
by officers or prosecutors, the affidavit must establish the
following:

(1) Inadequate court security: Security procedures at the
court clerk’s office “are inadequate to protect the affidavit
against disclosure to unauthorized persons.”

(2) Adequate police security: Security procedures at the
law enforcement agency “are sufficient to protect the affidavit
against disclosure by unauthorized persons.”

(3) Retention of documents: The law enforcement agency has
established procedures “to ensure that the affidavit is retained
for 10 years after final disposition of the noncapital case,
permanently in a capital case, or until further order of the
court.”

(4) Documents described: The judge must make “a sufficient
record of the documents that were reviewed, including the sealed
materials, so as to permit identification of the original sealed
affidavit in future proceedings or to permit reconstruction of the
affidavit if necessary”; e.g., the judge might accomplish this by
“describing the sealed document’s general physical characteristics
(i.e., the number of pages or paragraphs), marking each page of
the affidavit with the magistrate’s initials, directing the People
to file a redacted version of the sealed affidavit.” P
v. Galland (2008) 45 C4 354, 369. NOTE:
Technically, there is a fifth requirement: there must be a showing
“that disclosure of the information would impair further
investigation of criminal conduct or endanger the safety of the
confidential informant or the informant’s family.” But this
requirement appears to be redundant, as an affidavit could not be
sealed in the first place unless it was met.

[72] 9th CIR: US v.
Custer Battlefield Museum (9C 2011) 658 F3 1188, 1195

[73] OTHER: US v.
Villegas (2C 1990) 899 F2 1324, 1330 [“numerous
coconspirators remained to be identified”].

[74] OTHER: 18 USCA§§ 2705,
3103a(b)(3). NOTE: The main objection to covert warrants is
that the people whose homes and offices are searched are not
immediately notified that a search had occurred. The Supreme Court
has described this objection as “frivolous,” pointing out that
instant notification is not a constitutional requirement.
Dalia v. US (1979) 441 US 238, 247-48. Furthermore, because
officers who execute covert warrants do not physically “take”
anything, they may not be technically required to leave a receipt.
See Pen. Code§ 1535 [“When the officer takes property under
the warrant, he must give a receipt for the property taken
(specifying it in detail) to the person from whom it was taken by
him, or in whose possession it was found; or, in the absence of
any person, he must leave it in the place where he found the
property.”‘]. PROSECUTORS NOTE: California’s notice rule,
which begins with the words “When the officer takes property”
could be interpreted as expressly requiring notice “when” the
warrant was executed, or it might be interpreted as applying only
when property is removed. This later interpretation seems more
reasonable, especially in light of the US Supreme Court’s decision
in West Covina v. Perkins (1999) 525 US 234, 240 in which
the Court noted that the “primary” purpose of the notice
requirement is “to give notice that the property has been taken so
the owner can pursue available remedies for its return.” In the
case of a covert search warrant, however, no property is removed
from the premises and there is, therefore, nothing to return.
Furthermore, there seems to be a conflict over whether the notice
requirement is constitutional. In the opinion of the Second
Circuit, it is a statutory requirement. US v. Pangburn (2C
1993) 983 F2 449, 455. According to the Ninth Circuit, it is a
constitutional requirement, but that the giving of notice within
seven days of execution of a covert search warrant satisfies the
Fourth Amendment. US v. Freitas (9C 1986) 800 F2 1451,
1456. In any event, it seems apparent that a violation of
California’s notice requirement (Pen. Code§ 1535) does not
constitute a violation of the Fourth Amendment.
P v. Guillebeau (1980) 107 CA3 531;
P v. Phillips (1958) 163 CA2 541 [disapproved on other
grounds in P v. Butler (1966) 64 C2 842, 845;
P v. Cooks (1983) 141 CA3 224, 292, fn.57;
P v. Head (1994) 30 CA4 954, 958-60.

[75] OTHER: US v.
Villegas (2C 1990) 899 F2 1324, 1337 [“the court should not
allow the officers to dispense with advance or contemporaneous
notice of the search unless they have made a showing of reasonable
necessity for the delay”]. NOTE: The Ninth Circuit has
indicated that a showing of necessity is not a requirement under
the Fourth Amendment. US v. Freitas (9C 1986)
800 F2 1451, 1456. But because the overall reasonableness of the
search would seem to depend on whether the delayed notice was
necessary, a showing of necessity should be made in all cases. See
Wilson v. Arkansas (1995) 514 US 927, 982.

[76] 9th CIR: US v.
Freitas (9C 1986) 800 F2 1451, 1456 [the record “merely
demonstrates that the search and seizure would facilitate the
investigation of Freitas, not that it was necessary”].

[77] EXAMPLE: The following is an
example of special instructions for covert search warrant:
The property described in Exhibit __ shall not be removed from
the premises. An inventory shall be prepared showing the
location of all such property discovered on the premises. Said
property shall be photographed or videotaped to show its
location when discovered. Compliance with the receipt
requirements of Pen. Code§ 1535 is excused until
_________________ unless an extension is granted by this court.
[initial compliance date must not be more than 7 days following
execution of the warrant] Within two days after executing this
warrant, the following shall be filed with this court: (1) the
inventory, and (2) the original or copy of all photographs
and/or videotape recordings made during the execution of this
warrant.

[78] USSC:
Carpenter v. US (2018) __ US __ [138 S.Ct. 2206, 220].
CAL: P v. Meza (2023) __ CA5 __ [2023 WL 2923161]
[“Geofence warrants (sometimes called ‘reverse location searches’)
are official requests by law enforcement authorities to access the
device location data gathered by large tech companies like Google.
The warrants specify a time and geographic area, and require the
companies to turn over information on any devices that were in
that area at that time. While this data is typically anonymized,
it can be used in conjunction with other investigative techniques
to tie devices to specific users—and identify persons of interest
in a criminal investigation.”]. OTHER:
US v. Rhine (DDC 2023) [2023 WL 372044] [“Unlike a warrant
authorizing surveillance of a known suspect, geofencing is a
technique law enforcement has increasingly utilized when the crime
location is known but the identities of suspects is not. At a
basic level, a geofence warrant seeks cell phone location data
stored by third-party companies like Google. The scope of location
data captured by a geofence is limited by geographic and temporal
parameters, so geofence warrants identify the physical area and
the time range in which there is probable cause to believe that
criminal activity occurred,” edited].

[79] CAL: P v. Meza (2023) __
CA5 __ [2023 WL 2923161]

[80] CAL: P v. Meza (2023) __
CA5 __ [2023 WL 2923161] [“At step one, Google was directed to
search location history data for the six designated locations and
times and produce an anonymized list of devices found within the
search areas in the designated timeframes, including the
individual times each device was recorded in the search area
during the applicable time period.”].

[81] CAL: P v. Meza (2023) __
CA5 __ [2023 WL 2923161] [“The failure to sufficiently narrow the
search parameters potentially allowed a location-specific
identification of thousands of individuals—likely a search within
the ambit of the Fourth Amendment— for whom no probable cause
existed. While we recognize it may be impossible to eliminate the
inclusion of all uninvolved individuals in a geofence warrant, it
is the constitutionally imposed duty of the government to
carefully tailor its search parameters to minimize infringement on
the privacy rights of third parties.”].

[82] CAL: P v. Meza (2023) __
CA5 __ [2023 WL 2923161] [“The search area included Thabet’s
entire apartment complex and surrounding buildings despite the
lack of any evidence (or supported inference) that the suspects
left their vehicles, let alone entered the apartment building.
Given the early morning timeframe for the search, the warrant
permitted identification of numerous individuals with no
connection to the murder who were simply still at home. Indeed,
for many of the search locations, the geographic boundaries
incorporated more surface area where the suspects were not
believed to have been present (inside buildings) than area where
they were (adjacent roads and intersections). This overbreadth is
even more pernicious given that individuals (especially those near
the perimeters of the search area) would be included in the
warrant return despite an estimated 32 percent chance they were
actually not within the search parameter at all.”]

[83] CAL: P v.
Fleming (1981) 29 C3 698, 707 [“a magistrate has
jurisdiction to issue an out-of-county warrant when he has
probable cause to believe that the evidence sought relates to a
crime committed within his county and thus pertains to a present
or future prosecution in that county”]; P v.
Easley (1983) 34 C3 858, 869-70.

[84] CAL: Pen. Code§ 1524(j).

[85] CAL: Pen. Code§ 1530 [“A
search warrant may in all cases be served by any of the officers
mentioned in its directions, but by no other person, except in aid
of the officer on his requiring it, he being present and acting in
its execution.”]; Pen. Code§ 830.1(a)(1); P v.
Fleming (1981) 29 C3 698, 704, fn.4; P v.
Emanuel (1978) 87 CA3 205, 210-11; P v.
Galvan (1992) 5 CA4 866, 870-71. ALSO SEE: P v. Cooper (2002) 101 CA4 Supp. 1, 6
[separate grounds for out-of-jurisdiction authority is the
exchange-of-letters; i.e., consent by police chief granting
authority to officers in other [usually nearby] jurisdictions].

[86] CAL: Pen. Code§ 1530 [“A
search warrant may in all cases be served by any of the officers
mentioned in its directions, but by no other person, except in aid
of the officer on his requiring it, he being present and acting in
its execution.”].

[87] USSC: Galpin v.
Page (1873) 18 Wall. 350, 367 [“The tribunals of one State
… cannot extend their process into other States”].

[88] CAL: P v. Kraft (2000) 23
C4 978, 1051

[89]
PROCEDURE TO OBTAIN OUT-OF-STATE WARRANT:

The California officer should do the following:

(1) Write an affidavit establishing probable cause for the search
and sign it under penalty of perjury. (As discussed below, this
affidavit will become an attachment to the affidavit signed by the
out-of-state officer.)

(2) Write an affidavit for the out-of-state officer’s signature in
which the out-of-state officer simply states that he is
incorporating the California officer’s affidavit, and that it was
submitted to him by a California officer; e.g.,
Attached hereto and incorporated by reference is the affidavit
of [name of California officer] who is a law enforcement officer
employed by the [name of California officer’s agency] in the
State of California. I declare under penalty of perjury that the
foregoing is true.
(The reason the out-of-state officer must not sign the affidavit
establishing probable cause is that will have no personal
knowledge of the facts upon which probable cause was based.)

(3) Attach the affidavit establishing probable cause to the
out-of-state officer’s unsigned affidavit.

(4) In a separate document, set forth the following:

(a) Descriptions of the person, place, or thing to be searched.

(b) Descriptions of the evidence to be seized.

(c) A suggested court order pertaining to the disposition of
seized evidence; e.g.,
All evidence seized pursuant to this warrant shall be retained
by [name of California officer] of the [name of California
officer’s agency] in California. Such evidence may thereafter be
transferred to the possession of a court of competent
jurisdiction in California if it is found to be admissible in a
court proceeding.

(5) Email, fax, or mail these documents to the out-of-state
officer.

Upon receipt of these documents, the out-of-state officer will
do the following:

(1) Prepare a search warrant in accordance with local rules and
procedures using the descriptions provided by the California
officer, and incorporating the request that all seized evidence be
transferred to the California officer.

(2)Take the search warrant and his affidavit (to which the
California officer’s affidavit has been attached) to a local
judge.

(3) In the judge’s presence, sign the affidavit in which he swears
that the incorporated and attached affidavit was submitted to him
by a California law enforcement officer.

Execution and disposition: If the judge issues the warrant,
it will be executed by officers in whose jurisdiction the search
will occur. Those officers will then give or send the evidence to
the California authorities.

[90] CAL: Pen. Code§ 1524(c);
Fenwick & West v. Superior Court (1996)
43 CA4 1272, 1279 [“A lawyer’s office may be searched for evidence
of a client’s crime, but special care must be taken to avoid
unnecessary intrusion on attorney-client communications.”];
Gordon v. Superior Court (1997) 55 CA4 1546,
1557 [“Assuming the requisite relationship and confidential
communication, the privilege is absolute and disclosure may not be
ordered”]. ALSO SEE: Evid. Code§ 952 [“As used in this
article, ‘confidential communication between client and lawyer’
means information transmitted between a client and his or her
lawyer in the course of that relationship and in confidence by a
means which, so far as the client is aware, discloses the
information to no third persons other than those who are present
to further the interest of the client in the consultation or those
to whom disclosure is reasonably necessary for the transmission of
the information or the accomplishment of the purpose for which the
lawyer is consulted, and includes a legal opinion formed and the
advice given by the lawyer in the course of that relationship.”];
Evid. Code§ 992 [the physician-patient privilege is
essentially the same as the attorney-client privilege].
NOTE: An attorney’s “work product” is also subject to the
privilege. See P v.
Superior Court (Laff) (2001) 25 C4 703, 719.

[91] CAL: Pen. Code§ 1524(c).

[92] CAL: P v.
Superior Court (Laff) (2001) 25 C4 703, 713 [“Even if the
custodian is suspected of a crime, when privileged materials in
the custodian’s possession are seized pursuant to a search
warrant, he or she still owes a duty to take appropriate steps to
protect the interest of the privilege holders in not disclosing
the materials to law enforcement authorities or others.”];
P v.
Superior Court (Bauman & Rose) (1995) 37 CA4 1757, 1766
[“While the privilege belongs only to the client, the attorney is
professionally obligated to claim [the privilege] on his client’s
behalf whenever the opportunity arises unless he has been
instructed otherwise by the client.”]. ALSO SEE:
Gordon v. Superior Court (1997) 55 CA4 1546,
1559 [“The attorney’s] failure to request a hearing might have
waived his own rights if he had any to assert but his inaction
could not operate as a waiver of privileges held by his client”].

[93] CAL: Pen. Code§ 1524(c)(2);
P v. Superior Court (Laff) (2001) 25 C4703,
713 [“Even if the custodian is suspected of a crime, when
privileged materials in the custodian’s possession are seized
pursuant to a search warrant, he or she still owes a duty to take
appropriate steps to protect the interest of the privilege holders
in not disclosing the materials to law enforcement authorities or
others.”]; P v.
Superior Court (Bauman & Rose) (1995) 37 CA4 1757, 1766
[“While the privilege belongs only to the client, the attorney is
professionally obligated to claim it on his client’s behalf
whenever the opportunity arises unless he has been instructed
otherwise by the client.”]; P v.
Superior Court (Laff) (2001) 25 C4 703, 720 [“the superior
court has an obligation to consider and determine claims that
materials seized pursuant to a search warrant, from attorneys
suspected of criminal activity and before charges are filed, are
protected by the attorney-client privilege or work-product
doctrine and thus should not be inspected by or disclosed to law
enforcement authorities”].

[94] CAL: Pen. Code§ 1524(d).

[95] CAL: Pen. Code§ 1524(d).

[96] CAL: Pen. Code§ 1524(c);
P v. Superior Court (2000) 83 CA4 387, 400;
P v. Superior Court (Bauman and Rose) (1995)
37 CA4 1757, 1765 [“In essence, the special master procedure …
requires (1) that a search of premises owned or controlled by a
nonsuspect privilege holder must be overseen by a special
master”].

[97] CAL: Pen. Code§ 1524(c);
P v. Superior Court (Bauman and Rose) (1995)
37 CA4 1757, 1765 [“any item as to which the privilege holder
asserts the privilege, or gives some other reason precluding
disclosure, must be sealed on the spot; and a hearing must be held
within three days of the service of the warrant, or as
expeditiously as otherwise possible, on the privilege holder’s
assertion of the privilege or any issues which may be raised
pursuant to [Pen. Code] Section 1538.5,” edited]; Gordon
v. Superior Court (1997) 55 CA4 1546, 1560 [“When
records seized from the office of an attorney, physician,
psychotherapist or clergyman are sealed by the special master at
the request of the person whose office is searched, it is the
special master’s obligation to set a hearing in the superior court
within the three days permitted by section 1524, subdivision
(c)(2) and, at the time nondisclosure is requested, it is the
special master’s obligation to give notice of the date, time and
place of that hearing to the person whose office is searched and
to the person executing the warrant. If for any reason the
required notice is not given, the records cannot be unsealed or
returned until notice is given and a hearing is held in superior
court, and until all colorable claims of privilege and privacy are
decided by the court.”].

[98] CAL: Pen. Code§1526(b)(2).

[99] NOTE:
Telephonic warrant procedure: The affiant reads the
affidavit to the judge over the phone. If the judge finds that
probable cause exists, he or she will authorize the affiant to
sign the judge’s name to a search warrant. (Although used
extensively in the past, most officers find it is easier and
quicker to use fax and email warrants.) The usual procedure is as
follows:

To obtain the warrant

(1) Complete the warrant: The affiant types or prints the
words “Duplicate Original” at the top of a blank search warrant,
then completes the warrant; i.e., specifies the grounds for the
warrant, describes the evidence, and so forth.

(2) Phone judge; activate recorder: Before activating the
recording equipment, the affiant tells the judge that he is
seeking a telephonic warrant and that their conversation will be
recorded.

(3) Oath administered; affiant relates facts: After being
sworn by the judge, the affiant relates the facts that are
believed to establish probable cause.

(4) Warrant issued: If the judge finds that probable cause
exists and approves the wording on the duplicate original warrant,
he will authorize the affiant to print or sign his name on the
duplicate original. The signed duplicate original is now a search
warrant. The judge should note the time this occurred because this
information will be needed later.

(5) Warrant is executed; time noted: The time the warrant
was executed must be noted on the duplicate original warrant.

After the warrant is executed

(1) Transcribe recording: Promptly after the warrant is
executed, the recorded telephone conversation between the affiant
and the judge must be transcribed. The transcription will become
the equivalent of the search warrant affidavit.

(2) Prepare original warrant: Affiant prepares a search
warrant with the word “Original” typed or printed at the top. The
original warrant is identical to the duplicate original except it
is not signed.

(3) “Return” the recording and transcript: Promptly after
the warrant is executed, the affiant delivers the recording and
transcription to the judge.

(4) Warrant returned: Within ten days after the warrant was
issued, the affiant delivers the following to the judge: (a)
unsigned original warrant, (b) duplicate original warrant, and (c)
inventory of seized property

(5) Judge signs: The judge signs the original warrant and
writes on it the time the affiant was authorized to sign the
judge’s name to the duplicate original warrant.

(6) Certify recording and transcript: The judge reviews the
recording and the transcription and, if found to be accurate,
certifies them as correct.

(7) Filing: The judge files the following with the court
clerk: (a) the recording of the telephone conversation, (b) the
transcription of the recording, (c) original warrant, (d)
duplicate original warrant, and (e) inventory of seized property.
Pen. Code§§ 1526(b)(2), 1534, 1537.

[100] NOTE:
Fax warrant procedure: Search warrants may be obtained by
fax as follows: (See Pen. Code§§ 1526(b)(2), 1534, 1537.
ALSO SEE: US v. Bueno-Vargas (9C 2004)
383 F3 1104, 1108 [faxed statement under penalty of perjury
satisfied requirement of oath or affirmation].

(1) Complete affidavit and warrant: Same as conventional
affidavit and warrant.

(2) Phone judge: Notify the judge that an affidavit and
search warrant have been prepared for immediate transmission by
fax.

(3) Oath is administered: Before the documents are
transmitted, the judge administers the oath to the affiant over
the phone.

(4) Affiant signs: Having been sworn, the affiant signs the
affidavit.

(5) Documents transmitted: Affiant transmits the following
to the judge: (a) the signed affidavit, (b) any attachments to the
affidavit, and (c) the search warrant.

(6) Confirmation: The judge confirms that all pages were
received and are legible. Missing or illegible pages must be
re-transmitted. Affiant confirms over the phone that the signature
on the affidavit is his.

(7) Judge reads affidavit: The judge determines whether the
facts contained in the affidavit establish probable cause.

(8) Warrant issued: If probable cause exists, the judge
will do the following:

(a) Sign and date warrant: Sign the warrant and note the
time and date it was signed.

(b) Oath notation: Note on the warrant that the oath was
administered over the telephone.

(c) Original warrant created: Write the words “Original
Warrant” on the signed warrant in the judge’s possession.

(9) Warrant transmitted to affiant: The judge faxes the
signed warrant to the affiant.

(10) Confirm: The affiant confirms over the phone that the
warrant was received.

(11) Duplicate original warrant is created: The judge
authorizes the affiant to write the words “Duplicate Original” on
the signed warrant that was transmitted to the affiant. The
duplicate original is now a lawful search warrant.

(12) Duplicate original warrant is executed: The exact time
the warrant was executed must be written on the duplicate original
warrant.

(13) Warrant is returned: Within ten days after the warrant
was issued, the affiant “returns” to the judge the duplicate
original warrant and an inventory of the evidence that was seized.
The original warrant in the judge’s possession is filed with the
duplicate original.

[101] CAL: Pen. Code§ 1526(b)(2).

[102] NOTE: The following was a
tentative protocol developed by the Alameda County DA’s Office. We
expect there will be modifications to the procedure as time goes
on.

Nomenclature

Affiant vs. Declarant: Technically, the officer who writes
an affidavit for a search warrant is an affiant, and an officer
who writes a Declaration of Probable Cause for a
Ramey warrant is declarant. To simply things, we will refer
to the officer who is applying for any type of warrant as the
affiant, and we will refer to both affidavits and declarations as
affidavits.

CRIMS: CRIMS is a secure internet site used by officers and
judges in Alameda County).

Attachments: If the affiant needs to include one or more
attachments to the affidavit, he or she will click the
“Attachment” button and follow the instructions for attaching a
document and incorporating it into the affidavit.

Digital signature: The term “digital signature” means “an
electronic identifier, created by computer, intended by the party
using it to have the same force and effect as the use of a manual
signature.” Gov. Code§ 16.5(d).

Electronic signature: The term “electronic signature” means
“an electronic sound, symbol, or process attached to or logically
associated with an electronic record and executed or adopted by a
person with the intent to sign the electronic record.” Civ. Code
§ 1633.2(h).

(1) Affiant phones judge: The affiant will phone the
on-call judge for the following purposes:

Notification: The affiant will notify the judge that a
proposed warrant and accompanying affidavit have been prepared and
are ready to be transmitted to the judge via CRIMS.

Special requests: If the affiant is requesting that the
judge authorize one or more special requests, the affiant must
notify the judge so that the judge can make sure that the
affidavit contains sufficient facts to justify the order.

Attachments: If the affiant incorporated an attachment to
the affidavit, he or she must notify the judge so that the judge
will be sure to download it.

Priority: The affiant will notify the judge if the issuance
of the warrant is needed as soon as possible or, if not, when it
will be needed.

Affiant sworn: The judge will administer the oath to the
affiant over the phone. The affiant must sign the affidavit and
send the proposed warrant and any attachments to the judge, after
which the affiant would phone the judge and swear that the
affidavit he signed is correct)

(2) Affiant transmits documents to judge: The affiant signs
affidavit before being sworn, then transmits affidavit and any
other documents to the judge. Upon receipt, the judge will
administer the oath over the telephone. Pen. Code§
1526(b)(1). Everything else remains the same.

(3) Judge confirms: At this point, the judge will confirm
with the affiant over the phone that the proposed warrant and
affidavit (including any attachments) were received and are
legible. The judge may choose to remain on the phone with the
affiant while the proposed warrant is being reviewed, or the judge
may make other arrangements for any renewed communication. If any
part of the affidavit is not legible or if any attachments are
missing, the warrant must be denied in its entirety. The affiant
may resubmit a corrected affidavit after being re-sworn.

(4) Judge reviews affidavit and warrant: The judge will
review the affidavit and any attachments to determine if (a) it
contains facts that establish probable, and (b) there are
sufficient grounds for all requested special procedures.

(5) Judge issues or denies warrant

Warrant issued: If the judge determines that probable cause
exists, and if the judge approves of the language contained in the
proposed warrant, he or she will do the following: (a) for each
special request, click “Approve” or “Deny,” (b) click the
“Approve” search warrant button which will trigger the following
actions by CRIMS: (i) CRIMS will insert the judge’s digital
signature to the warrant (See Pen. Code§ 1526(b)(2)(C)(i)
[“The magistrate’s signature may be in the form of a digital
signature or electronic signature if electronic mail or computer
server is used for transmission to the magistrate.”). (ii) CRIMS
will insert authorization to utilize all special procedures that
were approved, (iii) CRIMS will convert the warrant into an
unalterable PDF file.

Transmit to affiant: CRIMS will transmit the warrant to the
affiant after inserting the date and time of transmission.

Transmit to court clerk: CRIMS will transmit a copy of the
warrant and affidavit to the Court Clerk after inserting the date
and time of transmission.

Judge and affiant confer: After the warrant has been
transmitted, the judge and affiant will confer for the following
purposes:

Duplicate original created: If the warrant was received,
the judge will authorize the affiant to write the words “Duplicate
Original” on the first copy of the warrant to be printed.

Warrant denied: If the judge determines that probable cause
does not exist, the judge will click the “Deny” button. This will
result in the deletion of all documents submitted to the judge,
including deletion from the judge’s queue of the entry pertaining
to this application. If the judge chooses, he or she may confer
with the affiant by phone and attempt to cure the defects. For
legal assistance, the affiant should phone the on-call Deputy
District Attorney.

Retransmission after rejection: If the affiant transmits a
revised affidavit to the judge after making the necessary changes,
the judge must re-administer the oath before it is transmitted.

[103] NOTE: The following is a
tentative procedure to be used after an email-issued search or
arrest warrant has been executed:

(1) Affiant prints hard copy: The affiant will print at
least four hard copies of the warrant, affidavit and any
attachments to the affidavit, and will write the words “Duplicate
Original” on the first copy of the warrant to be printed. The
affiant will retain the “Duplicate Original” warrant.

(2) Warrant executed: The warrant will be duly executed. On
the “Duplicate Original” warrant the affiant will write the date
and time the warrant was executed.

(3) Affiant returns warrant: Within ten days after the
warrant was issued, the affiant will complete a Return of Warrant
form via CRIMS and transmit it to the Court Clerk’s Office.

(4) Court Clerk processes documents: At the start of each
business day, the Court Clerk’s Office will check CRIMS to
determine if any warrants or returns were transmitted to the
Clerk’s Office. If so, the Court Clerk will do the following:
Print warrant and affidavit: Print a hard copy of the
warrant and the affidavit (including any attachments).

(a) Assign number: Assign a search warrant number to the
printed warrant, affidavit, and Return of Warrant; and write the
words “Original Warrant” on the warrant.

(b) File documents: File the “Original Warrant” and all other
documents in the customary manner.

(c) Process Return of Warrant: When a Return of Warrant
form is received, the Clerk will insert the warrant number, print
the form, and file it in the customary manner.

(5) Affiant provides copies to DA: The affiant will ensure
that at least one copy of the following shall be provided to the
District Attorney’s Office at the time the case is presented for
charging: (1) the warrant, (2) the affidavit (including any
attachments), and the Return of Warrant. If a person is charged as
a result of evidence discovered during the execution of the
warrant, the District Attorney’s Office will promptly provide
copies of these documents to the person’s attorney of record in
the course of discovery.

[104] USSC: Srgo v.
US (1932) 287 US 206, 211 [“The issue of a second warrant
is essentially a new proceeding which must have adequate
support.”]. CAL: P v. Larkin (1987) 194 CA3
650, 656 [“After the 10-day period, the magistrate must make a
finding probable cause still exists in order to reissue the
warrant or issue a new warrant.”]; P v.
Sanchez (1972) 24 CA3 664, 682 [“there is no statutory
authority for the revalidation and reissuance of a search
warrant”].

[105] EXAMPLE:
Affidavit for Reissuance of Search Warrant: On [date first
search warrant was issued] a warrant (hereinafter Search Warrant
Number One) was issued by [name of judge who issued Search
Warrant Number One] authorizing a search of [insert place to be
searched]. A copy of the warrant and affidavit are attached
hereto, incorporated by reference, and marked “Exhibit A” and
“Exhibit B, respectively. For the following reasons, Search
Warrant Number One was not executed within ten days of issuance:
[explain reasons]. I am not aware of any new developments or
changed circumstances that might have weakened or undermined the
determination that Search Warrant Number One was supported by
probable cause and was properly issued. Consequently, I believe
that the evidence listed in the Search Warrant Number One is
still located at the place to be searched, and I am hereby
applying for a second search warrant identical in all material
respects to Search Warrant Number One. I declare under penalty
of perjury that the foregoing is true and correct.

[106] USSC: Srgo v. US (1932)
287 US 206, 211 [“The commissioner has no authority to rely on
affidavits which have sole relation to a different time and have
not been brought down to date or supplemented so that they can be
deemed to disclose grounds existing when the new warrant is
issued.”]. CAL: P v. Sanchez (1972) 24 CA3
664, 681-82.

[107] CAL: Pen. Code§§ 1523,
1536; P v. Superior Court (Laff) (2001) 25
CA4 703, 713 [“Law enforcement officers who seize property
pursuant to a warrant issued by the court do so on behalf of the
court, which has authority pursuant to Pen. Code§ 1536 to
control the disposition of the property.”]; P v.
Von Villas (1992) 10 CA4 201, 239 [“Section 1536 was
enacted in order to provide controls over those officials in
possession of property seized pursuant to a search warrant,
pending resolution of the disposition of the property”];
Oziel v. Superior Court (1990) 223 CA3 1284, 1293, 1302.
[“the police held the videotape on behalf of the court and have no
authority to disclose it or dispose of it except as the court may
order”].

[108] USSC: Andresen v.
Maryland (1976) 427 US 463, 482, fn.11 [“to the extent such
papers were not within the scope of the warrants or were otherwise
improperly seized, the State was correct in returning them
voluntarily”].

[109] CAL: Pen. Code§ 939.2;
M.B. v. Superior Court (2002) 103 CA4 1384,
1388.

[110] CAL: Pen. Code§§ 1326,
1327; Evid. Code§ 1560; P v.
Superior Court (Barrett) (2000) 80 CA4 1305, 1315 [a
subpoena duces tecum requires the person served “to produce
information in court”]; Carlson v.
Superior Court (1976) 58 CA3 13, 22 [“law enforcement
officials may not gain access to an accused’s private papers by
subpoena until there has been a judicial determination there is
probable cause to believe he has committed a criminal offense and
that the papers and documents described in the subpoena would be
material evidence in the case”].