California Law on Phone Search Warrants Landmark Cases
Both the Fourth Amendment of the United States Constitution and its counterpart in the California Constitution (art. I, 13) provide that no search warrant shall issue except upon probable cause, supported by oath or affirmation.
Neither requires presentation of a written affidavit or declaration as a prerequisite to the issuance of a warrant. The use of telephonic search warrant authorized by California law is constitutional (People v. Peck (1974) 38 Cal.App.3d 993, 999-1000).
Compliance with the requisites of the statute must be adhered to in order to insure adequate judicial supervision and control to preserve the constitutional guarantees. (Id. at p. 1000). Technical defects in the procedure, however, do not invalidate the search. (Sternberg v. Superior Court (1974) 41 Cal.App.3d 281, 291-292.)
Penal Code Section 1526 authorizes the issuance of the search warrant on oral statements. It provides in pertinent part as follows:
"(a) The magistrate, before issuing the warrant, may examine on oath the person seeking the warrant and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the party or parties making them. (b) In lieu of the written affidavit required in subdivision (a), the magistrate may take an oral statement under oath under one of the following conditions: (1) The oath shall be made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for the purposes of this chapter. In these cases, the recording of the sworn oral statement and the transcribed statement shall be certified by the magistrate receiving it and shall be filed with the clerk of the court. In the alternative in these cases, the sworn oral statement shall be recorded by a certified court reporter and the transcript of the statement shall be certified by the reporter, after which the magistrate receiving it shall certify the transcript which shall be filed with the clerk of the court."
The certification process employed by section 1526, subdivision (b), ensures an accurate transcription of the oral statement be made. (People v. Meza (1984) 162 Cal.App.3d 25, 35.)
"Regarding the constitutional due process rights of defendant, the certification requirement has a twofold purpose: to provide (1) defendant with an accurate transcription of the oral statement so appropriate challenges to its legal sufficiency might be made and (2) the reviewing court with an accurate record of the factual information considered by the magistrate in making the probable cause determination, without which meaningful review would be foreclosed." (Id. at p. 35.)
If satisfied that grounds for the warrant application exist, "the magistrate may orally authorize a peace officer to sign the magistrate's name on a duplicate original warrant. A duplicate original warrant shall be deemed to be a search warrant for the purposes of this chapter . . . . The magistrate shall enter on the face of the original warrant the exact time of the issuance of the warrant and shall sign and file the original warrant and the duplicate original warrant with the clerk of the court . . . ." ( 1528, subd. (b).)
"(a) A search warrant shall be executed and returned within 10 days after date of issuance. . . . (b) 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." ( 1534, subds. (a) & (b).)
"The officer must forthwith return the warrant to the magistrate, and deliver to him a written inventory of the property taken . . . ." ( 1537.)
A magistrate's failure to certify promptly the transcript of a sworn oral statement taken by him or her, which in turn constituted the affidavit in support of the issuance of a search warrant, would become grounds for granting a suppression motion only if the late certification violated federal or state constitutional standards. (See People v. Meza, supra, 162 Cal.App.3d at p. 35.)