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California Penal Code Section 1526

Legal Research Home > California Lawyer > Penal Code > California Penal Code Section 1526

(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.
   (2) The oath is made using telephone and facsimile transmission
equipment, or made using telephone and electronic mail, as follows:
   (A) The oath is made during a telephone conversation with the
magistrate, whereafter the affiant shall sign his or her affidavit in
support of the application for the search warrant.  The affiant's
signature shall be in the form of a digital signature if electronic
mail is used for transmission to the magistrate.  The proposed search
warrant and all supporting affidavits and attachments shall then be
transmitted to the magistrate utilizing facsimile transmission
equipment or electronic mail.
   (B) The magistrate shall confirm with the affiant the receipt of
the search warrant and the supporting affidavits and attachments.
The magistrate shall verify that all the pages sent have been
received, that all pages are legible, and that the affiant's
signature or digital signature is acknowledged as genuine.
   (C) If the magistrate decides to issue the search warrant, he or
she shall:
   (i) Cause the warrant, supporting affidavit, and attachments to be
printed if received by electronic mail.
   (ii) Sign the warrant.
   (iii) Note on the warrant the exact date and time of the issuance
of the warrant.
   (iv) Indicate on the warrant that the oath of the affiant was
administered orally over the telephone.
   The completed search warrant, as signed by the magistrate, shall
be deemed to be the original warrant.
   (D) The magistrate shall transmit via facsimile transmission
equipment, or via electronic mail, the signed search warrant to the
affiant who shall telephonically acknowledge its receipt.  The
Magistrate shall then telephonically authorize the affiant to write
the words "duplicate original" on the copy of the completed search
warrant transmitted to the affiant and this document shall be deemed
to be a duplicate original search warrant.  The original warrant and
any affidavits or attachments in support thereof, and any duplicate
original warrant, shall be returned as provided in Section 1534.

Last modified: January 12, 2009