Disclosure of medical records to law enforcement
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1523. A search warrant is an order in writing, in the name of the
people, signed by a magistrate, directed to a peace officer,
commanding him or her to search for a person or persons, a thing or
things, or personal property, and, in the case of a thing or things
or personal property, bring the same before the magistrate.
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 their
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 ***ual exploitation of a child, in violation
of Section 311.3, or possession of matter depicting ***ual 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.
(b) The property or things or 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) 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.
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.
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) 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.
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 or 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.
1524.1. (a) The primary purpose of the testing and disclosure
provided in this section is to benefit the victim of a crime by
informing the victim whether the defendant is infected with the HIV
virus. It is also the intent of the Legislature in enacting this
section to protect the health of both victims of crime and those
accused of committing a crime. Nothing in this section shall be
construed to authorize mandatory testing or disclosure of test
results for the purpose of a charging decision by a prosecutor, nor,
except as specified in subdivisions (g) and (i), shall this section
be construed to authorize breach of the confidentiality provisions
contained in Chapter 7 (commencing with Section 120975) of Part 4 of
Division 105 of the Health and Safety Code.
(b) (1) Notwithstanding the provisions of Chapter 7 (commencing
with Section 120975) of Part 4 of Division 105 of the Health and
Safety Code, when a defendant has been charged by complaint,
information, or indictment with a crime, or a minor is the subject of
a petition filed in juvenile court alleging the commission of a
crime, the court, at the request of the victim, may issue a search
warrant for the purpose of testing the accused's blood or oral
mucosal transudate saliva with any HIV test, as defined in Section
120775 of the Health and Safety Code only under the following
circumstances: when the court finds, upon the conclusion of the
hearing described in paragraph (3), or in those cases in which a
preliminary hearing is not required to be held, that there is
probable cause to believe that the accused committed the offense, and
that there is probable cause to believe that blood, semen, or any
other bodily fluid identified by the State Department of Health
Services in appropriate regulations as capable of transmitting the
human immunodeficiency virus has been transferred from the accused to
the victim.
(2) Notwithstanding Chapter 7 (commencing with Section 120975) of
Part 4 of Division 105 of the Health and Safety Code, when a
defendant has been charged by complaint, information, or indictment
with a crime under Section 220, 261, 261.5, 262, 264.1, 266c, 269,
286, 288, 288a, 288.5, 289, or 289.5, or with an attempt to commit
any of the offenses, and is the subject of a police report alleging
the commission of a separate, uncharged offense that could be charged
under Section 220, 261, 261.5, 262, 264.1, 266c, 269, 286, 288,
288a, 288.5, 289, or 289.5, or of an attempt to commit any of the
offenses, or a minor is the subject of a petition filed in juvenile
court alleging the commission of a crime under Section 220, 261,
261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.5, 289, or 289.5,
or of an attempt to commit any of the offenses, and is the subject of
a police report alleging the commission of a separate, uncharged
offense that could be charged under Section 220, 261, 261.5, 262,
264.1, 266c, 269, 286, 288, 288a, 288.5, 289, or 289.5, or of an
attempt to commit any of the offenses, the court, at the request of
the victim of the uncharged offense, may issue a search warrant for
the purpose of testing the accused's blood or oral mucosal transudate
saliva with any HIV test, as defined in Section 120775 of the Health
and Safety Code only under the following circumstances: when the
court finds that there is probable cause to believe that the accused
committed the uncharged offense, and that there is probable cause to
believe that blood, semen, or any other bodily fluid identified by
the State Department of Health Services in appropriate regulations as
capable of transmitting the human immunodeficiency virus has been
transferred from the accused to the victim. As used in this
paragraph, "Section 289.5" refers to the statute enacted by Chapter
293 of the Statutes of 1991, penetration by an unknown object.
(3) (A) Prior to the issuance of a search warrant pursuant to
paragraph (1), the court, where applicable and at the conclusion of
the preliminary examination if the defendant is ordered to answer
pursuant to Section 872, shall conduct a hearing at which both the
victim and the defendant have the right to be present. During the
hearing, only affidavits, counter affidavits, and medical reports
regarding the facts that support or rebut the issuance of a search
warrant under paragraph (1) shall be admissible.
(B) Prior to the issuance of a search warrant pursuant to
paragraph (2), the court, where applicable, shall conduct a hearing
at which both the victim and the defendant are present. During the
hearing, only affidavits, counter affidavits, and medical reports
regarding the facts that support or rebut the issuance of a search
warrant under paragraph (2) shall be admissible.
(4) A request for a probable cause hearing made by a victim under
paragraph (2) shall be made before sentencing in the superior court,
or before disposition on a petition in a juvenile court, of the
criminal charge or charges filed against the defendant.
(c) (1) In all cases in which the person has been charged by
complaint, information, or indictment with a crime, or is the subject
of a petition filed in a juvenile court alleging the commission of a
crime, the prosecutor shall advise the victim of his or her right to
make this request. To assist the victim of the crime to determine
whether he or she should make this request, the prosecutor shall
refer the victim to the local health officer for prerequest
counseling to help that person understand the extent to which the
particular circumstances of the crime may or may not have put the
victim at risk of transmission of HIV from the accused, to ensure
that the victim understands both the benefits and limitations of the
current tests for HIV, to help the victim decide whether he or she
wants to request that the accused be tested, and to help the victim
decide whether he or she wants to be tested.
(2) The Department of Justice, in cooperation with the California
District Attorneys Association, shall prepare a form to be used in
providing victims with the notice required by paragraph (1).
(d) If the victim decides to request HIV testing of the accused,
the victim shall request the issuance of a search warrant, as
described in subdivision (b).
Neither the failure of a prosecutor to refer or advise the victim
as provided in this subdivision, nor the failure or refusal by the
victim to seek or obtain counseling, shall be considered by the court
in ruling on the victim's request.
(e) The local health officer shall make provision for
administering all HIV tests ordered pursuant to subdivision (b).
(f) Any blood or oral mucosal transudate saliva tested pursuant to
subdivision (b) shall be subjected to appropriate confirmatory tests
to ensure accuracy of the first test results, and under no
circumstances shall test results be transmitted to the victim or the
accused unless any initially reactive test result has been confirmed
by appropriate confirmatory tests for positive reactors.
(g) The local health officer shall have the responsibility for
disclosing test results to the victim who requested the test and to
the accused who was tested. However, no positive test results shall
be disclosed to the victim or to the accused without also providing
or offering professional counseling appropriate to the circumstances.
(h) The local health officer and victim shall comply with all laws
and policies relating to medical confidentiality subject to the
disclosure authorized by subdivisions (g) and (i). Any individual
who files a false report of ***ual assault in order to obtain test
result information pursuant to this section shall, in addition to any
other liability under law, be guilty of a misdemeanor punishable as
provided in subdivision (c) of Section 120980 of the Health and
Safety Code. Any individual as described in the preceding sentence
who discloses test result information obtained pursuant to this
section shall also be guilty of an additional misdemeanor punishable
as provided for in subdivision (c) of Section 120980 of the Health
and Safety Code for each separate disclosure of that information.
(i) Any victim who receives information from the health officer
pursuant to subdivision (g) may disclose the test results as the
victim deems necessary to protect his or her health and safety or the
health and safety of his or her family or ***ual partner.
(j) Any person transmitting test results or disclosing information
pursuant to this section shall be immune from civil liability for
any actions taken in compliance with this section.
(k) The results of any blood or oral mucosal transudate saliva
tested pursuant to subdivision (b) shall not be used in any criminal
proceeding as evidence of either guilt or innocence.
1524.2. (a) As used in this section, the following terms have the
following meanings:
(1) The terms "electronic communication services" and "remote
computing services" shall be construed in accordance with the
Electronic Communications Privacy Act in Chapter 121 (commencing with
Section 2701) of Part I of Title 18 of the United State Code
Annotated. This section shall not apply to corporations that do not
provide those services to the general public.
(2) An "adverse result" occurs when notification of the existence
of a search warrant results in:
(A) Danger to the life or physical safety of an individual.
(B) A flight from prosecution.
(C) The destruction of or tampering with evidence.
(D) The intimidation of potential witnesses.
(E) Serious jeopardy to an investigation or undue delay of a
trial.
(3) "Applicant" refers to the peace officer to whom a search
warrant is issued pursuant to subdivision (a) of Section 1528.
(4) "California corporation" refers to any corporation or other
entity that is subject to Section 102 of the Corporations Code,
excluding foreign corporations.
(5) "Foreign corporation" refers to any corporation that is
qualified to do business in this state pursuant to Section 2105 of
the Corporations Code.
(6) "Properly served" means that a search warrant has been
delivered by hand, or in a manner reasonably allowing for proof of
delivery if delivered by United States mail, overnight delivery
service, or facsimile to a person or entity listed in Section 2110 of
the Corporations Code.
(b) The following provisions shall apply to any search warrant
issued pursuant to this chapter allowing a search for records that
are in the actual or constructive possession of a foreign corporation
that provides electronic communication services or remote computing
services to the general public, where those records would reveal the
identity of the customers using those services, data stored by, or on
behalf of, the customer, the customer's usage of those services, the
recipient or destination of communications sent to or from those
customers, or the content of those communications.
(1) When properly served with a search warrant issued by the
California court, a foreign corporation subject to this section shall
provide to the applicant, all records sought pursuant to that
warrant within five business days of receipt, including those records
maintained or located outside this state.
(2) Where the applicant makes a showing and the magistrate finds
that failure to produce records within less than five business days
would cause an adverse result, the warrant may require production of
records within less than five business days. A court may reasonably
extend the time required for production of the records upon finding
that the foreign corporation has shown good cause for that extension
and that an extension of time would not cause an adverse result.
(3) A foreign corporation seeking to quash the warrant must seek
relief from the court that issued the warrant within the time
required for production of records pursuant to this section. The
issuing court shall hear and decide that motion no later than five
court days after the motion is filed.
(4) The foreign corporation shall verify the authenticity of
records that it produces by providing an affidavit that complies with
the requirements set forth in Section 1561 of the Evidence Code.
Those records shall be admissible in evidence as set forth in Section
1562 of the Evidence Code.
(c) A California corporation that provides electronic
communication services or remote computing services to the general
public, when served with a warrant issued by another state to produce
records that would reveal the identity of the customers using those
services, data stored by, or on behalf of, the customer, the customer'
s usage of those services, the recipient or destination of
communications sent to or from those customers, or the content of
those communications, shall produce those records as if that warrant
had been issued by a California court.
(d) No cause of action shall lie against any foreign or California
corporation subject to this section, its officers, employees,
agents, or other specified persons for providing records,
information, facilities, or assistance in accordance with the terms
of a warrant issued pursuant to this chapter.
1524.3. (a) A provider of electronic communication service or
remote computing service, as used in Chapter 121 (commencing with
Section 2701) of Title 18 of the United States Code, shall disclose
to a governmental prosecuting or investigating agency the name,
address, local and long distance telephone toll billing records,
telephone number or other subscriber number or identity, and length
of service of a subscriber to or customer of that service, and the
types of services the subscriber or customer utilized, when the
governmental entity is granted a search warrant pursuant to paragraph
(7) of subdivision (a) of Section 1524.
(b) A governmental entity receiving subscriber records or
information under this section is not required to provide notice to a
subscriber or customer.
(c) A court issuing a search warrant pursuant to paragraph (7) of
subdivision (a) of Section 1524, on a motion made promptly by the
service provider, may quash or modify the warrant if the information
or records requested are unusually voluminous in nature or compliance
with the warrant otherwise would cause an undue burden on the
provider.
(d) A provider of wire or electronic communication services or a
remote computing service, upon the request of a peace officer, shall
take all necessary steps to preserve records and other evidence in
its possession pending the issuance of a search warrant or a request
in writing and an affidavit declaring an intent to file a warrant to
the provider. Records shall be retained for a period of 90 days,
which shall be extended for an additional 90-day period upon a
renewed request by the peace officer.
(e) No cause of action shall be brought against any provider, its
officers, employees, or agents for providing information, facilities,
or assistance in good faith compliance with a search warrant.
1525. 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.
The application shall specify when applicable, that the place to
be searched is in the possession or under the control of an attorney,
physician, psychotherapist or clergyman.
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.
1527. The affidavit or affidavits must set forth the facts tending
to establish the grounds of the application, or probable cause for
believing that they exist.
1528. (a) If the magistrate is thereupon satisfied of the existence
of the grounds of the application, or that there is probable cause
to believe their existence, he or she must issue a search warrant,
signed by him or her with his or her name of office, to a peace
officer in his or her county, commanding him or her forthwith to
search the person or place named for the property or things or person
or persons specified, and to retain the property or things in his or
her custody subject to order of the court as provided by Section
1536.
(b) 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, and it shall be returned to the magistrate
as provided for in Section 1537. 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 as provided
for in Section 1541.
1529. The warrant shall be in substantially the following form:
County of ____.
The people of the State of California to any peace officer in the
County of ____:
Proof, by affidavit, having been this day made before me by
(naming every person whose affidavit has been taken), that (stating
the grounds of the application, according to Section 1524, or, if the
affidavit be not positive, that there is probable cause for
believing that ____ stating the ground of the application in the same
manner), you are therefore commanded, in the daytime (or at any time
of the day or night, as the case may be, according to Section 1533),
to make search on the person of C.D. (or in the house situated ____,
describing it, or any other place to be searched, with reasonable
particularity, as the case may be) for the following property, thing,
things, or person: (describing the property, thing, things, or
person with reasonable particularity); and, in the case of a thing or
things or personal property, if you find the same or any part
thereof, to bring the thing or things or personal property forthwith
before me (or this court) at (stating the place).
Given under my hand, and dated this ____ day of ____, A.D. (year).
E.F., Judge of the (applicable) Court.
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.
1531. The officer may break open any outer or inner door or window
of a house, or any part of a house, or anything therein, to execute
the warrant, if, after notice of his authority and purpose, he is
refused admittance.
1532. He may break open any outer or inner door or window of a
house, for the purpose of liberating a person who, having entered to
aid him in the execution of the warrant, is detained therein, or when
necessary for his own liberation.
1533. Upon a showing of good cause, the magistrate may, in his or
her discretion, insert a direction in a search warrant that it may be
served at any time of the day or night. In the absence of such a
direction, the warrant shall be served only between the hours of 7
a.m. and 10 p.m.
When establishing "good cause" under this section, the magistrate
shall consider the safety of the peace officers serving the warrant
and the safety of the public as a valid basis for nighttime
endorsements.
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) 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) A search warrant may be made returnable before the issuing
magistrate or his court.
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.
1536. All property or things taken on a warrant must be retained by
the officer in his custody, subject to the order of the court to
which he is required to return the proceedings before him, or of any
other court in which the offense in respect to which the property or
things taken is triable.
1536.5. (a) If a government agency seizes business records from an
entity pursuant to a search warrant, the entity from which the
records were seized may file a demand on that government agency to
produce copies of the business records that have been seized. The
demand for production of copies of business records shall be
supported by a declaration, made under penalty of perjury, that
denial of access to the records in question will either unduly
interfere with the entity's ability to conduct its regular course of
business or obstruct the entity from fulfilling an affirmative
obligation that it has under the law. Unless the government agency
objects pursuant to subdivision (d), this declaration shall suffice
if it makes a prima facie case that specific business activities or
specific legal obligations faced by the entity would be impaired or
impeded by the ongoing loss of records.
(b) (1) Except as provided in paragraph (2), when a government
agency seizes business records from an entity and is subsequently
served with a demand for copies of those business records pursuant to
subdivision (a), the government agency in possession of those
records shall make copies of those records available to the entity
within 10 court days of the service of the demand to produce copies
of the records.
(2) In the alternative, the agency in possession of the original
records, may in its discretion, make the original records reasonably
available to the entity within 10 court days following the service of
the demand to produce records, and allow the entity reasonable time
to copy the records.
(3) No agency shall be required to make records available at times
other than normal business hours.
(4) If data is recorded in a tangible medium, copies of the data
may be provided in that same medium, or any other medium of which the
entity may make reasonable use. If the data is stored
electronically, electromagnetically, or photo-optically, the entity
may obtain either a copy made by the same process in which the data
is stored, or in the alternative, by any other tangible medium
through which the entity may make reasonable use of the data.
(5) A government agency granting the entity access to the original
records for the purpose of making copies of the records, may take
reasonable steps to ensure the integrity and chain of custody of the
business records.
(6) If the seized records are too voluminous to be reviewed or be
copied in the time period required by subdivision (a), the government
agency that seized the records may file a written motion with the
court for additional time to review the records or make the copies.
This motion shall be made within 10 court days of the service of the
demand for the records. An extension of time under this paragraph
shall not be granted unless the agency establishes that reviewing or
producing copies of the records within the 10 court day time period,
would create a hardship on the agency. If the court grants the
motion, it shall make an order designating a timeframe for the review
and the duplication and return of the business records, deferring to
the entity the priority of the records to be reviewed, duplicated,
and returned first.
(c) If a court finds that a declaration made by an entity as
provided in subdivision (a) is adequate to establish the specified
prima facie case, a government agency may refuse to produce copies of
the business records or to grant access to the original records only
under one or both of the following circumstances:
(1) The court determines by the preponderance of the evidence
standard that denial of access to the business records or copies of
the business records will not unduly interfere with the entity's
ability to conduct its regular course of business or obstruct the
entity from fulfilling an affirmative obligation that it has under
the law.
(2) The court determines by the preponderance of the evidence
standard that possession of the business records by the entity will
pose a significant risk of ongoing criminal activity, or that the
business records are contraband, evidence of criminal conduct by the
entity from which the records were seized, or depict a person under
the age of 18 years personally engaging in or simulating ***ual
conduct, as defined in subdivision (d) of Section 311.4.
(d) A government agency that desires not to produce copies of, or
grant access to, seized business records shall file a motion with the
court requesting an order denying the entity copies of and access to
the records. A motion under this paragraph shall be in writing, and
filed and served upon the entity prior to the expiration of 10 court
days following the service of the demand to produce records
specified in subdivision (a), within any extension of that time
period granted under paragraph (6) of subdivision (b), or as soon as
reasonably possible after discovery of the risk of harm.
(e) A hearing on a motion under subdivision (d) shall be held
within two court days of the filing of the motion, except upon
agreement of the parties.
(f) (1) Upon filing a motion under subdivision (d) opposing a
demand for copies of records, the government agency may file a
request in writing, served upon the demanding entity, that any
showings of why the material should not be copied and released occur
in an ex parte, in camera hearing. If the government agency alleges
in its request for an in camera hearing that the demanding entity is,
or is likely to become, a target of the investigation resulting in
the seizure of records, the court shall hold this hearing outside of
the presence of the demanding entity, and any representatives or
counsel of the demanding entity. If the government agency does not
allege in its request for an in camera hearing that the demanding
entity is, or is likely to become, a target of the investigation
resulting in the seizure of records, the court shall hold the hearing
in camera only upon a particular factual showing by the government
agency in its pleadings that a hearing in open court would impede or
interrupt an ongoing criminal investigation.
(2) At the in camera hearing, any evidence that the government
agency may offer that the release of the material would pose a
significant risk of ongoing criminal activity, impede or interrupt an
ongoing criminal investigation, or both, shall be offered under
oath. A reporter shall be present at the in camera hearing to
transcribe the entirety of the proceedings.
(3) Any transcription of the proceedings at the in camera hearing,
as well as any physical evidence presented at the hearing, shall be
ordered sealed by the court, and only a court may have access to its
contents, unless a court determines that the failure to disclose the
contents of the hearing would deprive the defendant or the people of
a fair trial.
(4) Following the conclusion of the in camera hearing, the court
shall make its ruling in open court, after notice to the demanding
entity.
(g) The reasonable and necessary costs of producing copies of
business records under this section shall be borne by the entity
requesting copies of the records. Either party may request the
court to resolve any dispute regarding these costs.
(h) Any motion under this section shall be filed in the court that
issued the search warrant.
(i) For purposes of this section, the following terms are defined
as follows:
(1) "Seize" means obtaining actual possession of any property
alleged by the entity to contain business records.
(2) "Business" means an entity, sole proprietorship, partnership,
or corporation operating legally in the State of California, that
sells, leases, distributes, creates, or otherwise offers products or
services to customers.
(3) "Business records" means computer data, data compilations,
accounts, books, reports, contracts, correspondence, inventories,
lists, personnel files, payrolls, vendor and client lists, documents,
or papers of the person or business normally used in the regular
course of business, or any other material item of business
recordkeeping that may become technologically feasible in the future.
1537. The officer must forthwith return the warrant to the
magistrate, and deliver to him a written inventory of the property
taken, made publicly or in the presence of the person from whose
possession it was taken, and of the applicant for the warrant, if
they are present, verified by the affidavit of the officer at the
foot of the inventory, and taken before the magistrate at the time,
to the following effect: "I, R.S., the officer by whom this warrant
was executed, do swear that the above inventory contains a true and
detailed account of all the property taken by me on the warrant."
1538. The magistrate must thereupon, if required, deliver a copy of
the inventory to the person from whose possession the property was
taken, and to the applicant for the warrant.
1538.5. (a) (1) A defendant may move for the return of property or
to suppress as evidence any tangible or intangible thing obtained as
a result of a search or seizure on either of the following grounds:
(A) The search or seizure without a warrant was unreasonable.
(B) The search or seizure with a warrant was unreasonable because
any of the following apply:
(i) The warrant is insufficient on its face.
(ii) The property or evidence obtained is not that described in
the warrant.
(iii) There was not probable cause for the issuance of the
warrant.
(iv) The method of execution of the warrant violated federal or
state constitutional standards.
(v) There was any other violation of federal or state
constitutional standards.
(2) A motion pursuant to paragraph (1) shall be made in writing
and accompanied by a memorandum of points and authorities and proof
of service. The memorandum shall list the specific items of property
or evidence sought to be returned or suppressed and shall set forth
the factual basis and the legal authorities that demonstrate why the
motion should be granted.
(b) When consistent with the procedures set forth in this section
and subject to the provisions of Sections 170 to 170.6, inclusive, of
the Code of Civil Procedure, the motion should first be heard by the
magistrate who issued the search warrant if there is a warrant.
(c) (1) Whenever a search or seizure motion is made in the
superior court as provided in this section, the judge or magistrate
shall receive evidence on any issue of fact necessary to determine
the motion.
(2) While a witness is under examination during a hearing pursuant
to a search or seizure motion, the judge or magistrate shall, upon
motion of either party, do any of the following:
(A) Exclude all potential and actual witnesses who have not been
examined.
(B) Order the witnesses not to converse with each other until they
are all examined.
(C) Order, where feasible, that the witnesses be kept separated
from each other until they are all examined.
(D) Hold a hearing, on the record, to determine if the person
sought to be excluded is, in fact, a person excludable under this
section.
(3) Either party may challenge the exclusion of any person under
paragraph (2).
(4) Paragraph (2) does not apply to the investigating officer or
the investigator for the defendant, nor does it apply to officers
having custody of persons brought before the court.
(d) If a search or seizure motion is granted pursuant to the
proceedings authorized by this section, the property or evidence
shall not be admissible against the movant at any trial or other
hearing unless further proceedings authorized by this section,
Section 871.5, 1238, or 1466 are utilized by the people.
(e) If a search or seizure motion is granted at a trial, the
property shall be returned upon order of the court unless it is
otherwise subject to lawful detention. If the motion is granted at a
special hearing, the property shall be returned upon order of the
court only if, after the conclusion of any further proceedings
authorized by this section, Section 1238 or 1466, the property is not
subject to lawful detention or if the time for initiating the
proceedings has expired, whichever occurs last. If the motion is
granted at a preliminary hearing, the property shall be returned upon
order of the court after 10 days unless the property is otherwise
subject to lawful detention or unless, within that time, further
proceedings authorized by this section, Section 871.5 or 1238 are
utilized; if they are utilized, the property shall be returned only
if, after the conclusion of the proceedings, the property is no
longer subject to lawful detention.
(f) (1) If the property or evidence relates to a felony offense
initiated by a complaint, the motion shall be made only upon filing
of an information, except that the defendant may make the motion at
the preliminary hearing, but the motion shall be restricted to
evidence sought to be introduced by the people at the preliminary
hearing.
(2) The motion may be made at the preliminary examination only if,
at least five court days before the date set for the preliminary
examination, the defendant has filed and personally served on the
people a written motion accompanied by a memorandum of points and
authorities as required by paragraph (2) of subdivision (a). At the
preliminary examination, the magistrate may grant the defendant a
continuance for the purpose of filing the motion and serving the
motion upon the people, at least five court days before resumption of
the examination, upon a showing that the defendant or his or her
attorney of record was not aware of the evidence or was not aware of
the grounds for suppression before the preliminary examination.
(3) Any written response by the people to the motion described in
paragraph (2) shall be filed with the court and personally served on
the defendant or his or her attorney of record at least two court
days prior to the hearing at which the motion is to be made.
(g) If the property or evidence relates to a misdemeanor
complaint, the motion shall be made before trial and heard prior to
trial at a special hearing relating to the validity of the search or
seizure. If the property or evidence relates to a misdemeanor filed
together with a felony, the procedure provided for a felony in this
section and Sections 1238 and 1539 shall be applicable.
(h) If, prior to the trial of a felony or misdemeanor, opportunity
for this motion did not exist or the defendant was not aware of the
grounds for the motion, the defendant shall have the right to make
this motion during the course of trial.
(i) If the property or evidence obtained relates to a felony
offense initiated by complaint and the defendant was held to answer
at the preliminary hearing, or if the property or evidence relates to
a felony offense initiated by indictment, the defendant shall have
the right to renew or make the motion at a special hearing relating
to the validity of the search or seizure which shall be heard prior
to trial and at least 10 court days after notice to the people,
unless the people are willing to waive a portion of this time. Any
written response by the people to the motion shall be filed with the
court and personally served on the defendant or his or her attorney
of record at least two court days prior to the hearing, unless the
defendant is willing to waive a portion of this time. If the offense
was initiated by indictment or if the offense was initiated by
complaint and no motion was made at the preliminary hearing, the
defendant shall have the right to fully litigate the validity of a
search or seizure on the basis of the evidence presented at a special
hearing. If the motion was made at the preliminary hearing, unless
otherwise agreed to by all parties, evidence presented at the special
hearing shall be limited to the transcript of the preliminary
hearing and to evidence that could not reasonably have been presented
at the preliminary hearing, except that the people may recall
witnesses who testified at the preliminary hearing. If the people
object to the presentation of evidence at the special hearing on the
grounds that the evidence could reasonably have been presented at the
preliminary hearing, the defendant shall be entitled to an in camera
hearing to determine that issue. The court shall base its ruling on
all evidence presented at the special hearing and on the transcript
of the preliminary hearing, and the findings of the magistrate shall
be binding on the court as to evidence or property not affected by
evidence presented at the special hearing. After the special hearing
is held, any review thereafter desired by the defendant prior to
trial shall be by means of an extraordinary writ of mandate or
prohibition filed within 30 days after the denial of his or her
motion at the special hearing.
(j) If the property or evidence relates to a felony offense
initiated by complaint and the defendant's motion for the return of
the property or suppression of the evidence at the preliminary
hearing is granted, and if the defendant is not held to answer at the
preliminary hearing, the people may file a new complaint or seek an
indictment after the preliminary hearing, and the ruling at the prior
hearing shall not be binding in any subsequent proceeding, except as
limited by subdivision (p). In the alternative, the people may move
to reinstate the complaint, or those parts of the complaint for
which the defendant was not held to answer, pursuant to Section
871.5. If the property or evidence relates to a felony offense
initiated by complaint and the defendant's motion for the return or
suppression of the property or evidence at the preliminary hearing is
granted, and if the defendant is held to answer at the preliminary
hearing, the ruling at the preliminary hearing shall be binding upon
the people unless, upon notice to the defendant and the court in
which the preliminary hearing was held and upon the filing of an
information, the people, within 15 days after the preliminary
hearing, request a special hearing, in which case the validity of the
search or seizure shall be relitigated de novo on the basis of the
evidence presented at the special hearing, and the defendant shall be
entitled, as a matter of right, to a continuance of the special
hearing for a period of time up to 30 days. The people may not
request relitigation of the motion at a special hearing if the
defendant's motion has been granted twice. If the defendant's motion
is granted at a special hearing, the people, if they have additional
evidence relating to the motion and not presented at the special
hearing, shall have the right to show good cause at the trial why the
evidence was not presented at the special hearing and why the prior
ruling at the special hearing should not be binding, or the people
may seek appellate review as provided in subdivision (o), unless the
court, prior to the time the review is sought, has dismissed the case
pursuant to Section 1385. If the case has been dismissed pursuant
to Section 1385, or if the people dismiss the case on their own
motion after the special hearing, the people may file a new complaint
or seek an indictment after the special hearing, and the ruling at
the special hearing shall not be binding in any subsequent
proceeding, except as limited by subdivision (p). If the property or
evidence seized relates solely to a misdemeanor complaint, and the
defendant made a motion for the return of property or the suppression
of evidence in the superior court prior to trial, both the people
and defendant shall have the right to appeal any decision of that
court relating to that motion to the appellate division, in
accordance with the California Rules of Court provisions governing
appeals to the appellate division in criminal cases. If the people
prosecute review by appeal or writ to decision, or any review
thereof, in a felony or misdemeanor case, it shall be binding upon
them.
(k) If the defendant's motion to return property or suppress
evidence is granted and the case is dismissed pursuant to Section
1385, or the people appeal in a misdemeanor case pursuant to
subdivision (j), the defendant shall be released pursuant to Section
1318 if he or she is in custody and not returned to custody unless
the proceedings are resumed in the trial court and he or she is
lawfully ordered by the court to be returned to custody.
If the defendant's motion to return property or suppress evidence
is granted and the people file a petition for writ of mandate or
prohibition pursuant to subdivision (o) or a notice of intention to
file a petition, the defendant shall be released pursuant to Section
1318, unless (1) he or she is charged with a capital offense in a
case where the proof is evident and the presumption great, or (2) he
or she is charged with a noncapital offense defined in Chapter 1
(commencing with Section 187) of Title 8 of Part 1, and the court
orders that the defendant be discharged from actual custody upon
bail.
(l) If the defendant's motion to return property or suppress
evidence is granted, the trial of a criminal case shall be stayed to
a specified date pending the termination in the appellate courts of
this state of the proceedings provided for in this section, Section
871.5, 1238, or 1466 and, except upon stipulation of the parties,
pending the time for the initiation of these proceedings. Upon the
termination of these proceedings, the defendant shall be brought to
trial as provided by Section 1382, and, subject to the provisions of
Section 1382, whenever the people have sought and been denied
appellate review pursuant to subdivision (o), the defendant shall be
entitled to have the action dismissed if he or she is not brought to
trial within 30 days of the date of the order that is the last denial
of the petition. Nothing contained in this subdivision shall
prohibit a court, at the same time as it rules upon the search and
seizure motion, from dismissing a case pursuant to Section 1385 when
the dismissal is upon the court's own motion and is based upon an
order at the special hearing granting the defendant's motion to
return property or suppress evidence. In a misdemeanor case, the
defendant shall be entitled to a continuance of up to 30 days if he
or she intends to file a motion to return property or suppress
evidence and needs this time to prepare for the special hearing on
the motion. In case of an appeal by the defendant in a misdemeanor
case from the denial of the motion, he or she shall be entitled to
bail as a matter of right, and, in the discretion of the trial or
appellate court, may be released on his or her own recognizance
pursuant to Section 1318. In the case of an appeal by the defendant
in a misdemeanor case from the denial of the motion, the trial court
may, in its discretion, order or deny a stay of further proceedings
pending disposition of the appeal.
(m) The proceedings provided for in this section, and Sections
871.5, 995, 1238, and 1466 shall constitute the sole and exclusive
remedies prior to conviction to test the unreasonableness of a search
or seizure where the person making the motion for the return of
property or the suppression of evidence is a defendant in a criminal
case and the property or thing has been offered or will be offered as
evidence against him or her. A defendant may seek further review of
the validity of a search or seizure on appeal from a conviction in a
criminal case notwithstanding the fact that the judgment of
conviction is predicated upon a plea of guilty. Review on appeal may
be obtained by the defendant provided that at some stage of the
proceedings prior to conviction he or she has moved for the return of
property or the suppression of the evidence.
(n) This section establishes only the procedure for suppression of
evidence and return of property, and does not establish or alter any
substantive ground for suppression of evidence or return of
property. Nothing contained in this section shall prohibit a person
from making a motion, otherwise permitted by law, to return property,
brought on the ground that the property obtained is protected by the
free speech and press provisions of the United States and California
Constitutions. Nothing in this section shall be construed as
altering (1) the law of standing to raise the issue of an
unreasonable search or seizure; (2) the law relating to the status of
the person conducting the search or seizure; (3) the law relating to
the burden of proof regarding the search or seizure; (4) the law
relating to the reasonableness of a search or seizure regardless of
any warrant that may have been utilized; or (5) the procedure and law
relating to a motion made pursuant to Section 871.5 or 995, or the
procedures that may be initiated after the granting or denial of a
motion.
(o) Within 30 days after a defendant's motion is granted at a
special hearing in a felony case, the people may file a petition for
writ of mandate or prohibition in the court of appeal, seeking
appellate review of the ruling regarding the search or seizure
motion. If the trial of a criminal case is set for a date that is
less than 30 days from the granting of a defendant's motion at a
special hearing in a felony case, the people, if they have not filed
a petition and wish to preserve their right to file a petition, shall
file in the superior court on or before the trial date or within 10
days after the special hearing, whichever occurs last, a notice of
intention to file a petition and shall serve a copy of the notice
upon the defendant.
(p) If a defendant's motion to return property or suppress
evidence in a felony matter has been granted twice, the people may
not file a new complaint or seek an indictment in order to relitigate
the motion or relitigate the matter de novo at a special hearing as
otherwise provided by subdivision (j), unless the people discover
additional evidence relating to the motion that was not reasonably
discoverable at the time of the second suppression hearing.
Relitigation of the motion shall be heard by the same judge who
granted the motion at the first hearing if the judge is available.
(q) The amendments to this section enacted in the 1997 portion of
the 1997-98 Regular Session of the Legislature shall apply to all
criminal proceedings conducted on or after January 1, 1998.
1539. (a) If a special hearing is held in a felony case pursuant to
Section 1538.5, or if the grounds on which the warrant was issued
are controverted and a motion to return property is made (i) by a
defendant on grounds not covered by Section 1538.5, (ii) by a
defendant whose property has not been offered or will not be offered
as evidence against the defendant, or (iii) by a person who is not a
defendant in a criminal action at the time the hearing is held, the
judge or magistrate shall proceed to take testimony in relation
thereto, and the testimony of each witness shall be reduced to
writing and authenticated by a shorthand reporter in the manner
prescribed in Section 869.
(b) The reporter shall forthwith transcribe the reporter's
shorthand notes pursuant to this section if any party to a special
hearing in a felony case files a written request for its preparation
with the clerk of the court in which the hearing was held. The
reporter shall forthwith file in the superior court an original and
as many copies thereof as there are defendants (other than a
fictitious defendant) or persons aggrieved. The reporter is entitled
to compensation in accordance with the provisions of Section 869.
In every case in which a transcript is filed as provided in this
section, the clerk of the court shall deliver the original of the
transcript so filed to the district attorney immediately upon receipt
thereof and shall deliver a copy of the transcript to each defendant
(other than a fictitious defendant) upon demand without cost to the
defendant.
(c) Upon a motion by a defendant pursuant to this chapter, the
defendant is entitled to discover any previous application for a
search warrant in the case which was refused by a magistrate for lack
of probable cause.
1540. If it appears that the property taken is not the same as that
described in the warrant, or that there is no probable cause for
believing the existence of the grounds on which the warrant was
issued, the magistrate must cause it to be restored to the person
from whom it was taken.
1541. The magistrate must annex the affidavit, or affidavits, the
search warrant and return, and the inventory, and if he has not power
to inquire into the offense in respect to which the warrant was
issued, he must at once file such warrant and return and such
affidavit, or affidavits, and inventory with the clerk of the court
having power to so inquire.
1542. When a person charged with a felony is supposed by the
magistrate before whom he is brought to have on his person a
dangerous weapon, or anything which may be used as evidence of the
commission of the offense, the magistrate may direct him to be
searched in his presence, and the weapon or other thing to be
retained, subject to his order, or to the order of the Court in which
the defendant may be tried.
1543. (a) Records of the identity, diagnosis, prognosis, or
treatment of any patient maintained by a health care facility which
are not privileged records required to be secured by the special
master procedure in Section 1524, or records required by law to be
confidential, shall only be disclosed to law enforcement agencies
pursuant to this section:
(1) In accordance with the prior written consent of the patient;
or
(2) If authorized by an appropriate order of a court of competent
jurisdiction in the county where the records are located, granted
after application showing good cause therefor. In assessing good
cause, the court:
(A) Shall weigh the public interest and the need for disclosure
against the injury to the patient, to the physician-patient
relationship, and to the treatment services;
(B) Shall determine that there is a reasonable likelihood that the
records in question will disclose material information or evidence
of substantial value in connection with the investigation or
prosecution; or
(3) By a search warrant obtained pursuant to Section 1524.
(b) The prohibitions of this section continue to apply to records
concerning any individual who has been a patient, irrespective of
whether or when he or she ceases to be a patient.
(c) Except where an extraordinary order under Section 1544 is
granted or a search warrant is obtained pursuant to Section 1524, any
health care facility whose records are sought under this chapter
shall be notified of the application and afforded an opportunity to
appear and be heard thereon.
(d) Both disclosure and dissemination of any information from the
records shall be limited under the terms of the order to assure that
no information will be unnecessarily disclosed and that dissemination
will be no wider than necessary.
This chapter shall not apply to investigations of fraud in the
provision or receipt of Medi-Cal benefits, investigations of
insurance fraud performed by the Department of Insurance or the
California Highway Patrol, investigations of workers' compensation
insurance fraud performed by the Department of Corrections and
conducted by peace officers specified in paragraph (2) of subdivision
(d) of Section 830.2, and investigations and research regarding
occupational health and safety performed by or under agreement with
the Department of Industrial Relations. Access to medical records in
these investigations shall be governed by all laws in effect at the
time access is sought.
(e) Nothing in this chapter shall prohibit disclosure by a medical
facility or medical provider of information contained in medical
records where disclosure to specific agencies is mandated by statutes
or regulations.
(f) This chapter shall not be construed to authorize disclosure of
privileged records to law enforcement agencies by the procedure set
forth in this chapter, where the privileged records are required to
be secured by the special master procedure set forth in subdivision
(c) of Section 1524 or required by law to be confidential.
1544. A law enforcement agency applying for disclosure of patient
records under Section 1543 may petition the court for an
extraordinary order delaying the notice of the application to the
health care facility required by subdivision (f) of Section 1543 for
a period of 30 days, upon a showing of good cause to believe that
notice would seriously impede the investigation.
1545. For the purposes of this chapter:
(a) "Health care facility" means any clinic, health dispensary, or
health facility, licensed pursuant to Division 2 (commencing with
Section 1200) of the Health and Safety Code, or any mental hospital,
drug abuse clinic, or detoxification center.
(b) "Law enforcement agency" means the Attorney General of the
State of California, every district attorney, and every agency of the
State of California expressly authorized by statute to investigate
or prosecute law violators.
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