Legislature(2003 - 2004)

03/12/2003 01:04 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 114 - ISSUANCE OF SEARCH WARRANTS                                                                                          
Number 0099                                                                                                                     
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be HOUSE  BILL NO.  114, "An  Act relating to  the issuance  of a                                                               
search warrant."                                                                                                                
Number 0122                                                                                                                     
DOUG  WOOLIVER,  Administrative Attorney,  Administrative  Staff,                                                               
Office  of  the  Administrative  Director,  Alaska  Court  System                                                               
(ACS), explained that HB 114  was requested by the Alaska Supreme                                                               
Court in  order to clear up  a technical problem with  the way in                                                               
which police officers  are allowed to petition the  court for the                                                               
issuance of  a search warrant.   Right now, a police  officer who                                                               
needs a search  warrant has a couple  of options.  He  or she can                                                               
either  submit  an  affidavit  to the  court  that  explains  the                                                               
reasons for  the warrant, or  he/she can  appear in person.   And                                                               
that system  works just fine  as long  as the police  officer and                                                               
the judge  are in the  same community.   It doesn't work  so well                                                               
when  they're not  in the  same community.   The  current statute                                                               
allows  officers  to  fax  in affidavits  in  support  of  search                                                               
warrants  and [to  provide] telephonic  testimony  in support  of                                                               
search  warrants,  but  only  under  very  narrow  circumstances:                                                               
neither can be  done unless the item to be  searched is in danger                                                               
of being lost or destroyed.                                                                                                     
MR. WOOLIVER  relayed that this  current standard is one  that is                                                               
simply  unmet  in lots  of  circumstances.   A  common  situation                                                               
involves bootleg  liquor in  villages.   In Togiak,  for example,                                                               
village  police seized  a container  they had  reason to  believe                                                               
contained bootleg alcohol.   However, since they had  seized it -                                                               
they had it in  their possession - it was no  longer in danger of                                                               
being lost  or destroyed; therefore,  the officers  could neither                                                               
fax in  their application nor  testify telephonically  in support                                                               
of a  search warrant.   The current practice in  such situations,                                                               
he relayed,  is for the  officer in the field  to phone in  to an                                                               
Alaska State  Trooper (AST)  office in a  larger community  - for                                                               
example,  Dillingham  -  and  relay   the  circumstances  of  the                                                               
situation  to  a trooper  there,  whereupon  that trooper  either                                                               
fills out an affidavit and submits  it to a court or testifies in                                                               
person before the court.                                                                                                        
MR. WOOLIVER said that another  situation which occurs frequently                                                               
involves  the  road system.    He  offered  the following  as  an                                                               
example.   In a situation involving  a drug case in  Talkeetna, a                                                               
couple of Alaska State Troopers will  be called to a residence at                                                               
night, and when  they arrive, they detect the distinct  odor of a                                                               
"marijuana grow,"  perhaps in  a shed  by the  house.   Since the                                                               
troopers are  there on location, the  evidence in the shed  is no                                                               
longer  in  danger  of  being  lost or  destroyed.    The  common                                                               
practice in such  situations has been for one Trooper  to stay at                                                               
the  site -  in  Talkeetna, in  this example  -  while the  other                                                               
trooper  drives all  the way  into Anchorage  - because  [in this                                                               
example]  that's  where a  magistrate  is  available at  night  -                                                               
testifies before  the court,  gets a  search warrant,  and drives                                                               
all the way back to Talkeetna to  serve it.  In the meantime, the                                                               
other  officer,  and, if  necessary,  perhaps  other officers  as                                                               
well, must  stay on  site all  this time  to ensure  that nothing                                                               
happens to the  evidence.  Mr. Wooliver  characterized this delay                                                               
as a  pointless waste of time  for both the officer  driving into                                                               
Anchorage  and for  the officer  waiting  at the  site "for  four                                                               
Number 0362                                                                                                                     
MR. WOOLIVER  explained that  HB 114  does two  things.   One, it                                                               
would allow  faxed affidavits unconditionally.   He  relayed that                                                               
according to  one judge,  a fax  is just another  way to  get the                                                               
mail, and  whether the  affidavit that's  sitting on  the judge's                                                               
desk arrived because  someone delivered it in  person through the                                                               
court clerk or  because the court clerk picked it  up off the fax                                                               
machine  is  simply irrelevant  for  the  judge's purposes.    He                                                               
opined   that  this   feature  would   "help  solve   the  Togiak                                                               
situation"; the officers in Togiak  could directly fax the court,                                                               
rather than  having to go  through the AST office  in Dillingham.                                                               
The  other   change  proposed   by  HB   114  would   expand  the                                                               
circumstances  under  which  a   court  could  accept  telephonic                                                               
testimony.   This change  would affect cases  in which  the delay                                                               
that would  otherwise occur,  if they weren't  to do  that, would                                                               
interfere with  an ongoing  investigation.   The purpose  of that                                                               
change, he  remarked, is to  alleviate the need for  the troopers                                                               
in the Talkeetna example to drive all the way into Anchorage.                                                                   
MR.  WOOLIVER characterized  the changes  created by  HB 114  as,                                                               
"Two fairly small,  common-sense fixes to what  is admittedly not                                                               
a huge problem, but it seems  like a needless inefficiency in the                                                               
system."   He  relayed  that  in talking  with  the  AST and  the                                                               
Department  of Law  (DOL),  there  is one  change  that has  been                                                               
suggested for HB 114:  on page  1, line 11, after "in", delete "a                                                               
significant".   He suggested  that the  term, "a  significant" is                                                               
unnecessary, and that  it might possibly add more  confusion.  In                                                               
closing, he pointed out that HB  114 does not, in any way, change                                                               
the standard that  must be met before a judge  can issue a search                                                               
warrant.  All  HB 114 does is  allow a more efficient  way to get                                                               
the question  before the  judge so  that he/she  can rule  on the                                                               
merits of the application, he opined.                                                                                           
REPRESENTATIVE   GRUENBERG  asked   what  the   term  "or   other                                                               
appropriate means" refers to.                                                                                                   
MR. WOOLIVER replied that that  term is part of existing language                                                               
and has been in place since 1982.                                                                                               
Number 0556                                                                                                                     
REPRESENTATIVE  GRUENBERG made  a  motion to  adopt Amendment  1,                                                               
which reads [original punctuation provided]:                                                                                    
     Page 1, line 11:                                                                                                           
          Following first "in"                                                                                                  
          Delete "a significant"                                                                                            
CHAIR McGUIRE  asked whether  there were  any objections.   There                                                               
being no objection, Amendment 1 was adopted.                                                                                    
REPRESENTATIVE  COGHILL  asked  whether there  are  protocols  in                                                               
place   to  ensure   that  only   authorized  personnel   provide                                                               
telephonic testimony.                                                                                                           
MR. WOOLIVER  said that  there are  procedures in  place, adding,                                                               
"You have to be sworn in by the  court, and it is on the record."                                                               
He pointed out that this  method is already allowed under current                                                               
statute, though only in narrow circumstances.                                                                                   
The committee took an at-ease from 1:15 p.m. to 1:17 p.m.                                                                       
REPRESENTATIVE GARA  said he had thought  that in order to  get a                                                               
search warrant, a  law enforcement officer had  to either present                                                               
himself/herself personally  to a  judicial officer  "or do  it by                                                               
telephone."   "I  didn't  realize  that you  could  get a  search                                                               
warrant with just  a paper affidavit," he added.   He offered his                                                               
observation that HB 114 doesn't  appear to be "changing that rule                                                               
MR. WOOLIVER confirmed that currently,  a law enforcement officer                                                               
can  get a  search warrant  with an  affidavit without  having to                                                               
present in-person testimony before the court.                                                                                   
REPRESENTATIVE  GARA opined  that the  more checks  there are  to                                                               
ensure  that a  search warrant  is valid,  the better.   He  also                                                               
opined  that  the  current system  which  requires  an  Anchorage                                                               
police  officer to  come before  the court  to ask  for a  search                                                               
warrant is a good  one.  He said that he did not  want to make it                                                               
easier  for  police  officers  in   urban  areas  to  avoid  "the                                                               
testimony part."  The way HB  114 is currently written, he noted,                                                               
a telephonic  application is acceptable  if it can be  shown that                                                               
testifying in person will cause  delay."  But since testifying in                                                               
person  will always  cause  delay, he  remarked,  the only  thing                                                               
further that  needs to be done  is for the officer  to prove that                                                               
it  might also  interfere  with an  ongoing investigation,  which                                                               
could conceivably be claimed if the  officer is forced to wait in                                                               
court for a half hour.                                                                                                          
Number 0783                                                                                                                     
REPRESENTATIVE GARA made  a motion to adopt Amendment  2, on page                                                               
1, line 14, after "might",  to insert "materially".  He explained                                                               
that  this  change  would  force the  officer  seeking  a  search                                                               
warrant to show  that the delay "might  materially interfere with                                                               
an ongoing investigation".  Merely  because an officer has to sit                                                               
in court for a half hour is not sufficient, he opined.                                                                          
REPRESENTATIVE SAMUELS objected.                                                                                                
MR.  WOOLIVER remarked  that Amendment  2 might  create the  same                                                               
potential  problems that  the  term "a  significant"  posed.   He                                                               
offered that  judges tend to prefer  in-person testimony whenever                                                               
possible, and  suggested that they  will use their  discretion to                                                               
ensure  that  officers  in  urban  areas do  not  abuse  the  new                                                               
provisions of HB 114.                                                                                                           
REPRESENTATIVE SAMUELS  agreed with Mr. Wooliver.   Additionally,                                                               
he suggested that  "materially" would be open  to each individual                                                               
judge's interpretation.                                                                                                         
REPRESENTATIVE  GARA  said that  his  concern  is that  they  are                                                               
relaxing the  standards that apply  when the government  is being                                                               
given  the  authority to  obtain  a  search  warrant to  go  into                                                               
somebody's home.   He relayed that  he did not want  the court to                                                               
be able  to interpret HB  114 as a  "green light" to  start doing                                                               
"facsimile search-warrant  requests," which, he opined,  could be                                                               
the  way  the   bill  will  be  interpreted,   since  neither  "a                                                               
significant" nor  "materially" is included  in the language.   He                                                               
     I think it's a good  thing to require somebody to stare                                                                    
     somebody  in  the  eye  and   prove  that  they're  not                                                                    
     flinching when they  ask for something.   It works very                                                                    
     well  throughout the  criminal [justice]  system.   So,                                                                    
     ... I would  request that the term  "materially" be put                                                                    
     in there.   I would certainly state on  the record that                                                                    
     the  Talkeetna situation  -  the out-of-town  situation                                                                    
     that the [ACS] mentioned  - would constitute a material                                                                    
     interference.    And  to  the  extent  the  [ACS]  were                                                                    
     comforted  with  ...  the sponsor  of  the  amendment's                                                                    
     intention,  that we  do intend  to allow  the Talkeetna                                                                    
     folks and folks from out of  town who are trying to get                                                                    
     search  warrants in  a more  expeditious  way, that  we                                                                    
     agree  with   that,  and  that   even  with   the  term                                                                    
     "materially"  in  the bill,  we  agree  that that's  an                                                                    
     appropriate way to  get a search warrant.   But I'm not                                                                    
     thrilled about going any further than that.                                                                                
Number 1084                                                                                                                     
REPRESENTATIVE  COGHILL said  that  although he  tended to  agree                                                               
with  the discussion,  he didn't  know  that "putting  it in  the                                                               
language of this  bill will be important."  He  asked, if a court                                                               
were to see  an increase in faxed requests within  an urban area,                                                               
whether that would create enough of  a red flag within a district                                                               
that  the court  could  then start  requiring in-person  requests                                                               
instead.   He said that  he wants  assurance that the  ability to                                                               
fax in search warrant requests will not be abused.                                                                              
MR. WOOLIVER said that under  HB 114, faxed requests would always                                                               
be allowed,  in the same  way that written affidavits  are always                                                               
allowed  without the  need for  personal testimony;  it makes  no                                                               
difference to  the court whether  an affidavit is dropped  off or                                                               
faxed in.   He  explained that oftentimes,  there is  no personal                                                               
testimony on  an affidavit,  even under current  law, and  to the                                                               
extent  that the  court wants  personal testimony,  HB 114  would                                                               
allow  that to  occur via  the  telephone in  more cases,  though                                                               
still not in all cases.                                                                                                         
REPRESENTATIVE  ANDERSON   remarked  that  he  agrees   with  Mr.                                                               
Wooliver's comments  regarding the possible effects  of Amendment                                                               
2,   and  with   Representative   Samuels's  comments   regarding                                                               
Number 1230                                                                                                                     
MATTHEW  C. LEVEQUE,  Lieutenant,  Field Operations  Coordinator,                                                               
Division of  Alaska State Troopers,  Department of  Public Safety                                                               
(DPS), on the issue of Amendment 2, said:                                                                                       
     At this  point, a Trooper  can simply present  a search                                                                    
     warrant affidavit  and never see the  judge, and [there                                                                    
     are] a  number of  cases I can  remember where  I never                                                                    
     got  to  see  the  judge.   So  the  eyeball-to-eyeball                                                                    
     scrutiny doesn't  happen ..., in many  cases, even when                                                                    
     a trooper  or a police  officer is collocated -  as our                                                                    
     courthouse  in Palmer,  for  example,  and the  Trooper                                                                    
     post are -  virtually within a couple of  blocks of one                                                                    
     another.  So  I don't believe ...  that the eyeball-to-                                                                    
     eyeball  issue   is  significant  from   the  Troopers'                                                                    
     It does seem  that Representative Gruenberg's amendment                                                                    
     that  passed  with respect  to  deleting  the words  "a                                                                    
     significant" is  somewhat put aside  by adding  back in                                                                    
     "materially".    And  I  don't  believe  that  any  law                                                                    
     enforcement agency  is interested in trying  to abuse a                                                                    
     judge's  discretion, in  particular because  we're just                                                                    
     going to find that if  there are issues with the search                                                                    
     warrant, that  they'll come up at  evidentiary hearings                                                                    
     later.   And as a  matter of  fact, we would  prefer to                                                                    
     find  judges who  will  closely  scrutinize our  search                                                                    
     warrant  applications to  find flaws  so that  we don't                                                                    
     run down directions that ... are inappropriate.                                                                            
Number 1353                                                                                                                     
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),                                                                    
Department of Administration, said:                                                                                             
     As  previously testified,  this bill  would loosen  the                                                                    
     circumstances under  which a judge or  magistrate could                                                                    
     grant a search based  on telephonic testimony, and also                                                                    
     fully allow  all faxed  affidavits sent  in application                                                                    
     of  a  search  warrant, without  any  special  findings                                                                    
     whatsoever.   A police  officer in Anchorage  could fax                                                                    
     an affidavit,  and do  no more than  that, and  let the                                                                    
     application  lie  on the  faxed  affidavit  - no  other                                                                    
     showing required.  Under current  law, the norm is that                                                                    
     you require  a police  officer or  a Trooper  seeking a                                                                    
     search warrant  to deliver an original  sworn affidavit                                                                    
     or  mail  it,  or   appear  personally  to  testify  in                                                                    
     application  for a  search warrant.    This is  because                                                                    
     under  our  constitution,  we  require  that  a  search                                                                    
     warrant not issue  but on probable cause  and that it's                                                                    
     supported by  oaths or affirmation.   This is  based on                                                                    
     our  constitution -  Alaska and  federal constitutions;                                                                    
     in ours it's Article I, Section 14.                                                                                        
     An  exception was  carved out  in  the current  statute                                                                    
     that is  sought to  be amended by  this bill,  to allow                                                                    
     faxed affidavits  and telephonic testimony.   So, under                                                                    
     current  law,  you can  submit  a  faxed affidavit  and                                                                    
     telephonic testimony  instead of personal  testimony or                                                                    
     an  original  affidavit, but  only  when  the delay  in                                                                    
     appearing   personally   or  presenting   an   original                                                                    
     affidavit  will result  in the  loss or  destruction of                                                                    
     the  evidence   that  is  sought  to   be  searched  or                                                                    
     destroyed.    Now  this bill  seeks  to  eliminate  any                                                                    
     restriction whatsoever  on the use of  faxed affidavits                                                                    
     in seeking a  search warrant.  This  will likely result                                                                    
     in faxes becoming the norm,  not the exception, even in                                                                    
     urban  communities,  not  just in  the  targeted  rural                                                                    
     situations  identified, where  the officer  seeking the                                                                    
     warrant   and   the   magistrate   are   in   different                                                                    
Number 1452                                                                                                                     
MS. WILSON continued:                                                                                                           
     In our  [Alaska Rules of Criminal  Procedure] governing                                                                    
     grand jury  proceedings ... --  and the reason  I bring                                                                    
     them up is  because they are similar  to search warrant                                                                    
     proceedings  in that  they  are  one-sided; there's  no                                                                    
     right for  the defendant or  the owner of  the property                                                                    
     to be searched to participate  in the proceedings or to                                                                    
     present his  or her  arguments or evidence  ....   In a                                                                    
     grand jury  situation, telephonic testimony  is allowed                                                                    
     only when the  witness that is speaking -  to testify -                                                                    
     telephonically would  be required  to travel  more than                                                                    
     50  miles  to the  location  where  the grand  jury  is                                                                    
     sitting,  or they  live in  a place  from which  people                                                                    
     customarily travel by air to  the place where the grand                                                                    
     jury is sitting.                                                                                                           
     Limiting the  acceptance of  both faxed  affidavits and                                                                    
     telephonic testimony in support  of a search warrant to                                                                    
     a  similar  situation  as presented  in  a  grand  jury                                                                    
     context -  with the  added requirements that  the delay                                                                    
     in  obtaining a  search would  otherwise result  if the                                                                    
     officer had  to appear  personally or send  an original                                                                    
     affidavit,  and that  that delay  would  result in  the                                                                    
     loss or  destruction of  property or  interference with                                                                    
     an  ongoing  investigation  - would  certainly  keep  a                                                                    
     tighter  rein on  the process  for  obtaining a  search                                                                    
     warrant than suggested in this bill.                                                                                       
     Now, why is the Public  Defender Agency concerned?  And                                                                    
     why should  there be  concern, on  your part,  with the                                                                    
     process  for  obtaining  a   search  warrant?    [It's]                                                                    
     because  it's  very   difficult  to  suppress  evidence                                                                    
     seized pursuant  to a search  warrant.  They  are given                                                                    
     preference of validity, and a  great deference is given                                                                    
     to a  magistrate's determination of probable  cause for                                                                    
     the issuance  of a  search warrant.   A  search warrant                                                                    
     will not be overturned unless  there is an abuse of the                                                                    
     magistrate's  discretion, and  the  evidence is  always                                                                    
     viewed  in  a light  most  favorable  to upholding  the                                                                    
     search  warrant.   So  there's  definitely a  deference                                                                    
     given to a search warrant.                                                                                                 
Number 1569                                                                                                                     
MS. WILSON went on to say:                                                                                                      
     Now, the  [PDA] has  a concern with  the scope  of this                                                                    
     bill because  it seems to  be broader than  the problem                                                                    
     that was identified specific to  Bush areas, and it may                                                                    
     not  be that  serious of  a problem,  and the  scope of                                                                    
     this bill may be larger  than that needed. ... There is                                                                    
     also  a  concern  that  if   it  were  so  serious,  we                                                                    
     certainly probably  would have  heard and  had proposed                                                                    
     legislation  from  [the  Department  of  Public  Safety                                                                    
     (DPS)]  representing   the  Troopers  and   the  police                                                                    
     officers  involved, [rather  than from  just the  ACS].                                                                    
     Would  there be  more  challenges  under this  proposed                                                                    
     bill  if it  were  to  pass?   Possibly,  yes, but  the                                                                    
     challenges would certainly be difficult.                                                                                   
     Under  this exact  same statute,  to suppress  evidence                                                                    
     seized or searched under a  search warrant issued under                                                                    
     these special circumstances proposed,  which would be a                                                                    
     fax or  one telephonically, the statute  requires there                                                                    
     has to  be a finding  of bad  faith.  And  that's under                                                                    
     [subsection] (f)  of this  statute, ...  [AS 12.35.015,                                                                    
     which]  provides that  absent a  finding of  bad faith,                                                                    
     evidence obtained  under a search warrant  issued under                                                                    
     this section is not subject  to a motion to suppress on                                                                    
     the ground  that the circumstances did  not support its                                                                    
     issuance under  (a) of  this section.   And (a)  is the                                                                    
     [subsection] that's being proposed to be amended.                                                                          
     But there certainly may be  situations where, in a fax,                                                                    
     let's  say, where  let's say  one  or more  pages of  a                                                                    
     faxed affidavit that wasn't  paginated are not received                                                                    
     by the  courts, but  yet the  search warrant  is issued                                                                    
     based upon the  pages received.  It may  not have been,                                                                    
     had all the  pages been received.  But if  there was no                                                                    
     finding of  bad faith,  does the search  warrant stand?                                                                    
     ... An original  affidavit has that seal  of the notary                                                                    
     that is very obvious and  visible.  A faxed [affidavit]                                                                    
     would  not have  that authenticity.   So  there may  be                                                                    
     challenges to  the authenticity of the  faxed affidavit                                                                    
     on the question  of who prepared it,  [and] whether ...                                                                    
     the original matches the one that was sent.                                                                                
     There also  may be ... challenges  to the circumstances                                                                    
     that  supported   the  testimony  ...  -   the  special                                                                    
     procedures of  the telephonic testimony.   For example,                                                                    
     would the personal testimony have  really resulted in a                                                                    
     delay in obtaining or executing  a search warrant?  And                                                                    
     would the delay really  have interfered with an ongoing                                                                    
     investigation?  And from the  description of wanting to                                                                    
     modify  it by  the  word  ["materially"], it  certainly                                                                    
     raises  questions  to   having  most  applications  for                                                                    
     search   warrants,   even   in   Anchorage,   submitted                                                                    
     telephonically,  because,  arguably, any  inconvenience                                                                    
     in  going to  the courthouse  could arguably  result in                                                                    
     interfering  with an  ongoing investigation.   So  that                                                                    
     language, also, is pretty broad.                                                                                           
Number 1703                                                                                                                     
MS. WILSON concluded:                                                                                                           
     So while the [PDA] recognizes  that it may be difficult                                                                    
     and challenging, sometimes, for  an officer to obtain a                                                                    
     search warrant in a remote  location when the community                                                                    
     is away from the  magistrate, this proposed legislation                                                                    
     ... seems too broad  for the narrow problem identified,                                                                    
     and may  not be necessary,  especially in light  of the                                                                    
     overarching constitutional rights  and protections that                                                                    
     are  involved in  protecting  people from  unreasonable                                                                    
     searches  and seizures.    I thank  you  very much  for                                                                    
     allowing me to testify ....                                                                                                
REPRESENTATIVE GARA  withdrew Amendment  2.   He offered  that it                                                               
does not  do what  he intended it  to do.   In addition,  he said                                                               
that he  no longer supports the  bill because it doesn't  do what                                                               
it's intended to do.  He elaborated:                                                                                            
     I think  the bill could  be much better  drafted, where                                                                    
     the  perceived problem  relates  to out-of-town  police                                                                    
     officers   and    the   inconvenience    or   sometimes                                                                    
     impossibility of  getting into town  in time.   And I'm                                                                    
     sympathetic to  that, and  I think  we could  deal with                                                                    
     that  problem, but  I don't  think this  bill does  it.                                                                    
     This  bill is  written too  broadly.   So my  amendment                                                                    
     doesn't solve the  problem, but I don't  think the bill                                                                    
     solves the problem.                                                                                                        
CHAIR McGUIRE asked Mr. Wooliver  to comment on the language used                                                               
with regard  to grand  juries as  mentioned by  Ms. Wilson.   She                                                               
said she  likes that language,  and opined that perhaps  it might                                                               
be a better solution to the problem.                                                                                            
MR. WOOLIVER remarked  that he has not looked "at  the grand jury                                                               
language" and  thus does  not know what  such an  amendment might                                                               
necessarily look like.   He reiterated that  since affidavits can                                                               
currently be mailed in, from  the court's perspective it makes no                                                               
difference whether an  affidavit has been mailed in  or faxed in.                                                               
The constitutional standard for  issuing a search warrant doesn't                                                               
change; probable cause  must still be shown.  He  said that he is                                                               
not aware that  lost fax pages are a problem,  and indicated that                                                               
he does  not see  the possibility  of not  having the  final page                                                               
with  the  signature  and  the  notary  as  being  a  significant                                                               
CHAIR  McGUIRE asked:    "Is  the bill  designed  to  get at  the                                                               
problem that  you stated?   Or is it  really designed to  open up                                                               
the law  to allow for  faxes within an  urban area?"   She opined                                                               
that this should be decided, adding  that it is either one way or                                                               
the other.                                                                                                                      
Number 1874                                                                                                                     
MR. WOOLIVER said that HB 114 would  do both.  It would allow any                                                               
faxed  affidavit,  just as  any  affidavit  can  be mailed.    He                                                               
suggested that when  technology improves, [the ACS]  will be back                                                               
before  the   legislature  petitioning   for  the   allowance  of                                                               
electronic transmissions.  He noted  that the provision in HB 114                                                               
regarding telephonic testimony  is a minor change  to the current                                                               
statute,  which  is  more  narrowly   tailored  to  accept  other                                                               
CHAIR McGUIRE,  on the issue  of faxed affidavits,  remarked that                                                               
the concern  of many revolves  around the fact that  an affidavit                                                               
involves  minimal   steps.    The  question   being  raised,  she                                                               
observed,  is,  as  a  policy,   does  the  legislature  want  to                                                               
eliminate that  extra step  of testifying  in person,  which some                                                               
believe is one  more check to ensure that people  are not abusing                                                               
the system.   Chair McGuire said that she agrees  with Ms. Wilson                                                               
with regard  to the difficulty  of suppressing  evidence obtained                                                               
by  a search  warrant.    Chair McGuire  said  that her  original                                                               
understanding of  the bill  was that it  would address  a problem                                                               
encountered in rural areas; she  did not understand that it would                                                               
open up, to  urban areas, a method of faxing  in affidavits.  She                                                               
opined that  faxing in affidavits  will become the norm,  not the                                                               
exception:   "Why  would you  take  the time  to go  down to  the                                                               
courthouse with the original affidavit when you don't have to?"                                                                 
REPRESENTATIVE  SAMUELS  said that  to  him,  there would  be  no                                                               
difference between faxing in an affidavit and mailing it.                                                                       
REPRESENTATIVE   GRUENBERG  said   that  although   he  generally                                                               
supports  HB  114,  he  does  see some  problems  with  it.    He                                                               
recommended that the bill be worked  on a bit and changed so that                                                               
there  is  one  provision  dealing with  affidavits  and  another                                                               
provision  dealing   with  oral   testimony.    With   regard  to                                                               
affidavits, he  relayed that he  has had  a lot of  experience in                                                               
his civil practice dealing with  faxed documents, "and it's quite                                                               
an issue."  There can be  problems with faxed documents, he said,                                                               
adding that  "you can  have a  lengthy affidavit  of 25  pages or                                                               
[more]  ... and  [with]  somebody just  leafing  through it  very                                                               
quickly  for the  purpose  of ...  an  emergency search  warrant,                                                               
which often have to be done quickly, they could miss a page."                                                                   
REPRESENTATIVE GRUENBERG  also relayed that he  has litigated the                                                               
issue of  the validity of  a signature.  Sometimes  the signature                                                               
is light, or is  written in blue or red ink,  and it doesn't come                                                               
through very well.  So on  this point, with regard to a provision                                                               
dealing  with affidavits,  he said  that he  would like  the bill                                                               
redrafted  to require  the judge  to  make some  findings on  the                                                               
acceptance of the  faxed affidavit in place of  the original, and                                                               
to require  that the  original affidavit  be filed  as well.   In                                                               
this way, it  can later be verified by the  attorneys or during a                                                               
review in  court that the faxed  affidavit is in fact  a true and                                                               
complete copy of the original  and that the signature is genuine.                                                               
He  remarked  that  he  has  had  a  trial  regarding  whether  a                                                               
signature was forged.                                                                                                           
REPRESENTATIVE  GRUENBERG,  on  the   issue  of  oral  testimony,                                                               
explained that  the time constraints  regarding a grand  jury are                                                               
much different; in a grand  jury, jurists are determining whether                                                               
there is probable  cause to indict a person.   On the other hand,                                                               
with a search warrant, there can be  a real emergency.  "So I see                                                               
the time exigencies being somewhat different," he concluded.                                                                    
Number 2197                                                                                                                     
CHAIR  McGUIRE  announced  that   for  the  purpose  of  creating                                                               
acceptable substitute language,  HB 114 would be  [held over and]                                                               
assigned to a subcommittee  consisting of Representative Coghill,                                                               
Samuels, and Gruenberg.                                                                                                         

Document Name Date/Time Subjects