Washington State

House of Representatives

Office of Program Research

BILL

ANALYSIS

Judiciary Committee

HB 2235

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Background:

Article 1, Section 7 of the Washington Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." The privacy protection embodied in Article 1, Section 7 limits the government's authority to conduct searches and seizures. As a general rule, a search or seizure may be conducted only pursuant to a warrant that is based upon probable cause and issued by a detached and neutral magistrate.

Magistrates are judicial officers with the power to issue warrants. By statutory definition, any justice of the supreme court, or judge of the court of appeals, superior court, district court, or municipal court is a magistrate. Magistrates of courts with statewide jurisdiction may issue a warrant to be executed anywhere in the state. The warrant issuing authority of a district or municipal court magistrate is limited to warrants that will be executed within the district or municipal court's jurisdiction.

The requirements and procedures for issuance of warrants are outlined in court rules. These rules provide that a warrant may be issued to search for and seize: (1) evidence of a crime; (2) contraband, the fruits of crime, or things otherwise criminally possessed; (3) weapons or other things by means of which a crime has been committed or reasonably appears about to be committed; or (4) a person for whose arrest there is probable cause, or who is unlawfully restrained. A search warrant may be issued only if the court determines there is probable cause for the issuance of a warrant. When the court is satisfied that probable cause exists, the court must issue a warrant identifying the property or person and naming or describing the person, place, or thing to be searched. The court may issue the warrant directly or may direct an authorized individual to affix the court's signature to the warrant.

An application for a warrant must be supported by a statement establishing the grounds upon which the warrant is based. This statement may be in the form of an affidavit, sworn testimony (which may be delivered telephonically and electronically recorded), or through a certification or declaration. Affidavits and sworn testimony are statements made under oath that place the applicant, who is a police officer or prosecutor, under penalty of perjury when supplying the information that serves as the basis of a warrant. In order for an unsworn certification or declaration to support a warrant application, it must meet the general statutory requirements that give unsworn statements the force and effect of sworn statements. These requirements are that the certification or declaration is in the form of a writing that recites that the statement is certified or declared to be true under penalty of perjury, and is subscribed to by signature.

Summary of Bill:

The geographic scope of local magistrates' power to issue search warrants is expanded. Any magistrate may issue a search warrant for any person or evidence located anywhere within the state.

Statutory language is adopted that tracks the court rule descriptions of property and persons for which a warrant may be issued. Additional language is included to permit application and issuance of a warrant by electronic or other alternative means. A warrant may be applied for by telephone, email, or other reliable method. Additionally, the magistrate may use telephone, email, or other reliable method to communicate permission to another person to affix the magistrate’s signature to the warrant.

The means are expanded by which a certification or declaration may be subscribed to in order to place the person executing the document under penalty of perjury. In addition to subscription by signature, a person may subscribe to an unsworn statement by digital signature or electronic signature. If the person is an attorney, he or she may subscribe electronically in the manner described in the court rule governing electronic filing. If the person is a law enforcement officer, the subscription requirement is satisfied by affixing or logically associating the person’s full name, department or agency, and badge or personnel number to an electronically submitted document from an electronic device that is owned, issued, or maintained by a law enforcement agency.