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REFERENCE TITLE: search warrants; audible notice; requirements. |
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State of Arizona House of Representatives Fifty-fifth Legislature First Regular Session 2021
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HB 2751 |
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Introduced by Representatives Hernandez A: Andrade, Bolding, Cano, Chávez, Dalessandro, Espinoza, Fernandez, Hernandez D, Hernandez M, Lieberman, Longdon, Meza, Pawlik, Powers Hannley, Rodriguez, Salman, Schwiebert, Sierra, Stahl Hamilton, Teller, Terán
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AN ACT
amending sections 13-3915, 13-3916 and 13-3922, Arizona Revised Statutes; relating to search warrants.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-3915, Arizona Revised Statutes, is amended to read:
13-3915. Issuance; form of warrant; duplicate original warrant; telefacsimile
A. If the magistrate is satisfied that probable cause for the issuance of the warrant exists, the magistrate shall issue a search warrant commanding a search by any peace officer of the person or place specified, for the items described.
B. On a reasonable showing that an announced entry to execute the warrant would endanger the safety of any person or would result in the destruction of any of the items described in the warrant, the magistrate shall authorize an unannounced entry.
C. B. The warrant shall be in substantially the following form:
County of ___________________, state of Arizona.
To any peace officer in the state of Arizona:
Proof by affidavit having been this day made before me by (naming every person whose affidavit has been taken) there is probable cause for believing that (stating the grounds of the application) according to section 13-3912, you are therefore commanded in the daytime (or in the night, as the case may be, according to section 13-3917) to make a search of (naming persons, buildings, premises or vehicles, describing each with reasonable particularity) for the following property, persons or things: (describing such with reasonable particularity), and if you find such or any part thereof, to retain such in your custody subject to section 13-3920.
Given under my hand or direction and dated _____________ (judge, justice of the peace or magistrate.)
D. C. The magistrate may orally authorize a peace officer to sign the magistrate's name on a search warrant if the peace officer applying for the warrant is not in the actual physical presence of the magistrate. This warrant shall be called a duplicate original search warrant and shall be deemed a search warrant for the purposes of this chapter. In such cases, the magistrate shall cause to be made an original warrant and shall enter the exact time of issuance of the duplicate original warrant on the face of the original warrant. Upon On the return of the duplicate original warrant, the magistrate shall file the original warrant and the duplicate original warrant as provided in section 13-3923.
E. D. A magistrate may affix the magistrate's signature on a telefacsimile of an original warrant. The telefacsimile of the original warrant is deemed to be a search warrant for the purposes of this chapter. On return of the telefacsimile of the original warrant, the magistrate shall file the original warrant and the telefacsimile of the original warrant as provided in section 13-3923.
Sec. 2. Section 13-3916, Arizona Revised Statutes, is amended to read:
13-3916. Service of warrant; audible notice; breaking and entering to execute
A. A search warrant may be served by any peace officer but by no other person except in aid of an officer engaging in service of the warrant.
B. Before executing a search warrant, a peace officer who is recognizable and identifiable as a uniformed peace officer shall provide audible notice of the officer's authority and purpose. The audible notice must be reasonably expected to be heard by the occupants of the place to be searched.
B. C. An officer may break into a building, premises or vehicle or any part of a building, premises or vehicle, to execute the warrant when:
1. After providing audible notice of the officer’s authority and purpose, the officer receives no response within a reasonable time.
2. After providing audible notice of the officer’s authority and purpose, the officer is refused admittance.
3. A magistrate has authorized an unannounced entry pursuant to section 13-3915.
4. The particular circumstances and the objective articulable facts are such that a reasonable officer would believe that giving notice of the officer's authority and purpose before entering would endanger the safety of any person or result in the destruction of evidence.
D. After entering and securing the place to be searched but before undertaking any search or seizure pursuant to the search warrant, the peace officer EXecuting the search warrant shall provide a copy of the search warrant to the person to be searched or the owner of the place to be searched or, if the owner is not present, to any occupant of the place to be searched. If the place to be searched is unoccupied, the peace officer executing the search warrant shall leave a copy of the search warrant suitably affixed to the place to be searched.
C. E. A peace officer executing a search warrant may seize any property discovered in the course of the execution of the warrant if the officer has reasonable cause to believe that the item is subject to seizure under section 13-3912, even if the property is not enumerated in the warrant.
D. F. A peace officer executing a search warrant may make or cause to be made photographs, measurements, impressions or scientific tests.
E. G. A peace officer executing a search warrant directing a search of any premises or a vehicle may search any person in the premises or vehicle if either of the following applies:
1. It is reasonably necessary to protect himself or others from the use of any weapon that may be concealed upon on the person.
2. It reasonably appears that property or items enumerated in the search warrant may be concealed upon on the person.
Sec. 3. Section 13-3922, Arizona Revised Statutes, is amended to read:
13-3922. Controverting grounds of issuance; procedure; restoration of property
A. If an owner of seized property controverts the grounds on which the warrant was issued, the magistrate shall proceed to take testimony relative thereto unless a proceeding pursuant to chapter 39 of this title is or has been initiated relating to the same property interest. The testimony given by each witness shall be reduced to writing and certified by the magistrate. If it appears that the property taken is not the same as that described in the warrant and is not within section 13-3916, subsection C, D or E, F or G or section 13-3925, subsection C, or that probable cause does not exist for believing the items are subject to seizure, the magistrate shall cause the property to be restored to the person from whom it was taken if the property is not such that any interest in it is subject to forfeiture or its possession would constitute a criminal offense.
B. Any order under this section as to a property interest is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of that person in all actions pursuant to this title. Other orders are appealable, if permitted by the Arizona rules of civil procedure.
C. No stay may issue on the forfeiture of seized property or its use in an action pursuant to this title while contravention of the warrant is being litigated.