BILL ANALYSIS Ó AB 2284 Page 1 Date of Hearing: April 17, 2012 Counsel: Milena Blake ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 2284 (Chesbro) - As Amended: April 11, 2012 SUMMARY : Imposes an additional civil penalty for cultivating marijuana within a state park, and allows law enforcement to stop any vehicle transporting agricultural irrigation supplies into a state park without a warrant. Specifically, this bill : 1)States that as a result of the closure and lack of staffing at numerous state parks, those parks and other resource lands have become infested with illegal marijuana cultivation. 2)States that the illegal marijuana growing sites create a hazard for those who recreate on these public resource lands. Some of the most recent events that showed the relative danger were the murder of Matthew Coleman and Fort Bragg City Council Member Jere Melo who surveyed the forest for illegal marijuana growth in connection with local law enforcement and were killed in the course of their jobs. 3)States that marijuana grow sites often are constructed without regard for the environment or wildlife. 4)States that because the illegal marijuana cultivation operations are set up deep in resource land, all the equipment is brought in and constructed without consideration for the environmental effects. 5)States that many illegal marijuana grow sites include water diversion with irrigation pipes, generators, and batteries to power the cultivation equipment and camp, illegal damming and water diversion, and pesticides and insecticides that are sometimes added directly to streams and ponds. 6)Requires that an individual who is found to have violated specified sections of the Fish and Game Code in connection with marijuana cultivation on a unit of the state park system, AB 2284 Page 2 state forest, or timberland, shall be liable for a civil penalty in the following amounts: a) Not more than $10,000 for a person who violates Fish and Game Code section 1602 in connection with the cultivation of marijuana; b) Not more than $40,000 for a person who violates Fish and Game Code section 5650 in connection with the cultivation of marijuana; or, c) Not more than $40,000 for a person who violates Fish and Game Code section 5652 in connection with the cultivation of marijuana. 7)States that a civil penalty imposed under this section is in addition to any other penalty imposed. 8)States that the civil penalties collected pursuant to this section are not considered to be fines or forfeitures, and shall be apportioned as follows: a) 30% must be distributed to the county in which the violation was committed. The county board of supervisors must first use any revenues from those penalties to reimburse the costs incurred by the district attorney or city attorney investigating and prosecuting the violation. b) 30% must be distributed to the lead investigating agency to be used to reimburse the cost of any investigation directly related to the violations described in this section. c) 40% must be distributed to the primary investigating agency for the reimbursement of all reasonable costs associated with the clean up or abatement of the marijuana cultivation site. 9)Allows the California Highway Patrol, sheriff or deputy sheriff to stop any vehicle transporting agricultural irrigation supplies that are in plain view within the boundaries of a state park, state forest, or federal forest or timberland, and inspect the bills of lading, shipping or delivery papers, or other evidence to determine whether the driver is in legal possession of the load and take possession AB 2284 Page 3 of those supplies if the officer has reasonable belief that the driver is not in legal possession of those supplies. 10)Requires the sheriff to receive and provide for the safekeeping of any agricultural irrigation supplies seized, and proceed, with the California Highway Patrol, with an investigation and its legal disposition. 11)Defines "agricultural irrigation supplies" as including agricultural irrigation water bladder, drip irrigation tubing, and fertilizer. 12)Defines "timberland" as privately owned land, or land acquired for state forest purposes, which is devoted to and used for growing and harvesting timber, or for growing and harvesting timber and compatible uses, and which is capable of growing an average annual volume of wood fiber of at least 15 cubic feet per acre. EXISTING LAW : 1)Allows a member of the CHP to stop any vehicle transporting any timber products, livestock, poultry, farm produce, crude oil, petroleum products, or inedible kitchen grease, and inspect the bills of lading, shipping or delivery papers, or other evidence to determine whether the driver is in legal possession of the load, and, upon reasonable belief that the driver of the vehicle is not in legal possession, shall take custody of the vehicle and load and turn them over to the custody of the sheriff of the county in which the timber products, livestock, poultry, farm produce, crude oil, petroleum products, or inedible kitchen grease, or any part thereof, is apprehended. ÝVehicle Code Section 2810(a).] 2)States that the sheriff shall receive and provide for the care and safekeeping of the apprehended timber products, livestock, poultry, farm produce, crude oil, petroleum products, or inedible kitchen grease, or any part thereof, and immediately, in cooperation with the department, proceed with an investigation and its legal disposition. ÝVehicle Code Section 2810(b).] FISCAL EFFECT : Unknown COMMENTS : AB 2284 Page 4 1)Author's Statement : According to the author, "Illegal marijuana cultivation on resource land has become a significant problem in my district and many other parts of the state. Growing marijuana on state and private resource land presents a public safety and environmental hazard. People can no longer rely on these lands as a safe place to recreate and large scale damage is being done to the immediate grow site and surrounding areas. Law Enforcement Agencies have limited resources like so many other services in this economic climate. The focus of many agencies finite resources have shift to marijuana enforcement from their original mission. This bill would give law enforcement agencies the tools to prevent the establishment of illegal marijuana grow sites on resource land and to recuperate some of the resources spent to investigate, eradicate and clean up grow sites." 2)Background : According to information provided by the author, "This bill was developed as a result of the ongoing problems with illegal cultivation of marijuana on resource land (including State Parks, State Forests, Federal Parks and Timberland). Law enforcement agencies are not able to stop vehicles entering resource land to set up marijuana cultivation sites even if they see the individual entering with all the materials to do so. This bill would allow county sheriffs to pull over people entering state parks with agricultural supplies and ask them questions about their final destination. The main goal is to intercept these individuals before they are able to set up grow sites. "Additionally, this bill would increase civil penalties for three commonly pressed charges in conjunction with marijuana cultivation. Increasing these fines would allow that law enforcement agencies responsible for investigation, enforcement and clean-up to recuperate the costs spent in response to illegal marijuana growth on state parks. "Law enforcement agencies dedicate many hours to building cases against those responsible for grow sites and often are not success in prosecuting those cases. Additionally, they are never able to successfully try suspects in many cases. All of these factors combined leave many departments at a significant loss when it comes to illegal marijuana cultivation." 3)Vehicle Stops Are "Seizures" and Must Comport with the Fourth AB 2284 Page 5 Amendment : The United States Supreme Court has stated, "The Fourth Amendment guarantees 'the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of this provision. An automobile stop is thus subject to the constitutional imperative that it not be 'unreasonable' under the circumstances." ÝWhren v. United States, 517 U.S. 806, 809-810 (U.S. 1996).] 4)When Vehicle Stops Are Permitted Without a Warrant or Probable Cause : a) Immigration Stops : In some circumstances, the court has found that vehicle stops limited in scope and duration are permitted based on less than probable cause. Based on the circumstances involved in enforcing immigration laws, the Supreme Court has held that immigration stops that take place near the international border and are limited in scope and duration may be based on reasonable suspicion that the occupants of the vehicle may be in violation of immigration laws. However, the Court stated, "We are unwilling to let the Border Patrol dispense entirely with the requirement that officers must have a reasonable suspicion to justify roving-patrol stops." ÝUnited States v. Brignoni-Ponce, 422 U.S. 873, 881-882 (U.S. 1975).] The Court went on to find that the sole fact that someone in a vehicle appears to be of Mexican ancestry does not amount to reasonable suspicion of a crime so as to justify a traffic stop: "In this case, the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry of the occupants. We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens. At best, the officers had only a fleeting glimpse of the persons in the moving car, illuminated by headlights. Even if they saw enough to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country. Large numbers of native-born and naturalized citizens have AB 2284 Page 6 the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens. The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens." ÝUnited States v. Brignoni-Ponce, 422 U.S. 873, 885-887 (1975).] This bill allows law enforcement to stop a vehicle based solely on the fact that the vehicle contains agricultural irrigation supplies and inquire about the purpose and destination of those supplies. In other words, this bill authorizes these law enforcement officers to pull over a vehicle not based on probable cause, or even on reasonable suspicion of any wrongdoing, but solely based on the fact that the vehicle contained agricultural irrigation supplies. To allow police to affect a vehicle stop based on a single fact consistent with legal behavior as it is with illegal behavior, i.e., the transportation of agricultural irrigation supplies in the vehicle, appears to violate the Fourth Amendment just as does stopping a vehicle based only on the presence a person who appears to be of Mexican ancestry. Neither amounts to reasonable suspicion, much less probable cause, of any wrongdoing. b) Administrative Searches : Existing law, limited as it is to allowing only CHP officers to stop vehicles carrying timber products, livestock, poultry, farm produce, crude oil, petroleum products, or inedible kitchen grease, might present a closer constitutional question than the significant expansion proposed by this bill, although the constitutionality of the existing statute is by no means clear. No court decision has ever been published on the validity of that statute. The Supreme Court has recognized an exception to the warrant requirement for 'administrative searches' of business premises in heavily regulated businesses. "An administrative inspection is the inspection of business premises conducted by authorities responsible for enforcing a pervasive regulatory scheme; for example, unannounced inspection of a mine for compliance with health and safety standards." ÝWhren v. United States, 517 U.S. 806, 812 (1996).] AB 2284 Page 7 The three-part test for when a warrantless search might be justified under the administrative search exception was articulated in New York v. Burger as follows: "Because the owner or operator of commercial premises in a 'closely regulated' industry has a reduced expectation of privacy, the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search, see O'Connor v. Ortega, 480 U.S. 709, 741 (1987) (dissenting opinion), have lessened application in this context. Rather, we conclude that, as in other situations of 'special need,' see New Jersey v. T. L. O., 469 U.S. 325, 353 (1985) (opinion concurring in judgment), where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment. "This warrantless inspection, however, even in the context of a pervasively regulated business, will be deemed to be reasonable only so long as three criteria are met. First, there must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made. "Second, the warrantless inspections must be 'necessary to further Ýthe] regulatory scheme.' For example, in Dewey we recognized that forcing mine inspectors to obtain a warrant before every inspection might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act -- to detect and thus to deter safety and health violations. "Finally, 'the statute's inspection program, in terms of the certainty and regularity of its application, Ýmust] providÝe] a constitutionally adequate substitute for a warrant.' Ibid. In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the AB 2284 Page 8 statute must be 'sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.' In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be 'carefully limited in time, place, and scope.' " ÝNew York v. Burger, 482 U.S. 691, 702-703 (1987).] While warrantless administrative searches of certain business premises under certain circumstances have been authorized under the administrative search exception, the Supreme Court has long held that the Fourth Amendment does not permit police to be given unfettered discretion to perform vehicle stops, even just to check for driver's license and vehicle registration, without some evidence of wrongdoing: "An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one's home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles. Cf. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (warrant required for federal inspection under interstate commerce power of health and safety of workplace); See v. Seattle, 387 U.S. 541 (1967) (warrant required for inspection of warehouse for municipal fire code violations); Camara v. Municipal Court, 387 U.S. 523 (1967) (warrant required for inspection of residence for municipal fire code violations). AB 2284 Page 9 "Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. ÝDelaware v. Prouse, 440 U.S. 648, 663 (1979).] c) Sobriety Checkpoints : The Supreme Court has found that warrantless searches of a limited nature may take place in the form of sobriety checkpoints. The Court, however, distinguished the level of intrusion involved in a sobriety checkpoint from that in a "roving stop": "Comparing checkpoint stops to roving patrol stops considered in prior cases, we view checkpoint stops in a different light because the subjective intrusion -- the generating of concern or even fright on the part of lawful travelers is appreciably less in the case of a checkpoint stop. In United States v. Ortiz, 422 U.S. 891 (1975), we noted: 'The circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.' 422 U.S., at 894-895.' " Martinez-Fuerte, 428 U.S., at 558. ÝMich. Dep't of State Police v. Sitz, 496 U.S. 444, 452-453 (1990).] Furthermore, the Supreme Court provided specific guidelines that law enforcement must follow to ensure that the AB 2284 Page 10 sobriety checkpoints are not subjective in who they capture and are targeted specifically to areas where driving under the influence is a particular problem. For instance, officers may not randomly select cars. Officers must select every fifth car or tenth car and decide the number in advance, which prevents officers from subjectively selecting vehicles based on personal opinions that could relate to something as simple as the racial background, age Ó AB 2284 Page 1 Date of Hearing: April 17, 2012 Counsel: Milena Blake ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 2284 (Chesbro) - As Amended: April 11, 2012 SUMMARY : Imposes an additional civil penalty for cultivating marijuana within a state park, and allows law enforcement to stop any vehicle transporting agricultural irrigation supplies into a state park without a warrant. Specifically, this bill : 1)States that as a result of the closure and lack of staffing at numerous state parks, those parks and other resource lands have become infested with illegal marijuana cultivation. 2)States that the illegal marijuana growing sites create a hazard for those who recreate on these public resource lands. Some of the most recent events that showed the relative danger were the murder of Matthew Coleman and Fort Bragg City Council Member Jere Melo who surveyed the forest for illegal marijuana growth in connection with local law enforcement and were killed in the course of their jobs. 3)States that marijuana grow sites often are constructed without regard for the environment or wildlife. 4)States that because the illegal marijuana cultivation operations are set up deep in resource land, all the equipment is brought in and constructed without consideration for the environmental effects. 5)States that many illegal marijuana grow sites include water diversion with irrigation pipes, generators, and batteries to power the cultivation equipment and camp, illegal damming and water diversion, and pesticides and insecticides that are sometimes added directly to streams and ponds. 6)Requires that an individual who is found to have violated specified sections of the Fish and Game Code in connection with marijuana cultivation on a unit of the state park system, AB 2284 Page 2 state forest, or timberland, shall be liable for a civil penalty in the following amounts: a) Not more than $10,000 for a person who violates Fish and Game Code section 1602 in connection with the cultivation of marijuana; b) Not more than $40,000 for a person who violates Fish and Game Code section 5650 in connection with the cultivation of marijuana; or, c) Not more than $40,000 for a person who violates Fish and Game Code section 5652 in connection with the cultivation of marijuana. 7)States that a civil penalty imposed under this section is in addition to any other penalty imposed. 8)States that the civil penalties collected pursuant to this section are not considered to be fines or forfeitures, and shall be apportioned as follows: a) 30% must be distributed to the county in which the violation was committed. The county board of supervisors must first use any revenues from those penalties to reimburse the costs incurred by the district attorney or city attorney investigating and prosecuting the violation. b) 30% must be distributed to the lead investigating agency to be used to reimburse the cost of any investigation directly related to the violations described in this section. c) 40% must be distributed to the primary investigating agency for the reimbursement of all reasonable costs associated with the clean up or abatement of the marijuana cultivation site. 9)Allows the California Highway Patrol, sheriff or deputy sheriff to stop any vehicle transporting agricultural irrigation supplies that are in plain view within the boundaries of a state park, state forest, or federal forest or timberland, and inspect the bills of lading, shipping or delivery papers, or other evidence to determine whether the driver is in legal possession of the load and take possession AB 2284 Page 3 of those supplies if the officer has reasonable belief that the driver is not in legal possession of those supplies. 10)Requires the sheriff to receive and provide for the safekeeping of any agricultural irrigation supplies seized, and proceed, with the California Highway Patrol, with an investigation and its legal disposition. 11)Defines "agricultural irrigation supplies" as including agricultural irrigation water bladder, drip irrigation tubing, and fertilizer. 12)Defines "timberland" as privately owned land, or land acquired for state forest purposes, which is devoted to and used for growing and harvesting timber, or for growing and harvesting timber and compatible uses, and which is capable of growing an average annual volume of wood fiber of at least 15 cubic feet per acre. EXISTING LAW : 1)Allows a member of the CHP to stop any vehicle transporting any timber products, livestock, poultry, farm produce, crude oil, petroleum products, or inedible kitchen grease, and inspect the bills of lading, shipping or delivery papers, or other evidence to determine whether the driver is in legal possession of the load, and, upon reasonable belief that the driver of the vehicle is not in legal possession, shall take custody of the vehicle and load and turn them over to the custody of the sheriff of the county in which the timber products, livestock, poultry, farm produce, crude oil, petroleum products, or inedible kitchen grease, or any part thereof, is apprehended. ÝVehicle Code Section 2810(a).] 2)States that the sheriff shall receive and provide for the care and safekeeping of the apprehended timber products, livestock, poultry, farm produce, crude oil, petroleum products, or inedible kitchen grease, or any part thereof, and immediately, in cooperation with the department, proceed with an investigation and its legal disposition. ÝVehicle Code Section 2810(b).] FISCAL EFFECT : Unknown COMMENTS : AB 2284 Page 4 1)Author's Statement : According to the author, "Illegal marijuana cultivation on resource land has become a significant problem in my district and many other parts of the state. Growing marijuana on state and private resource land presents a public safety and environmental hazard. People can no longer rely on these lands as a safe place to recreate and large scale damage is being done to the immediate grow site and surrounding areas. Law Enforcement Agencies have limited resources like so many other services in this economic climate. The focus of many agencies finite resources have shift to marijuana enforcement from their original mission. This bill would give law enforcement agencies the tools to prevent the establishment of illegal marijuana grow sites on resource land and to recuperate some of the resources spent to investigate, eradicate and clean up grow sites." 2)Background : According to information provided by the author, "This bill was developed as a result of the ongoing problems with illegal cultivation of marijuana on resource land (including State Parks, State Forests, Federal Parks and Timberland). Law enforcement agencies are not able to stop vehicles entering resource land to set up marijuana cultivation sites even if they see the individual entering with all the materials to do so. This bill would allow county sheriffs to pull over people entering state parks with agricultural supplies and ask them questions about their final destination. The main goal is to intercept these individuals before they are able to set up grow sites. "Additionally, this bill would increase civil penalties for three commonly pressed charges in conjunction with marijuana cultivation. Increasing these fines would allow that law enforcement agencies responsible for investigation, enforcement and clean-up to recuperate the costs spent in response to illegal marijuana growth on state parks. "Law enforcement agencies dedicate many hours to building cases against those responsible for grow sites and often are not success in prosecuting those cases. Additionally, they are never able to successfully try suspects in many cases. All of these factors combined leave many departments at a significant loss when it comes to illegal marijuana cultivation." 3)Vehicle Stops Are "Seizures" and Must Comport with the Fourth AB 2284 Page 5 Amendment : The United States Supreme Court has stated, "The Fourth Amendment guarantees 'the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of this provision. An automobile stop is thus subject to the constitutional imperative that it not be 'unreasonable' under the circumstances." ÝWhren v. United States, 517 U.S. 806, 809-810 (U.S. 1996).] 4)When Vehicle Stops Are Permitted Without a Warrant or Probable Cause : a) Immigration Stops : In some circumstances, the court has found that vehicle stops limited in scope and duration are permitted based on less than probable cause. Based on the circumstances involved in enforcing immigration laws, the Supreme Court has held that immigration stops that take place near the international border and are limited in scope and duration may be based on reasonable suspicion that the occupants of the vehicle may be in violation of immigration laws. However, the Court stated, "We are unwilling to let the Border Patrol dispense entirely with the requirement that officers must have a reasonable suspicion to justify roving-patrol stops." ÝUnited States v. Brignoni-Ponce, 422 U.S. 873, 881-882 (U.S. 1975).] The Court went on to find that the sole fact that someone in a vehicle appears to be of Mexican ancestry does not amount to reasonable suspicion of a crime so as to justify a traffic stop: "In this case, the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry of the occupants. We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens. At best, the officers had only a fleeting glimpse of the persons in the moving car, illuminated by headlights. Even if they saw enough to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country. Large numbers of native-born and naturalized citizens have AB 2284 Page 6 the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens. The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens." ÝUnited States v. Brignoni-Ponce, 422 U.S. 873, 885-887 (1975).] This bill allows law enforcement to stop a vehicle based solely on the fact that the vehicle contains agricultural irrigation supplies and inquire about the purpose and destination of those supplies. In other words, this bill authorizes these law enforcement officers to pull over a vehicle not based on probable cause, or even on reasonable suspicion of any wrongdoing, but solely based on the fact that the vehicle contained agricultural irrigation supplies. To allow police to affect a vehicle stop based on a single fact consistent with legal behavior as it is with illegal behavior, i.e., the transportation of agricultural irrigation supplies in the vehicle, appears to violate the Fourth Amendment just as does stopping a vehicle based only on the presence a person who appears to be of Mexican ancestry. Neither amounts to reasonable suspicion, much less probable cause, of any wrongdoing. b) Administrative Searches : Existing law, limited as it is to allowing only CHP officers to stop vehicles carrying timber products, livestock, poultry, farm produce, crude oil, petroleum products, or inedible kitchen grease, might present a closer constitutional question than the significant expansion proposed by this bill, although the constitutionality of the existing statute is by no means clear. No court decision has ever been published on the validity of that statute. The Supreme Court has recognized an exception to the warrant requirement for 'administrative searches' of business premises in heavily regulated businesses. "An administrative inspection is the inspection of business premises conducted by authorities responsible for enforcing a pervasive regulatory scheme; for example, unannounced inspection of a mine for compliance with health and safety standards." ÝWhren v. United States, 517 U.S. 806, 812 (1996).] AB 2284 Page 7 The three-part test for when a warrantless search might be justified under the administrative search exception was articulated in New York v. Burger as follows: "Because the owner or operator of commercial premises in a 'closely regulated' industry has a reduced expectation of privacy, the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search, see O'Connor v. Ortega, 480 U.S. 709, 741 (1987) (dissenting opinion), have lessened application in this context. Rather, we conclude that, as in other situations of 'special need,' see New Jersey v. T. L. O., 469 U.S. 325, 353 (1985) (opinion concurring in judgment), where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment. "This warrantless inspection, however, even in the context of a pervasively regulated business, will be deemed to be reasonable only so long as three criteria are met. First, there must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made. "Second, the warrantless inspections must be 'necessary to further Ýthe] regulatory scheme.' For example, in Dewey we recognized that forcing mine inspectors to obtain a warrant before every inspection might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act -- to detect and thus to deter safety and health violations. "Finally, 'the statute's inspection program, in terms of the certainty and regularity of its application, Ýmust] providÝe] a constitutionally adequate substitute for a warrant.' Ibid. In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the AB 2284 Page 8 statute must be 'sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.' In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be 'carefully limited in time, place, and scope.' " ÝNew York v. Burger, 482 U.S. 691, 702-703 (1987).] While warrantless administrative searches of certain business premises under certain circumstances have been authorized under the administrative search exception, the Supreme Court has long held that the Fourth Amendment does not permit police to be given unfettered discretion to perform vehicle stops, even just to check for driver's license and vehicle registration, without some evidence of wrongdoing: "An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one's home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles. Cf. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (warrant required for federal inspection under interstate commerce power of health and safety of workplace); See v. Seattle, 387 U.S. 541 (1967) (warrant required for inspection of warehouse for municipal fire code violations); Camara v. Municipal Court, 387 U.S. 523 (1967) (warrant required for inspection of residence for municipal fire code violations). AB 2284 Page 9 "Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. ÝDelaware v. Prouse, 440 U.S. 648, 663 (1979).] c) Sobriety Checkpoints : The Supreme Court has found that warrantless searches of a limited nature may take place in the form of sobriety checkpoints. The Court, however, distinguished the level of intrusion involved in a sobriety checkpoint from that in a "roving stop": "Comparing checkpoint stops to roving patrol stops considered in prior cases, we view checkpoint stops in a different light because the subjective intrusion -- the generating of concern or even fright on the part of lawful travelers is appreciably less in the case of a checkpoint stop. In United States v. Ortiz, 422 U.S. 891 (1975), we noted: 'The circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.' 422 U.S., at 894-895.' " Martinez-Fuerte, 428 U.S., at 558. ÝMich. Dep't of State Police v. Sitz, 496 U.S. 444, 452-453 (1990).] Furthermore, the Supreme Court provided specific guidelines that law enforcement must follow to ensure that the AB 2284 Page 10 sobriety checkpoints are not subjective in who they capture and are targeted specifically to areas where driving under the influence is a particular problem. For instance, officers may not randomly select cars. Officers must select every fifth car or tenth car and decide the number in advance, which prevents officers from subjectively selecting vehicles based on personal opinions that could relate to something as simple as the racial background, age or gender or the driver, or the perceived quality of their vehicles. The vehicle stops proposed by this bill are not checkpoint stops but "roving stops" that the Court found more intrusive and therefore do not fall under any exception to the warrant requirement similar to sobriety checkpoints. 5)Related Legislation: AB 1017 (Ammiano) would have made the penalty for marijuana cultivation an alternate misdemeanor/felony. AB 1017 failed passage on the Assembly floor. 6)Previous Legislation : a) AB 237 (Carter), of the 2009-2010 Legislative Session, would have allowed law enforcement to stop a vehicle, without a warrant or probable cause, while transporting metal products and inspect certain documents to determine whether the driver is in legal possession of the load and, upon reasonable belief that the driver of the vehicle is not in legal possession, to take custody of the vehicle and load. AB 237 failed passage in Senate Public Safety. b) SB 131 (Sher), of the 2003-04 Legislative Session, would have reduced simple possession of not more than 28.5 grams of marijuana to an infraction for the first offense, would have reduced simple possession for a subsequent offense to an alternate infraction/misdemeanor, and would have increased the penalty for an offense to a fine of not more than $250. SB 131 failed passage on the Assembly floor, was granted reconsideration, and was never re-heard c) SB 420 (Vasconcellos), Chapter 875, Statutes of 2003, establishes a voluntary registry identification card system for patients authorized to engage in the medical use of marijuana, and their caregivers. AB 2284 Page 11 d) SB 791 (McPherson), of the 2001-02 Legislative Session, would have reduced simple possession of not more than 28.5 grams of marijuana to an infraction for the first offense and an alternate infraction/misdemeanor for the second offense. SB 791 failed passage on the Assembly Floor. e) SB 847 (Vasconcellos), Chapter 750, Statutes of 1999, established the Marijuana Research Act of 1999 and provide that the Regents of the University of California, if they elect to do so, may implement a three-year program, the "California Marijuana Research Program", under which funds would be provided for studies intended to ascertain the general medical safety and efficacy of marijuana and, if found valuable, to develop medical guidelines for the appropriate administration and use of marijuana. REGISTERED SUPPORT / OPPOSITION : Support Mendocino County, Board of Supervisors Mendocino County, Sheriff-Coroner, Thomas D. Allman Opposition California Public Defenders Association Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744 or gender or the driver, or the perceived quality of their vehicles. The vehicle stops proposed by this bill are not checkpoint stops but "roving stops" that the Court found more intrusive and therefore do not fall under any exception to the warrant requirement similar to sobriety checkpoints. 5)Related Legislation: AB 1017 (Ammiano) would have made the penalty for marijuana cultivation an alternate misdemeanor/felony. AB 1017 failed passage on the Assembly floor. 6)Previous Legislation : a) AB 237 (Carter), of the 2009-2010 Legislative Session, would have allowed law enforcement to stop a vehicle, without a warrant or probable cause, while transporting metal products and inspect certain documents to determine whether the driver is in legal possession of the load and, upon reasonable belief that the driver of the vehicle is not in legal possession, to take custody of the vehicle and load. AB 237 failed passage in Senate Public Safety. b) SB 131 (Sher), of the 2003-04 Legislative Session, would have reduced simple possession of not more than 28.5 grams of marijuana to an infraction for the first offense, would have reduced simple possession for a subsequent offense to an alternate infraction/misdemeanor, and would have increased the penalty for an offense to a fine of not more than $250. SB 131 failed passage on the Assembly floor, was granted reconsideration, and was never re-heard c) SB 420 (Vasconcellos), Chapter 875, Statutes of 2003, establishes a voluntary registry identification card system for patients authorized to engage in the medical use of marijuana, and their caregivers. AB 2284 Page 11 d) SB 791 (McPherson), of the 2001-02 Legislative Session, would have reduced simple possession of not more than 28.5 grams of marijuana to an infraction for the first offense and an alternate infraction/misdemeanor for the second offense. SB 791 failed passage on the Assembly Floor. e) SB 847 (Vasconcellos), Chapter 750, Statutes of 1999, established the Marijuana Research Act of 1999 and provide that the Regents of the University of California, if they elect to do so, may implement a three-year program, the "California Marijuana Research Program", under which funds would be provided for studies intended to ascertain the general medical safety and efficacy of marijuana and, if found valuable, to develop medical guidelines for the appropriate administration and use of marijuana. REGISTERED SUPPORT / OPPOSITION : Support Mendocino County, Board of Supervisors Mendocino County, Sheriff-Coroner, Thomas D. Allman Opposition California Public Defenders Association Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744