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, 








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            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
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           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).









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             "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).]








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             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