BILL NUMBER: AB 303 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Member Gonzalez
FEBRUARY 12, 2015
An act to amend Section 1203.2 4030
of the Penal Code, relating to supervised persons.
searches.
LEGISLATIVE COUNSEL'S DIGEST
AB 303, as amended, Gonzalez. Supervised persons.
Searches: county jails.
Existing law establishes a statewide policy strictly limiting
strip and body cavity searches of prearraignment detainees arrested
for infraction or misdemeanor offenses and of minors detained prior
to a detention hearing on the grounds that he or she is alleged to
have committed a misdemeanor or infraction offense. Existing law
provides that if a person is arrested and taken into custody, that
person may be subjected to patdown searches, metal detector searches,
and thorough clothing searches in order to discover and retrieve
concealed weapons and contraband substances prior to being placed in
a booking cell. Existing law requires all persons conducting or
otherwise present during a strip search or visual or physical body
cavity search to be of the same sex as the person being searched,
except for physicians or licensed medical personnel. Under existing
law, a person who knowingly and willfully authorizes or conducts a
strip, visual, or physical body cavity search in violation of the
prescribed provisions is guilty of a misdemeanor.
This bill would additionally require that all persons within sight
of the inmate during a strip search or visual or physical body
cavity search be of the same sex as the person being searched, except
for physicians or licensed medical personnel. By expanding the
definition of a crime and imposing additional requirements on local
law enforcement, this bill would create a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Existing law allows a probation officer, parole officer, or peace
officer to arrest a person without warrant or other process during
the period that a person is released on probation, conditional
sentence or summary probation, or mandatory supervision, or when the
person is subject to revocation of postrelease community supervision
or parole supervision, if the officer has probable cause to believe
that the supervised person is violating the terms of his or her
supervision. Under existing law, the revocation of supervision,
summary or otherwise, serves to toll the running of the period of
supervision.
This bill would make technical, nonsubstantive changes to those
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4030 of the Penal
Code is amended to read:
4030. (a) The Legislature finds and declares that law enforcement
policies and practices for conducting strip or body cavity searches
of detained persons vary widely throughout California. Consequently,
some people have been arbitrarily subjected to unnecessary strip and
body cavity searches after arrests for minor misdemeanor and
infraction offenses. Some present search practices violate state and
federal constitutional rights to privacy and freedom from
unreasonable searches and seizures.
It is the intent of the Legislature in enacting this section to
protect the state and federal constitutional rights of the people of
California by establishing a statewide policy strictly limiting strip
and body cavity searches.
(b) The provisions of this section shall apply only to
prearraignment detainees arrested for infraction or misdemeanor
offenses and to any minor detained prior to a detention hearing on
the grounds that he or she is a person described in Section 300, 601,
or 602 of the Welfare and Institutions Code alleged to have
committed a misdemeanor or infraction offense. The provisions of this
section shall not apply to any person in the custody of the Director
of the Department of Corrections or the Director of the Youth
Authority.
(c) As used in this section, "strip search" means a search which
requires a person to remove or arrange some or all of his or her
clothing so as to permit a visual inspection of the underclothing,
breasts, buttocks, or genitalia of such person.
(d) As used in this section:
(1) "Body cavity" only means the stomach or rectal cavity of a
person, and vagina of a female person.
(2) "Visual body cavity search" means visual inspection of a body
cavity.
(3) "Physical body cavity search" means physical intrusion into a
body cavity for the purpose of discovering any object concealed in
the body cavity.
(e) Notwithstanding any other provision of law, including Section
40304.5 of the Vehicle Code, when a person is arrested and taken into
custody, that person may be subjected to patdown searches, metal
detector searches, and thorough clothing searches in order to
discover and retrieve concealed weapons and contraband substances
prior to being placed in a booking cell.
(f) No person arrested and held in custody on a misdemeanor or
infraction offense, except those involving weapons, controlled
substances or violence nor any minor detained prior to a detention
hearing on the grounds that he or she is a person described in
Section 300, 601 or 602 of the Welfare and Institutions Code, except
for those minors alleged to have committed felonies or offenses
involving weapons, controlled substances or violence, shall be
subjected to a strip search or visual body cavity search prior to
placement in the general jail population, unless a peace officer has
determined there is reasonable suspicion based on specific and
articulable facts to believe such person is concealing a weapon or
contraband, and a strip search will result in the discovery of the
weapon or contraband. No strip search or visual body cavity search or
both may be conducted without the prior written authorization of the
supervising officer on duty. The authorization shall include the
specific and articulable facts and circumstances upon which the
reasonable suspicion determination was made by the supervisor.
(g) (1) Except pursuant to the provisions of paragraph (2), no
person arrested and held in custody on a misdemeanor or infraction
offense not involving weapons, controlled substances or violence,
shall be confined in the general jail population unless all of the
following are true:
(i)
(A) The person is not cited and released.
(ii)
(B) The person is not released on his or her own
recognizance pursuant to Article 9 (commencing with Section 1318) of
Chapter 1 of Title 10 of Part 2.
(iii)
(C) The person is not able to post bail within a
reasonable time not less than three hours.
(2) No person may be housed in the general jail population prior
to release pursuant to the provisions of paragraph (1) unless a
documented emergency exists and there is no reasonable alternative to
such placement. Such person shall be placed in the general
population only upon prior written authorization documenting the
specific facts and circumstances of the emergency. The written
authorization shall be signed by the uniformed supervisor of the
facility or by a uniformed watch commander. Any person confined in
the general jail population pursuant to paragraph (1) shall retain
all rights to release on citation, his or her own recognizance, or
bail which were preempted as a consequence of the emergency.
(h) No person arrested on a misdemeanor or infraction offense, nor
any minor described in subdivision (b), shall be subjected to a
physical body cavity search except under the authority of a search
warrant issued by a magistrate specifically authorizing the physical
body cavity search.
(i) A copy of the prior written authorization required by
subdivisions (f) and (g) and the search warrant required by
subdivision (h) shall be placed in the agency's records and made
available, on request, to the person searched or his or her
authorized representative. With regard to any strip, visual or body
search, the time, date and place of the search, the name and sex of
the person conducting the search and a statement of the results of
the search, including a list of any items removed from the person
searched, shall be recorded in the agency's records and made
available, upon request, to the person searched or his or her
authorized representative.
(j) Persons conducting a strip search or a visual body cavity
search shall not touch the breasts, buttocks, or genitalia of the
person being searched.
(k) A physical body cavity search shall be conducted under
sanitary conditions, and only by a physician, nurse practitioner,
registered nurse, licensed vocational nurse or emergency medical
technician Level II licensed to practice in this state. Any physician
engaged in providing health care to detainees and inmates of the
facility may conduct physical body cavity searches.
( l ) All persons conducting or otherwise present
or within sight of the inmate during a strip search or visual
or physical body cavity search shall be of the same sex as the person
being searched, except for physicians or licensed medical personnel.
(m) All strip, visual and physical body cavity searches shall be
conducted in an area of privacy so that the search cannot be observed
by persons not participating in the search. Persons are considered
to be participating in the search if their official duties relative
to search procedure require them to be present at the time the search
is conducted.
(n) A person who knowingly and willfully authorizes or conducts a
strip, visual or physical body cavity search in violation of this
section is guilty of a misdemeanor.
(o) Nothing in this section shall be construed as limiting any
common law or statutory rights of any person regarding any action for
damages or injunctive relief, or as precluding the prosecution under
another provision of law of any peace officer or other person who
has violated this section.
(p) Any person who suffers damage or harm as a result of a
violation of this section may bring a civil action to recover actual
damages, or one thousand dollars ($1,000), whichever is greater. In
addition, the court may, in its discretion, award punitive damages,
equitable relief as it deems necessary and proper, and costs,
including reasonable attorney's fees.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, this act creates a new
crime or infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a crime
within the meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
SECTION 1. Section 1203.2 of the Penal Code is
amended to read:
1203.2. (a) At any time during the period of supervision of a
person (1) released on probation under the care of a probation
officer pursuant to this chapter, (2) released on conditional
sentence or summary probation not under the care of a probation
officer, (3) placed on mandatory supervision pursuant to subparagraph
(B) of paragraph (5) of subdivision (h) of Section 1170, (4) subject
to revocation of postrelease community supervision pursuant to
Section 3455, or (5) subject to revocation of parole supervision
pursuant to Section 3000.08, if any probation officer, parole
officer, or peace officer has probable cause to believe that the
supervised person is violating any term or condition of his or her
supervision, the officer may, without warrant or other process and at
any time until the final disposition of the case, rearrest the
supervised person and bring him or her before the court or the court
may, in its discretion, issue a warrant for his or her rearrest. Upon
rearrest, or upon the issuance of a warrant for rearrest the court
may revoke and terminate the supervision of the person if the
interests of justice so require and the court, in its judgment, has
reason to believe from the report of the probation or parole officer
or otherwise that the person has violated any of the conditions of
his or her supervision, has become abandoned to improper associates
or a vicious life, or has subsequently committed other offenses,
regardless of whether he or she has been prosecuted for those
offenses. However, the court shall not terminate parole pursuant to
this section. Supervision shall not be revoked for failure of a
person to make restitution imposed as a condition of supervision
unless the court determines that the defendant has willfully failed
to pay and has the ability to pay. Restitution shall be consistent
with a person's ability to pay. The revocation, summary or otherwise,
shall serve to toll the running of the period of supervision.
(b) (1) Upon its own motion or upon the petition of the supervised
person, the probation or parole officer, or the district attorney,
the court may modify, revoke, or terminate supervision of the person
pursuant to this subdivision, except that the court shall not
terminate parole pursuant to this section. The court in the county in
which the person is supervised has jurisdiction to hear the motion
or petition, or for those on parole, either the court in the county
of supervision or the court in the county in which the alleged
violation of supervision occurred. A person supervised on parole or
postrelease community supervision pursuant to Section 3455 may not
petition the court pursuant to this section for early release from
supervision, and a petition under this section shall not be filed
solely for the purpose of modifying parole. This section does not
prohibit the court in the county in which the person is supervised or
in which the alleged violation of supervision occurred from
modifying a person's parole when acting on the court's own motion or
a petition to revoke parole. The court shall give notice of its
motion, and the probation or parole officer or the district attorney
shall give notice of his or her petition to the supervised person,
his or her attorney of record, and the district attorney or the
probation or parole officer, as the case may be. The supervised
person shall give notice of his or her petition to the probation or
parole officer and notice of any motion or petition shall be given to
the district attorney in all cases. The court shall refer its motion
or the petition to the probation or parole officer. After the
receipt of a written report from the probation or parole officer, the
court shall read and consider the report and either its motion or
the petition and may modify, revoke, or terminate the supervision of
the supervised person upon the grounds set forth in subdivision (a)
if the interests of justice so require.
(2) The notice required by this subdivision may be given to the
supervised person upon his or her first court appearance in the
proceeding. Upon the agreement by the supervised person in writing to
the specific terms of a modification or termination of a specific
term of supervision, any requirement that the supervised person make
a personal appearance in court for the purpose of a modification or
termination shall be waived. Prior to the modification or termination
and waiver of appearance, the supervised person shall be informed of
his or her right to consult with counsel, and if indigent the right
to secure court appointed counsel. If the supervised person waives
his or her right to counsel a written waiver shall be required. If
the supervised person consults with counsel and thereafter agrees to
a modification, revocation, or termination of the term of supervision
and waiver of personal appearance, the agreement shall be signed by
counsel showing approval for the modification or termination and
waiver.
(c) Upon any revocation and termination of probation the court
may, if the sentence has been suspended, pronounce judgment for any
time within the longest period for which the person might have been
sentenced. However, if the judgment has been pronounced and the
execution thereof has been suspended, the court may revoke the
suspension and order that the judgment shall be in full force and
effect. In either case, the person shall be delivered over to the
proper officer to serve his or her sentence, less any credits herein
provided for.
(d) In any case of revocation and termination of probation,
including, but not limited to, cases in which the judgment has been
pronounced and the execution thereof has been suspended, upon the
revocation and termination, the court may, in lieu of any other
sentence, commit the person to the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities if he or she is
otherwise eligible for that commitment.
(e) If probation has been revoked before the judgment has been
pronounced, the order revoking probation may be set aside for good
cause upon motion made before pronouncement of judgment. If probation
has been revoked after the judgment has been pronounced, the
judgment and the order which revoked the probation may be set aside
for good cause within 30 days after the court has notice that the
execution of the sentence has commenced. If an order setting aside
the judgment, the revocation of probation, or both is made after the
expiration of the probationary period, the court may again place the
person on probation for that period and with those terms and
conditions as it could have done immediately following conviction.
(f) As used in this section, the following definitions shall
apply:
(1) "Court" means a judge, magistrate, or revocation hearing
officer described in Section 71622.5 of the Government Code.
(2) "Probation officer" means a probation officer as described in
Section 1203 or an officer of the agency designated by the board of
supervisors of a county to implement postrelease community
supervision pursuant to Section 3451.
(3) "Supervised person" means a person who satisfies any of the
following:
(A) He or she is released on probation subject to the supervision
of a probation officer.
(B) He or she is released on conditional sentence or summary
probation not under the care of a probation officer.
(C) He or she is subject to mandatory supervision pursuant to
subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170.
(D) He or she is subject to revocation of postrelease community
supervision pursuant to Section 3455.
(E) He or she is subject to revocation of parole pursuant to
Section 3000.08.
(g) This section does not affect the authority of the supervising
agency to impose intermediate sanctions, including flash
incarceration, to persons supervised on parole pursuant to Section
3000.8 or postrelease community supervision pursuant to Part 3
(commencing with Section 3450) of Title 2.05.