Amended in Assembly April 16, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 303

Introduced by Assembly Member Gonzalez

February 12, 2015

An act to amend Section 4030 begin delete of end delete begin insert of, and to add Section 4031 to, end insert the Penal Code, relating to searches.

LEGISLATIVE COUNSEL’S DIGEST

AB 303, as amended, Gonzalez. 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 begin delete requires end delete begin insert requires, among other things, that end insert 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. begin insert The bill would extend the protections regarding the manner in which a strip search is conducted to all juvenile inmates. end insert By expanding the definition of a begin delete crime end delete begin insert crime, creating a new crime, end insert 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.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: 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 begin delete section, end delete begin insert section and Section 4031, end insert “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 begin delete section: end delete begin insert section and Section 4031: end insert

(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:

(A) The person is not cited and released.

(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.

(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, begin delete visual end delete begin insert visual, end insert 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, begin delete visual end delete begin insert visual, end insert 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.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 4031 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 4031. end insert   

(a) This section applies to all minors detained on the
grounds that he or she is a person described in Section 300, 601,
or 602 of the Welfare and Institutions Code, and all minors
adjudged a ward of the court on the grounds he or she is a person
described in Section 300, 601, or 602 of the Welfare and
Institutions Code.

(b) Persons conducting a strip search or a visual body cavity
search shall not touch the breasts, buttocks, or genitalia of the
person being searched.

(c) 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.

(d) 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.

(e) 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.

(f) 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.

(g) 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.

(h) 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.

end insert

begin delete SEC. 2. end delete
begin insert SEC. 3. end insert   

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.