BILL NUMBER: AB 303 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 16, 2015
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Member Gonzalez
FEBRUARY 12, 2015
An act to amend Section 4030 of of, and to
add Section 4031 to, 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 requires
requires, among other things, that 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. The bill would
extend the protections regarding the manner in which a strip search
is conducted to all juvenile inmates. By expanding the
definition of a crime crime, creating a new
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.
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 section, section and
Section 4031, "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: sectio
n and Section 4031:
(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, visual 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 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. Section 4031 is added to the
Penal Code , to read:
4031. (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.
SEC. 2. SEC. 3. 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.