BILL NUMBER: AB 303 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 31, 2015
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, 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, 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. minors
held in a juvenile detention facility. By expanding the
definition of a 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) (1) 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
(2) 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 a
person in the custody of the Director
Secretary of the Department of Corrections and
Rehabilitation or the Director of the Youth Authority.
Division of Juvenile Justice in the Department of
Corrections and Rehabilitation.
(c) As used in this section the following definitions shall apply:
(1) "Body cavity" only means the stomach or rectal cavity of a
person, and vagina of a female person.
(2) "Physical body cavity search" means physical intrusion into a
body cavity for the purpose of discovering any object concealed in
the body cavity.
(c) As used in this section and Section 4031, "strip
(3) "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 and Section 4031:
(1) "Body cavity" only means the stomach or rectal cavity of a
person, and vagina of a female person.
(2)
(4) "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)
(d) 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
(e) A person arrested and held in
custody on a misdemeanor or infraction offense, except those
involving weapons, controlled substances or violence nor any
substances, or violence, or a 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 substances, or violence, shall
not 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
suspicion, based on specific and articulable
facts facts, to believe such
that person is concealing a weapon or
contraband, and a strip search will result in the discovery of the
weapon or contraband. No A strip search
or visual body cavity search or both may
search, or both, shall not 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)
(f) (1) Except pursuant to the provisions of paragraph
(2), no a person arrested and held in
custody on a misdemeanor or infraction offense not involving weapons,
controlled substances substances, or
violence, shall not 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 time, not less than three hours.
(2) No A person may
shall not 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 that placement.
Such The 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
A 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 that
were preempted as a consequence of the emergency.
(h) No
(g) A person arrested on a
misdemeanor or infraction offense, nor any or
a minor described in subdivision (b), shall not 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)
(h) A copy of the prior written authorization required
by subdivisions (e) and (f) and (g) and
the search warrant required by subdivision (h)
(g) 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 a strip search or visual or physical body
cavity search, the time, date date,
and place of the search, the name and sex of the person
conducting the search 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)
(i) 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)
(j) A physical body cavity search shall be conducted
under sanitary conditions, and only by a physician, nurse
practitioner, registered nurse, licensed vocational nurse
nurse, or emergency medical technician Level II
licensed to practice in this state. Any A
physician engaged in providing health care to detainees and
inmates of the facility may conduct physical body cavity searches.
( l ) All persons
(k) A person 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)
( l ) 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)
(m) A person who knowingly and willfully authorizes or
conducts a strip, visual, strip search or
visual or physical body cavity search in violation of this
section is guilty of a misdemeanor.
(o)
(n) Nothing in this section shall be construed as
limiting any the common law or
statutory rights of any a person
regarding any an action for damages or
injunctive relief, or as precluding the prosecution under another
provision of law of any a
peace officer or other person who has violated this section.
(p)
(o) 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 in a
juvenile detention center 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
and held in a juvenile detention center 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
nurse, or emergency medical technician Level II licensed to
practice in this state. Any A physician
engaged in providing health care to detainees
detainees, wards, and inmates of the facility may conduct
physical body cavity searches.
(d) All persons A person 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, strip searches and
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, strip searches and 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 the common law or statutory rights
of any a person regarding any
an action for damages or injunctive relief, or
as precluding the prosecution under another provision of
law of any a 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.
(i) This section does not limit the protections granted by Section
4030 to individuals described in subdivision (b) of that section.
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.