BILL ANALYSIS Ó
AB 303
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Date of Hearing: April 21, 2015
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
303 (Gonzalez) - As Amended: April 16, 2015
SUMMARY: Requires that all persons within sight of specified
pre-arraignment detainees and incarcerated juveniles 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.
EXISTING LAW:
1)Makes legislative findings and declarations 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. (Pen. Code, § 4030, subd.
(a).)
2)States 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. (Pen. Code,
§ 4030, subd. (a).)
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3)Provides that all persons conducting or otherwise present
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. (Pen. Code, §
4030, subd. (l).)
4)Provides that the provisions these specified searches shall
apply only to pre-arraignment 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 specified sections 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. (Pen. Code, § 4030, subd. (b).)
5)Defines "strip search" as 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. (Pen. Code, § 4030,
subd. (c).)
6)Defines "body cavity" as the stomach or rectal cavity of a
person, and vagina of a female person. (Pen. Code, § 4030,
subd. (d)(1).)
7)Defines "visual body cavity search" as the visual inspection
of a body cavity. (Pen. Code, § 4030, subd. (d)(2).)
8)Defines "physical body cavity search" as the physical
intrusion into a body cavity for the purpose of discovering
any object concealed in the body cavity. (Pen. Code, § 4030,
subd. (d)(3).)
9)States that when a person is arrested and taken into custody,
that person may be subjected to pat-down 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. (Pen.
Code, § 4030, subd. (e).)
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10)Provides that 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 specified sections 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. (Pen.
Code, § 4030, subd. (f).)
11)Provides that no person arrested on a misdemeanor or
infraction offense, nor any minor, 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. (Pen. Code, § 4030, subd.
(h).)
12)Provides that persons conducting a strip search or a visual
body cavity search shall not touch the breasts, buttocks, or
genitalia of the person being searched. (Pen. Code, § 4030,
subd. (j).)
13)States that 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. (Pen. Code, § 4030, subd. (k).)
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14)Provides that 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. (Pen. Code, § 4030, subd. (m).)
15)States that 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. (Pen.
Code, § 4030, subd. (n).)
16)States that 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. (Pen. Code, § 4030, subd. (o).)
17)States that 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. (Pen. Code, § 4030, subd. (p).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, ""AB 303 will
strengthen current law regarding strip searches - which
already prohibits officers of the opposite sex to be
present-and give further clarification to prevent the
unnecessary visual contact between individuals during these
procedures. This is a small but necessary step to protect
the state and federal constitutional rights of inmates,
especially those in juvenile detention centers."
2)Modification of Current Law: This bill is a small
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modification of existing law, which already requires that
persons conducting strip searches of persons in police custody
must be of the same gender as the person being searched. This
bill simply specifies that all persons within view of the
search must also be of the same gender. There have been
reports of officers being in view of searches, who were not in
the immediate vicinity. This modification, while small, will
make a significant difference to those persons being searched
and will not impose a significant burden on law enforcement
agencies conducting these searches.
3)Strip Searches before Entering General Population: On April
2, 2012, the Supreme Court upheld the validity of strip
searches by jail officials for even minor offenses when a
person is being placed in the general population. (Florence
v. Board of Chosen Freeholders of County of Burlington, 2012
US Lexis 2712.) However, the Court did not directly address
the issue of strip searches before a person's detention is
reviewed by a judicial officer and who could be held in a
facility apart from the general population. (See Justice
Alioto Concurrence, id.)
California law currently regulates when and how strip searches
occur in local detention facilities. The provision, which was
passed in 1984, has the codified legislative intent to
strictly limit strip and body cavity searches. The provisions
of the law apply only to adult and juvenile pre-arraignment
detainees arrested for infractions or misdemeanors. The
legislative history is interesting on this provision. The
original bill was vetoed. That same year the language appears
to have been put into a number of other bills one of which was
signed. The language of the original bill and the one signed
was not substantially different. The Senate Judiciary
Committee analysis of the vetoed bill discusses the expected
concerns by the law enforcement opposition regarding jail
safety and potential contraband but also discusses the intent
of the bill to not subject minor offenders to strip searches
before they are arraigned. The intent of the bill to not
allow strip searches prior to arraignment is clear in the
exception which allows strip searches when a person has to
enter general population because of a documented emergency.
The legislative history of passing more than one bill in the
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same year with the same language may point to the importance
the Legislature placed on protecting people charged with
infractions or misdemeanors from these searches.
This bill maintains the existing practice of permitting strip
searches of inmates prior to them entering the general
population. However, the bill mandates that these searches be
conducted out of view of all persons not of the same gender as
the person being searched. This bill seeks a minor
clarification which is wholly consistent with existing law.
4)Argument in Support: According to the California Public
Defenders Association, "Current law requires that any strip
search, physical body cavity search, or visual body cavity
search of an arrestee be conducted by a person of the same sex
as the arrestee, and only in the presence of others of the
same sex as the arrestee. AB 303 would amend Penal Code
section 4030 to also require that when such searches are
conducted, any person "within sight of the inmate" be of the
same sex as the person being searched. The new requirement
will maintain current exceptions for physicians or licensed
medical personnel. Penal Code section 4030 applies only to
prearrangement detainees, including minors, arrested for
infraction or misdemeanor cases.
"CPDA supports the goal of AB 303, which is to ensure that
such searches are conducted in a manner that helps to
minimize, at least in some measure, the indignity suffered by
those arrested for low-level offenses."
5)Prior Legislation:
a) SB 1536 (Leno), 2011-2012 Legislative Session, would
have clarified that a person charged with a misdemeanor or
infraction shall be brought before a magistrate before
being confined in the general population of the jail. SB
1536 failed passage in the Senate Appropriations Committee.
b) AB 1367 (Waters), Chapter 35, Statutes of 1984, created
the current statute authorizing strip searches for inmates
prior to release into the general population.
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REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
L.A. County Probation Officers Union
Riverside Sheriffs' Association
Youth Law Center
Opposition
None
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744