BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 303| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 303 Author: Gonzalez (D) Amended: 8/31/15 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/9/15 AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen ASSEMBLY FLOOR: 77-0, 5/7/15 (Consent) - See last page for vote SUBJECT: Searches: county jailsSearches: county jails. SOURCE: Author DIGEST: This bill requires that during a strip search or body cavity search of a juvenile, all persons within sight be of the same sex as the person being searched, except for physicians or licensed medical personnel, as specified. ANALYSIS: 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 AB 303 Page 2 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. (Penal Code § 4030(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. (Penal Code § 4030(a).) 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. (Penal Code § 4030(l).) 4)Provides that the provisions of 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. (Penal Code § 4030(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. (Penal Code § 4030(c).) 6)Defines "body cavity" as the stomach or rectal cavity of a person, and vagina of a female person. (Penal Code § 4030(d)(1).) 7)Defines "visual body cavity search" as the visual inspection of a body cavity. (Penal Code § 4030(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. (Penal Code § 4030(d)(3).) AB 303 Page 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. (Penal Code § 4030(e).) 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. (Penal Code § 4030(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. (Penal Code § 4030(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. (Penal Code § 4030(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 AB 303 Page 4 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. (Penal Code § 4030(k).) 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. (Penal Code § 4030(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. (Penal Code § 4030(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. (Penal Code § 4030(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. (Penal Code § 4030(p).) This bill: 1)States that all persons conducting or otherwise present or within sight of the juvenile during a strip search or visual or physical body cavity search must be of the same sex as the person being searched, except for physicians or licensed medical personnel. 2)Authorizes any person who suffers damage or harm as a result of a violation of this section to bring a civil action to recover actual damages, or one thousand dollars ($1,000), AB 303 Page 5 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. Comments 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.) The Court, however, did not directly address the issue of strip searches before a person's detention is reviewed by a judicial officer. (Id.) California law 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. This bill maintains the existing practice of permitting strip searches of inmates prior to them entering the general population and simply specifies that all persons within view of the search must also be of the same gender. According to those in support, 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes According to the Senate Appropriations Committee: Minor ongoing costs (General Fund) to local jails to comply with the added requirement that all persons within sight of a prearraignment detainee charged with a misdemeanor or infraction offense be of the same sex as the person being searched. Potentially significant one-time and ongoing costs in excess of $150,000 (General Fund) statewide for local jails and AB 303 Page 6 county juvenile facilities to comply with the protections regarding the manner in which a strip search or body cavity search is conducted on all detained minors and wards of the court. According to DOJ statistics, nearly 97,000 arrests of juveniles occurred in 2013, of which nearly 32 percent (30,800) accounted for felony arrests. Minor and absorbable ongoing costs (General Fund) to the California Department of Corrections and Rehabilitation (CDCR) to comply with the search requirements for all minors placed in CDCR facilities. Non-reimbursable local costs for enforcement, offset to a degree by fine revenue to the extent misdemeanor violations are charged. SUPPORT: (Verified8/28/15) American Civil Liberties Union California Attorneys for Criminal Justice California Public Defenders Association Los Angeles County Probation Officers Union Legal Services for Prisoners with Children Orange County Employees Association Riverside Sheriffs' Association State Coalition of Probation Organizations Youth Law Center OPPOSITION: (Verified8/28/15) None received ARGUMENTS IN SUPPORT: According to the California Public Defenders Association (CPDA): 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 AB 303 Page 7 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. ASSEMBLY FLOOR: 77-0, 5/7/15 AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Campos, Roger Hernández, Steinorth Prepared by:Jessica Devencenzi / PUB. S. / 8/31/15 8:55:03 **** END ****