BILL ANALYSIS                                                                                                                                                                                                    Ó






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                                   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  








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            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).)  







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          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  







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             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),  







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            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  







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            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  







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               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


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