BILL ANALYSIS Ó
AB 1104
Page 1
Date of Hearing: April 28, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1104 (Rodriguez) - As Amended April 23, 2015
SUMMARY: Clarifies in the Penal Code that a search warrant may
be issued when the property or things to be seized are
controlled substances or any device, contrivance, instrument, or
paraphernalia used for unlawfully using or administering a
controlled substance, as provided in existing provisions of law
in the Health and Safety Code.
EXISTING LAW:
1)States that a search warrant is an order in writing, in the
name of the people, signed by a magistrate, directed to a
peace officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and, in the
case of a thing or things or personal property, bring the same
before the magistrate. (Pen. Code, § 1523.)
2)Permits a search warrant to be issued for any of the following
grounds:
a) When the property subject to search was stolen or
embezzled;
b) When property or things were used as the means to commit
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a felony;
c) When the property or things are in the possession of any
person with the intent to use them as a means of committing
a public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of
concealing them or preventing them from being discovered;
d) When the property or things to be seized consist of any
item or constitute any evidence that tends to show a felony
has been committed, or tends to show that a particular
person has committed a felony;
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of a
child or possession of matter depicting sexual conduct of a
person under the age of 18 years has occurred or is
occurring;
f) When there is a warrant to arrest a person;
g) When a provider of electronic communication service or
remote computing service has records or evidence, as
specified, showing that property was stolen or embezzled
constituting a misdemeanor, or that property or things are
in the possession of any person with the intent to use them
as a means of committing a misdemeanor public offense, or
in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or
preventing their discovery;
h) When the property or things to be seized include an item
or any evidence that tends to show a violation of a
specified section of the Labor Code, or tends to show that
a particular person has violated that section;
i) When the property or things to be seized include a
firearm or any other deadly weapon at the scene of, or at
the premises occupied or under the control of the person
arrested in connection with, a domestic violence incident
involving a threat to human life or a physical assault as
specified;
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j) When the property or things to be seized include a
firearm or any other deadly weapon that is owned by, or in
the possession of, or in the custody or control of,
specified persons;
aa) When the property or things to be seized include a
firearm that is owned by, or in the possession of, or in
the custody or control of, a person who is subject to the
prohibitions regarding firearms, as specified, if a
prohibited firearm is possessed, owned, in the custody of,
or controlled by a person against whom a specified
protective order has been issued, the person has been
lawfully served with that order, and the person has failed
to relinquish the firearm as required by law;
bb) When the information to be received from the use of a
tracking device constitutes evidence that tends to show
that either a felony, a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code has been committed or is being committed,
tends to show that a particular person has committed a
felony, a misdemeanor violation of the Fish and Game Code,
or a misdemeanor violation of the Public Resources Code, or
is committing a felony, a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code, or will assist in locating an individual
who has committed or is committing a felony, a misdemeanor
violation of the Fish and Game Code, or a misdemeanor
violation of the Public Resources Code;
cc) When a sample of the blood of a person constitutes
evidence that tends to show a violation of specified
provisions in the Vehicle Code relating to driving under
the influence offenses and the person from whom the sample
is being sought has refused an officer's request to submit
to, or has failed to complete, a blood test as specified;
and,
dd) Beginning January 1, 2016, the property or things to be
seized are firearms or ammunition or both that are owned
by, in the possession of, or in the custody or control of a
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person who is the subject of a gun violence restraining
order, as specified. (Pen. Code, § 1524, subd. (a).)
3)Requires a search warrant be to issued upon probable cause,
supported by affidavit, naming or describing the person to be
searched or searched for, and particularly describing the
property, thing, or things and the place to be searched. (Pen.
Code, § 1525.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 1104 simply
seeks clarification that a search warrant for controlled
substances is already authorized in the Health and Safety Code
by referencing such provision in Penal Code. This bill does
not attempt to increase penalties or otherwise contravene the
notions underlying Proposition 47. All existing state and
federal requirements regarding the issuance of search warrants
would still apply."
2)Search Warrants: Both the United States and the California
constitutions guarantee the right of all persons to be secure
from unreasonable searches and seizures. (U.S. Const., amend.
IV; Cal. Const., art. 1, sec. 13.) This protection applies to
all unreasonable government intrusions into legitimate
expectations of privacy. (United States v. Chadwick (1977)
433 U.S. 1, 7, overruled on other grounds by California v.
Acevedo (1991) 500 U.S. 565.) In general, a search is not
valid unless it is conducted pursuant to a warrant. A search
warrant may not be issued without probable cause. "Reasonable
and probable cause exists if a man of ordinary care and
prudence would be led to conscientiously entertain an honest
and strong suspicion that the accused is guilty." (People v.
Alvarado (1967) 250 Cal.App.2d 584, 591.) The mere
reasonableness of a search, assessed in light of the
surrounding circumstances, is not a substitute for the warrant
required by the Constitution. (Arkansas v. Sanders (1979) 442
U.S. 753, 758, overruled on other grounds by California v.
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Acevedo, supra.) There are exceptions to the warrant
requirement, but the burden of establishing an exception is on
the party seeking one. (Arkansas v. Sanders (1979) 442 U.S.
753, 760, overruled on other grounds by California v. Acevedo,
supra.)
In California, Penal Code section 1524 provides the statutory
grounds for the issuance of warrants. Under these provisions,
a search warrant may be issued "[w]hen property or things were
used as the means to commit a felony." (Pen. Code, § 1524,
subd. (a)(2).) There are other enumerated circumstances that
authorize a search warrant regardless of whether the crime was
a felony or misdemeanor, such as "[w]hen the property subject
to search was stolen or embezzled." (Pen. Code, § 1524, subd.
(a)(1).) Additionally, Penal Code section 1524 provides that
a search warrant may be issued "[w]hen the property or things
are in the possession of any person with the intent to use
them as a means of committing a public offense. . .." (Pen.
Code, § 1524, subd. (a)(3).) A "public offense" is defined as
crimes which include felonies, misdemeanors, and infractions.
(Pen. Code, § 16.) When the mere possession of such property
is not violation of law, this provision requires a showing of
specific intent to use such property to commit public offense
before a warrant may be issued. However, when possession
itself is declared unlawful by statute, such is the case for
controlled substances, it is not necessary to show specific
intent, possession itself being public offense. (Dunn v.
Municipal Court for Eureka Judicial Dist. (1963) 220 Cal App
2d 858.)
The Health and Safety code also states that controlled
substances or paraphernalia "may be seized by any peace
officer and in the aid of such seizure a search warrant may be
issued as prescribed by law." (Health & Saf. Code, § 11472.)
However, because Penal Code section 1524 is relied upon as the
statute that provides direction on when warrants may be
issued, adding a cross reference to Health and Safety Code
section 11472 will provide clarity to agencies on when they
may seek a warrant.
3)Argument in Support: According to the California State
Sheriffs' Association, "Because California law is constantly
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changing, both due to legislative and judicial action, it
often becomes necessary to update and clarify statutes so it
is clear to law enforcement and court officers, as well as the
Californians who are governed by them, what the state of the
law is.
"It has come to our attention that the authority to seek and
obtain search warrants for controlled substance possession
offenses as described in Health and Safety Code may be unclear
and in the spirit of the above precepts, AB 1104 will merely
clarify this existing authority by inserting an unambiguous
cross-reference in Penal Code Section 1524, the existing
California law that generally describes the situations in
which search warrants may issue."
4)Argument in Opposition: According to the California Public
Defenders Association, "Health and Safety Code authorizes a
peace officer to seize the listed items, and provides that 'in
the aid of such seizure a search warrant may be issued as
prescribed by law.'
"In other words, if a search warrant issues as prescribed by
Penal Code section 1524, and in executing it an officer finds
any of the listed items, the officer can seize them. But
existing law, that is, existing Penal Code section 1524, does
not currently authorize a search warrant to issue solely for
those listed items, and nor does Health and Safety Code
section 11472.
"This is a subtle but important point. It is illustrated by
People v. Superior Court (Morton) (1984) 151 Cal.App.3d 899.
In that case, drug paraphernalia, which is an item listed in
Health and Safety Code section 11472, was seized, and there
was a search warrant. But the warrant in that case was not
issued just because those items were possessed, and it was not
issued under authority of Health and Safety Code section
11472. On the contrary, the Morton court stated, at 151
Cal.App.3d at 901, that the 'warrants recited that there was
probable cause to believe that described property "is
possessed ... with the intent to use it as a means of
committing ... a violation of ... Section 11364.7."' (Section
11364.7 outlaws possession of drug paraphernalia with intent
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to deliver them to another person to use drugs.)
"Thus, the warrant in issued by authority of Penal Code
section 1524, subdivision (a)(3), authorizing a search warrant
when the property is possessed 'with the intent to use them as
a means of committing a public offense.' It was not
authorized by Health and Safety Code section 11472."
5)Related Legislation:
a) AB 46 (Lackey) reverses provisions recently enacted by
Proposition 47 related to possession for personal use of
specified controlled substances. AB 46 has been amended
and no longer affects Proposition 47. AB 46 is pending
hearing by the Committee on Appropriations.
b) AB 150 (Melendez) specifies that theft of a firearm
valued at $950 dollars or less is a felony. AB 150 is
pending hearing in the Assembly Appropriations Committee.
c) SB 333 (Galgiani) would reverse provisions recently
enacted by Proposition 47 related to possession for
personal use of specified controlled substances. SB 333 is
pending hearing in the Senate Public Safety Committee.
d) SB 452 (Galgiani) is substantially similar to AB 150
(Melendez), but also addresses the crime of grand theft
from the person. SB 452 is pending hearing in the Senate
Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California State Sheriffs' Association (Sponsor)
California District Attorneys Association (Co-Sponsor)
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers Association
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California Peace Officers' Association
California Police Chiefs Association
California State Association of Counties
California State Lodge, Fraternal Order of Police
Crime Victims United
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs' Association
San Bernardino County Sheriff's Department
San Diego County Sheriff's Department
Santa Ana Police Officers Association
Opposition
California Public Defenders Association
Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744