BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1104


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          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