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 AB 1104 Page 2 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; AB 1104 Page 3 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 AB 1104 Page 4 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. AB 1104 Page 5 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 AB 1104 Page 6 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 AB 1104 Page 7 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 AB 1104 Page 8 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