BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1104 Hearing Date: June 16, 2015
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|Author: |Rodriguez |
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|Version: |April 23, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Search Warrants
HISTORY
Source: California State Sheriffs' Association
Prior Legislation:None
Support: The Association of Deputy District Attorneys;
Association for Los Angeles Deputy Sheriffs;
California Association of Code Enforcement Officers;
California College and University Police Chiefs
Association; The California District Attorneys
Association; California Fraternal Order of Police;
California Narcotic Officers Association; California
Peace Officers' Association; California Police Chiefs
Association; California State Association of Counties;
Crime Victims United of California; Long Beach Police
Officers Association; Los Angeles County Professional
Peace Officers Association; Los Angeles County
District Attorney's Office; Los Angeles County
Sheriff's Department; Los Angeles Police Protective
League; Peace Officers Research Association of
California; The Riverside Sheriffs Association; Rural
County Representatives of California; Santa Ana Police
Officers Association; San Bernardino County Sheriff;
San Diego County Sheriff's Department; Sacramento
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County Deputy Sheriffs' Association
Opposition:California Public Defenders Association; Legal
Services for Prisoners with Children
Assembly Floor Vote: 76 - 0
PURPOSE
The purpose of this bill is to clarify 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.
The US Constitution provides that "the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched an the persons or things to be seized." (4th Amendment
of the U.S. Constitution.)
The California Constitution provides that "the right of the
people to be secure in their persons, houses, papers and effects
against unreasonable seizures and searches may not be violated;
and a warrant may not issue except on probable cause, supported
by oath or affirmation, particularly describing the place to be
searched and the persons and things to be seized." (Article I,
Section 13 of the California Constitution.)
Existing law defines a "search warrant" as 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. (Penal Code § 1523.)
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Existing law provides that a search warrant may be issued upon
any of the following grounds:
1) When the property was stolen or embezzled;
2) When the property or things were used as the means of
committing a felony;
3) 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;
4) 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;
5) 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;
6) When there is a warrant to arrest a person;
7) When a provider of electronic communication service or
remote computing service
has records or evidence, 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;
8) When the property to be seized includes evidence of a
violation of specified Labor Code sections;
9) When the property to be seized includes a firearm or
deadly weapon or any other
deadly weapon at the scene of a domestic violence offense;
10) When the property to be seized includes a firearm or
deadly weapon owned by a person apprehended because of his
or her mental condition;
11) When the property to be seized is a firearm in
possession of a person prohibited under the family code; l)
When the information to be received from the use of a
tracking device under shows a specified violation of the
Fish and Game Code or Public Resources Code;
12) When a sample of blood would show evidence of a DUI; or,
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13) Starting January 1, 2016, when the property to be seized
is a firearm owned by a person subject to a gun violence
restraining order. (Penal Code § 1524(a).)
Existing law provides that controlled substances and any device,
contrivance, instrument, or paraphernalia used for unlawfully
using or administering a controlled substance, which are
possessed in violation of this division, 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 and Safety Code §
11472)
This bill 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.
COMMENTS
1. Need for This Bill
According to the author:
Under existing law, Penal Code 1524, Section (a)(4), it
is unclear when a law enforcement officer can seek a
search warrant for controlled substances.
PC 1524 (a) A search warrant may be issued upon any of
the following grounds:
(4) 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.
Specifically, AB 1104 would reference in Penal Code the
provision in Health and Safety Code, Section 11472,
which authorizes a search warrant for controlled
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substances.
HSC 11472 Controlled substances and any device,
contrivance, instrument, or paraphernalia used for
unlawfully using or administering a controlled
substance, which are possessed in violation of this
division, may be seized by any peace officer and in the
aid of such seizure a search warrant may be issued as
prescribed by law.
AB 1104 would clarify that a search warrant for
controlled substances is already authorized in the
Health and Safety Code by referencing such provision in
Penal Code.
2. Search Warrants
Both the United States and the California constitution's
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. 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.
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(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, this
bill adds a cross- reference to Health and Safety Code section
11472 to provide clarity to agencies on when they may seek a
warrant.
3. Argument in Support
According to the sponsor the California State Sheriffs'
Association:
Because California law is constantly 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
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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 to deliver them to another
person to use drugs.)
Thus, the warrant in issued by authority of Penal Code
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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.
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