BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1104|
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THIRD READING
Bill No: AB 1104
Author: Rodriguez (D), et al.
Amended: 4/23/15 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/16/15
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
ASSEMBLY FLOOR: 76-0, 4/30/15 - See last page for vote
SUBJECT: Search warrants
SOURCE: Author
DIGEST: 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.
ANALYSIS:
Existing federal law provides in the US Constitution 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
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or things to be seized." (4th Amendment of the U.S.
Constitution.)
Existing state law:
1) Provides in the California Constitution 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.)
2) 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.)
3) Provides that a search warrant may be issued upon specified
grounds. (Penal Code § 1524(a).)
4) 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.
Background
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
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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, 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified 6/16/15)
Association of Deputy District Attorneys
Association for Los Angeles Deputy Sheriffs
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California District Attorneys Association
California Fraternal Order of Police
California Narcotic Officers Association
California Peace Officers' Association
California Police Chiefs Association
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California State Association of Counties
Crime Victims United of California
Long Beach Police Officers Association
Los Angeles County District Attorney's Office
Los Angeles County Professional Peace Officers Association
Los Angeles County Sheriff's Department
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside Sheriffs Association
Rural County Representatives of California
Santa Ana Police Officers Association
San Bernardino County Sheriff
San Diego County Sheriff's Department
Sacramento County Deputy Sheriffs' Association
OPPOSITION: (Verified 6/16/15)
California Public Defenders Association
Legal Services for Prisoners with Children
ASSEMBLY FLOOR: 76-0, 4/30/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,
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, Roger Hernández, Holden, Irwin, Jones,
Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,
Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Wagner, Waldron, Weber, Wilk, Williams, Wood,
Atkins
NO VOTE RECORDED: Campos, Chávez, Nazarian, Ting
Prepared by:Mary Kennedy / PUB. S. /
6/17/15 12:35:08
**** END ****
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