BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1104| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1104 Author: Rodriguez (D), et al. Amended: 6/23/15 in Senate 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. Senate Floor Amendments of 6/23/15 add double-jointing language to prevent chaptering problems between this bill and AB 539 (Levine). ANALYSIS: Existing federal law provides in the U.S. 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 AB 1104 Page 2 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.) 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: 1)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. AB 1104 Page 3 2)Contains double-jointing language to prevent chaptering problems between this bill and AB 539 (Levine). 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 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 6/23/15) AB 1104 Page 4 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 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 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 6/23/15) 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, AB 1104 Page 5 Atkins NO VOTE RECORDED: Campos, Chávez, Nazarian, Ting Prepared by:Mary Kennedy / PUB. 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