Amended in Senate June 8, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1705

Introduced by Assembly Member Rodriguez

January 25, 2016

An act to amend Section 4030 of the Penal Code, relating to jails.

LEGISLATIVE COUNSEL’S DIGEST

AB 1705, as amended, Rodriguez. Jails: searches.

Existing law generally prohibits strip searches and body cavity searches of prearraignment detainees arrested for infraction or misdemeanor offenses. Existing law allows a person who has been arrested and taken into custody to be subjected to patdown searches, metal detector searches, and thorough clothing searches in order to discover and retrieve concealed weapons and contraband substances prior to being placed in a booking cell.

This bill would also allow law enforcement personnel to subject a person who is arrested and taken into custody to a body scanner search for those weapons or substances. begin insert The bill would require an agency utilizing a body scanner to endeavor to avoid knowingly using a body scanner to scan a woman who is pregnant. The bill would require a person within sight of the visual display of a body scanner depicting the body during a scan to be of the same sex as the person being scanned, except for physicians or licensed medical personnel. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 4030 of the Penal Code is amended to
read:

4030.  

(a) (1) The Legislature finds and declares that law
enforcement policies and practices for conducting strip or body
cavity searches of detained persons vary widely throughout
California. Consequently, some people have been arbitrarily
subjected to unnecessary strip and body cavity searches after arrests
for minor misdemeanor and infraction offenses. Some present
search practices violate state and federal constitutional rights to
privacy and freedom from unreasonable searches and seizures.

(2) It is the intent of the Legislature in enacting this section to
protect the state and federal constitutional rights of the people of
California by establishing a statewide policy strictly limiting strip
and body cavity searches.

(b) The provisions of this section shall apply only to
prearraignment detainees arrested for infraction or misdemeanor
offenses and to any minor detained prior to a detention hearing on
the grounds that he or she is a person described in Section 300,
601, or 602 of the Welfare and Institutions Code alleged to have
committed a misdemeanor or infraction offense. The provisions
of this section shall not apply to a person in the custody of the
Secretary of the Department of Corrections and Rehabilitation or
the Director of the Division of Juvenile Justice in the Department
of Corrections and Rehabilitation.

(c) As used in this section the following definitions shall apply:

(1) “Body cavity” only means the stomach or rectal cavity of a
person, and vagina of a female person.

(2) “Physical body cavity search” means physical intrusion into
a body cavity for the purpose of discovering any object concealed
in the body cavity.

(3) “Strip search” means a search which requires a person to
remove or arrange some or all of his or her clothing so as to permit
a visual inspection of the underclothing, breasts, buttocks, or
genitalia of such person.

(4) “Visual body cavity search” means visual inspection of a
body cavity.

(d)  begin insert (1) end insert begin insert   end insert Notwithstanding any other law, including Section
40304.5 of the Vehicle Code, if a person is arrested and taken into
custody, that person may be subjected to patdown searches, metal
detector searches, body scanners, and thorough clothing searches
in order to discover and retrieve concealed weapons and contraband
substances prior to being placed in a booking cell.

begin insert

(2) An agency that utilizes a body scanner pursuant to this
subdivision shall endeavor to avoid knowingly using a body
scanner to scan a woman who is pregnant.

end insert

(e) A person arrested and held in custody on a misdemeanor or
infraction offense, except those involving weapons, controlled
substances, or violence, or a minor detained prior to a detention
hearing on the grounds that he or she is a person described in
Section 300, begin delete 601 end delete begin insert 601, end insert or 602 of the Welfare and Institutions Code,
except for those minors alleged to have committed felonies or
offenses involving weapons, controlled substances, or violence,
shall not be subjected to a strip search or visual body cavity search
prior to placement in the general jail population, unless a peace
officer has determined there is reasonable suspicion, based on
specific and articulable facts, to believe that person is concealing
a weapon or contraband, and a strip search will result in the
discovery of the weapon or contraband. A strip search or visual
body cavity search, or both, shall not be conducted without the
prior written authorization of the supervising officer on duty. The
authorization shall include the specific and articulable facts and
circumstances upon which the reasonable suspicion determination
was made by the supervisor.

(f) (1) Except pursuant to the provisions of paragraph (2), a
person arrested and held in custody on a misdemeanor or infraction
offense not involving weapons, controlled substances, or violence,
shall not be confined in the general jail population unless all of
the following are true:

(A) The person is not cited and released.

(B) The person is not released on his or her own recognizance
pursuant to Article 9 (commencing with Section 1318) of Chapter
1 of Title 10 of Part 2.

(C) The person is not able to post bail within a reasonable time,
not less than three hours.

(2) A person shall not be housed in the general jail population
prior to release pursuant to the provisions of paragraph (1) unless
a documented emergency exists and there is no reasonable
alternative to that placement. The person shall be placed in the
general population only upon prior written authorization
documenting the specific facts and circumstances of the emergency.
The written authorization shall be signed by the uniformed
supervisor of the facility or by a uniformed watch commander. A
person confined in the general jail population pursuant to paragraph
(1) shall retain all rights to release on citation, his or her own
recognizance, or bail that were preempted as a consequence of the
emergency.

(g) A person arrested on a misdemeanor or infraction offense,
or a minor described in subdivision (b), shall not be subjected to
a physical body cavity search except under the authority of a search
warrant issued by a magistrate specifically authorizing the physical
body cavity search.

(h) A copy of the prior written authorization required by
subdivisions (e) and (f) and the search warrant required by
subdivision (g) shall be placed in the agency’s records and made
available, on request, to the person searched or his or her authorized
representative. With regard to a strip search or visual or physical
body cavity search, the time, date, and place of the search, the
name and sex of the person conducting the search, and a statement
of the results of the search, including a list of items removed from
the person searched, shall be recorded in the agency’s records and
made available, upon request, to the person searched or his or her
authorized representative.

(i) Persons conducting a strip search or a visual body cavity
search shall not touch the breasts, buttocks, or genitalia of the
person being searched.

(j) A physical body cavity search shall be conducted under
sanitary conditions, and only by a physician, nurse practitioner,
registered nurse, licensed vocational nurse, or emergency medical
technician Level II licensed to practice in this state. A physician
engaged in providing health care to detainees and inmates of the
facility may conduct physical body cavity searches.

(k)  begin insert (1) end insert begin insert   end insert A person conducting or otherwise present or within sight
of the inmate during a strip search or visual or physical body cavity
search shall be of the same sex as the person being searched, except
for physicians or licensed medical personnel.

begin insert

(2) A person within sight of the visual display of a body scanner
depicting the body during a scan shall be of the same sex as the
person being scanned, except for physicians or licensed medical
personnel.

end insert

(l) All strip, visual, and physical body cavity searches shall be
conducted in an area of privacy so that the search cannot be
observed by persons not participating in the search. Persons are
considered to be participating in the search if their official duties
relative to search procedure require them to be present at the time
the search is conducted.

(m) A person who knowingly and willfully authorizes or
conducts a strip search or visual or physical body cavity search in
violation of this section is guilty of a misdemeanor.

(n) This section does not limit the common law or statutory
rights of a person regarding an action for damages or injunctive
relief, or preclude the prosecution under another law of a peace
officer or other person who has violated this section.

(o) Any person who suffers damage or harm as a result of a
violation of this section may bring a civil action to recover actual
damages, or one thousand dollars ($1,000), whichever is greater.
In addition, the court may, in its discretion, award punitive
damages, equitable relief as it deems necessary and proper, and
costs, including reasonable attorney’s fees.