BILL ANALYSIS Ó
AB 1705
Page 1
Date of Hearing: March 15, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1705 (Rodriguez) - As Introduced January 25, 2016
SUMMARY: Authorizes law enforcement to use a body scanner to
search a person arrested for the commission of any misdemeanor
or infraction and taken into custody. Specifically, this bill:
Provides that if a person is arrested and taken into custody for
a misdemeanor or infraction, that person may be subjected to a
body scanner search in order to discover and retrieve concealed
weapons and contraband substances before being placed in a
booking cell.
EXISTING STATE LAW:
1)States legislative intent 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 after arrests for minor misdemeanor and
infraction offenses. (Pen. Code, § 4030, subd. (a)(2).)
2)States that when a person is arrested and taken into custody
for a misdemeanor or infraction, that person may be subjected
to pat-down 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. (Pen. Code, § 4030, subd. (d).)
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3)Provides that no arrestee held in custody for a misdemeanor or
infraction, except for those involving weapons, controlled
substances or violence shall 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 such person is concealing a weapon or
contraband, and that a strip search will result in the
discovery of the weapon or contraband. (Pen. Code, § 4030,
subd. (e).)
4)Allows a strip search or body cavity search without reasonable
suspicion based on specific and articulable facts if a person
is arrested on a misdemeanor or infraction involving weapons,
controlled substances, or violence. (Pen. Code, § 4030, subd.
(e).)
5)Requires the supervising officer on duty to authorize a strip
search or visual body cavity search. (Pen. Code, § 4030,
subd. (e).)
6)Prohibits a person arrested and held in custody for a
misdemeanor or infraction not involving weapons, controlled
substances, or violence from being confined in the general
jail population unless the person is not cited and released,
is not released on his or her own recognizance, and is not
able to post bail within a reasonable time, not less than
three hours. (Pen. Code, § 4030, subd. (f).)
7)Prohibits law enforcement from subjecting a person arrested
and held in custody for a misdemeanor or infraction to a
physical body cavity search without obtaining a search
warrant. (Pen. Code, § 4030, subd. (h).)
8)States that when a detainee is being subjected to a strip
search or a body cavity search, the person conducting the
search, as well as persons present or within sight of the
detainee, must be of the same sex as the detainee being
searched. (Pen. Code, § 4030, subd. (k).)
9)Defines "strip search," "physical body cavity search," and
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"visual body cavity search" as specified. (Pen. Code, § 4030,
subd. (c).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Body scanners
are non-invasive devices that efficiently search individuals
for unauthorized substances or weapons, often times reducing
the need for additional and otherwise intrusive search
procedures such as patdowns and full clothing searches. The
same principle of security is used in airports across the
country to screen for unauthorized devices or paraphernalia.
AB 1705 would authorize law enforcement to utilize this
time-saving and effective technology to screen individuals who
have been taken into custody."
2)Jail Searches before Entering the General Population: In
Florence v. Board of Chosen Freeholders of County of
Burlington (2012) 566 U.S. __, 132 S.Ct. 1510, the Supreme
Court, in a 5-4 decision, held that the strip searches for
inmates entering the general population of a prison do not
violate the Fourth Amendment. The Court explicitly refused to
limit the authority to use strip searches only to situations
in which a specific individual gave officers a reason to
consider that prisoner to be dangerous or likely to be
carrying a concealed weapon or drugs. The Court upheld the
validity of strip searches by jail officials for even minor
offenses. The Court concluded that a prisoner's likelihood of
possessing contraband based on the severity of the current
offense or an arrestee's criminal history is too difficult to
determine effectively.
Under California law, a person arrested for a minor
misdemeanor or infraction and taken into custody is subject to
pat down searches, metal detector searches, and thorough
clothing searches in order to discover contraband before being
placed in a booking cell. But the Legislature declared its
intent to strictly limit strip and body cavity searches on
adult and juvenile pre-arraignment detainees arrested for
infractions or misdemeanors. Thus, existing state law
regulates when and how strip searches occur in local detention
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facilities for this population. A person arrested for a
misdemeanor not involving weapons, controlled substances, or
violence cannot as a matter of course be subjected to a strip
search or body cavity search before being placed in the
general population. Strip-searches or body-cavity searches on
these persons require some individualized suspicion.
This bill permits a person arrested for any misdemeanor or
infraction to be subject to a body-scanner search.
3)Body Scanners: Body scanners are designed to uncover what a
physical pat-down could turn up but a metal detector would not
find. The machines would also find guns, knives and other
metallic objects that would set off a metal detector. There
are two main types of body scanners: "millimeter wave" and
"backscatter" machines.
Millimeter wave scanners send millimeter waves over a person and
produce a three-dimensional image by measuring the energy
reflected back. Several studies have determined that
millimeter wave scanners pose little risk to persons subjected
to the scan. The waves produced by these scanners are much
larger than X-rays and are of the non-ionizing variety.
Similar waves surround people every day. For example, a cell
phone relies on millimeter wave technology to send and receive
data and calls. (See e.g.,
http://science.howstuffworks.com/backscatter-machines-vs-millim
eter-wave-scanners.htm .>)
Many millimeter wave scanners use a feature known as automated
target recognition (ATR), which means it can detect threats
and highlight them for easy identification. A millimeter wave
scanner with ATR software produces a generic outline of a
person -- exactly the same for everyone -- highlighting any
areas that may require additional screening. (See e.g.,
Transportation Security Administration (TSA) Website
< https://www.tsa.gov/travel/security-screening >.)
In contrast, backscatter scanners use low-level X-rays to create
a two-dimensional image of the body. X-rays used in airport
full body scanners have minimal interaction at the surface of
the skin.
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( http://science.howstuffworks.com/backscatter-machines-vs-milli
meter-wave-scanners.htm ) One study concluded "there is no
significant threat of radiation from the scans." "The
radiation doses emitted by the scans are extremely small; the
scans deliver an amount of radiation equivalent to 3 to 9
minutes of the radiation received through normal daily
living." (Mehta & Smith-Bindman (2011) Airport Full-Body
Screening: What is the Risk?, <
http://www.ncbi.nlm.nih.gov/pubmed/21444831 >.) The images
produced by backscatter scanners are more detailed than those
produced with millimeter wave scanners.
The original backscatter scanners used by the TSA were
criticized because they revealed precise anatomical detail.
Most of these were pulled from airports and given to prisons
and jails around the country. (Los Angeles Times, March 9,
2016,
.) In July 2014, The Monterey
County Board of Supervisors authorized the Sheriff to purchase
of one of these scanners at a reduced cost.
(< https://monterey.legistar.com/LegislationDetail.aspx?ID=18540
33&GUID=551AC963-2790-44E7-985C-7566FC819129 >.)
This bill treats all body scanners the same, despite the
differences in resulting images. Should there be a
distinction based on the detailed nature of the image? Should
backscatter and full body x-ray scanners be treated like a
virtual strip search?
Similarly, if a jail uses a backscatter or full body x-ray
scanner which shows soft-tissue images, should there be a
policy that jail personnel viewing the image, or within its
sight, be of the same sex as the person being searched, as is
the policy with strip searches? (See Pen. Code, 4030, subd.
(k).)
4)Pregnant Arrestees: According to the U.S. Food and Drug
Administration (FDA), "Diagnostic x-rays and other medical
radiation procedures of the abdominal area also deserve extra
attention during pregnancy." "[X]-rays of the mother's lower
torso - abdomen, stomach, pelvis, lower back, or kidneys - may
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expose the unborn child to the direct x-ray beam." Thus, the
FDA advises, that x-rays of this area "should be used only
when they will give the doctor information needed to treat
you."
(< http://www.fda.gov/Radiation-EmittingProducts/RadiationEmitti
ngProductsandProcedures/MedicalImaging/MedicalX-Rays/ucm142632.
htm >.)
If a jail uses a backscatter scanner or a full-body x-ray
scanner, should an exception be made for female arrestees who
are, or think they may be, pregnant?
5)Retention of Images: Should a law-enforcement agency using
body scanners in a custodial institution have a policy on the
retention of the images?
6)Argument in Support: The California State Sheriffs
Association, the sponsor of this bill, states, "Existing law,
Penal Code Section 4030, establishes a statewide policy
strictly limiting the use of strip and cavity searches for
pre-arraignment detainees arrested for infraction and
misdemeanor offenses, due to their intrusive nature. The
statute specifically states that a person who is arrested and
taken into custody may be subjected to pat down searches,
metal detector searches, and thorough clothing searches in
order to discover and retrieve concealed weapons and
contraband.
The constant flow of contraband is of great concern for
correctional facilities and can present a safety hazard for
the individual, staff, and other inmates. The use of body
scanners is a more efficient, effective, and less invasive
means of assessing if an individual is harboring weapons or
contraband substances than many other methods currently
authorized under state law. Body scanning technology can
detect contraband hidden inside and on a person's body in less
time than conventional search methods and is currently
successfully used in many correctional facilities nationwide.
While current law does not restrict the use of this
technology, it has yet to be updated to specifically authorize
law enforcement personnel to subject individuals who have been
arrested and booked to this type of search."
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7)Argument in Opposition: The American Civil Liberties Union
writes, "The Legislature carefully put strict limits on strip
searches and visual body cavity searches in order to protect
and respect Californians state and federal constitutional
rights to privacy and freedom from unreasonable searches and
seizures. Expanding the law to include body scanners triggers
these same rights.
"Body scanners have been the focus of much public debate in
recent years. Chief among the concerns raised by critics are
those related to the images produced by the scanners, as
certain body scanners have the ability to produce strikingly
graphic images of the searched person's body under the
person's clothes. This type of body scanner, one that
displays a person's soft tissue, or naked body, is essentially
a virtual strip search, permitting those viewing the image to
see the searched person's private body parts, including the
size and shape of the person's breasts and genitals?.
"Without limits to ensure that inmates who are subjected to a
virtual strip search as described above are afforded the same
types of protections as those subject to a traditional strip
search or visual body cavity search, we fear that the privacy
and unreasonable search and seizure concerns so carefully
addressed by Legislatures past may resurface."
8)Prior Legislation:
a) SB 795 (Committee on Public Safety), Chapter 499,
Statutes of 2015, originally included a provision
authorizing the use of body scanners on a person arrested
before placing that person in a booking cell. This
provision was deleted from the bill.
b) AB 303 (Gonzalez), Chapter 464, Statutes of 2015,
requires that during a strip search or body cavity search
of a juvenile, all persons within sight be of the same sex
as the person being searched, except for physicians or
licensed medical personnel.
REGISTERED SUPPORT / OPPOSITION:
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Support
California State Sheriffs Association (Sponsor)
Association for Los Angeles Deputy Sheriffs
California Peace Officers Association
California Police Chiefs Association
California State Association of Counties
Los Angeles Police Protective League
Los Angeles Professional Peace Officers Association
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744