BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1705 Hearing Date: June 14, 2016
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|Author: |Rodriguez |
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|Version: |June 8, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JRD |
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Subject: Jails: Searches
HISTORY
Source: California State Sheriffs' Association
Prior Legislation:SB 795 (Committee on Public Safety) - Chapter
499, Statutes of 2015
AB 303 (Gonzalez) - Chapter 464, Statutes of 2015
Support: California Peace Officers' Association; California
Police Chiefs Association; California State
Association of Counties; Association for Los Angeles
Deputy Sheriffs; Los Angeles County Sheriff's
Department; Los Angeles Police Protective League; Los
Angeles Professional Peace Officers Association;
Orange County Board of Supervisors; Peace Officers
Research Association of California; Riverside Sheriffs
Association
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice; Legal Services for Prisoners
with Children
Assembly Floor Vote: 60 - 4
AB 1705 (Rodriguez ) Page
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PURPOSE
The purpose of this bill is to authorize law enforcement to use
a body scanner to search a person arrested for the commission of
any misdemeanor or infraction and taken into custody, as
specified.
Existing law 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. (Penal Code § 4030(a)(2).)
Existing law 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. (Penal Code § 4030(d).)
Existing law 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 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. (Penal Code § 4030(e).)
Existing law 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. (Penal Code § 4030
(e).)
Existing law requires the supervising officer on duty to
authorize a strip search or visual body cavity search. (Pena
Code § 4030(e).)
Existing law 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
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released on his or her own recognizance, and is not able to post
bail within a reasonable time, not less than three hours.
(Penal Code§ 4030(f).)
Existing law 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. (Penal Code § 4030(h).)
Existing law 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. (Penal Code § 4030(k).)
Existing law defines "strip search," "physical body cavity
search," and "visual body cavity search" as specified. (Penal
Code § 4030(c).)
This bill would 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.
This bill provides that an agency that utilizes a body scanner
shall endeavor to avoid knowingly using a body scanner to scan a
woman who is pregnant.
This bill provides that 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
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the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
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dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
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.Effect of Legislation
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.
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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 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. 2015 Public Safety Omnibus Bill
Senate Bill 795 (Committee on Public Safety, 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 in the bill when it passed out
of the Senate with no "no" votes and was deleted from the bill
in the Assembly.
4. Argument in Support
The California State Sheriffs Association 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.
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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.
5. Argument in Opposition
The American Civil Liberties Union states:
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
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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.
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