BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1705|
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THIRD READING
Bill No: AB 1705
Author: Rodriguez (D)
Amended: 6/8/16 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/28/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
ASSEMBLY FLOOR: 60-4, 3/31/16 - See last page for vote
SUBJECT: Jails: searches
SOURCE: California State Sheriffs' Association
DIGEST: This bill 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.
ANALYSIS:
Existing 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. (Penal Code § 4030(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
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placed in a booking cell. (Penal Code § 4030(d).)
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
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).)
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. (Penal Code § 4030 (e).)
5)Requires the supervising officer on duty to authorize a strip
search or visual body cavity search. (Penal Code § 4030(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. (Penal Code § 4030(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. (Penal Code § 4030(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. (Penal Code § 4030(k).)
9)Defines "strip search," "physical body cavity search," and
"visual body cavity search," as specified. (Penal Code §
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4030(c).)
This bill:
1)Allows law enforcement personnel to subject a person who is
arrested and taken into custody to a body scanner search for
those weapons or substances.
2)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.
3)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.
Comments
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
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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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified 7/6/16)
California State Sheriffs' Association (source)
Association for Los Angeles Deputy Sheriffs
California Peace Officers' Association
California Police Chiefs Association
California State Association of Counties
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: (Verified7/6/16)
American Civil Liberties Union
California Attorneys for Criminal Justice
Legal Services for Prisoners with Children
ARGUMENTS IN SUPPORT: The California State Sheriffs'
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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.
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.
ARGUMENTS 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
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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.
ASSEMBLY FLOOR: 60-4, 3/31/16
AYES: Achadjian, Alejo, Travis Allen, Baker, Bloom, Brough,
Burke, Calderon, Chang, Chau, Chávez, Chiu, Chu, Cooley,
Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth
Gaines, Gallagher, Eduardo Garcia, Gatto, Gipson, Gomez,
Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden,
Irwin, Jones, Kim, Lackey, Levine, Lopez, Low, Maienschein,
Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte,
O'Donnell, Olsen, Patterson, Ridley-Thomas, Rodriguez, Salas,
Thurmond, Waldron, Wilk, Williams, Wood, Rendon
NOES: Jones-Sawyer, Quirk, Mark Stone, Ting
NO VOTE RECORDED: Atkins, Bigelow, Bonilla, Bonta, Brown,
Campos, Cristina Garcia, Grove, Harper, Linder, Melendez,
Santiago, Steinorth, Wagner, Weber
Prepared by:Jessica Devencenzi / PUB. S. /
7/29/16 10:43:33
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