BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1705| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 AB 1705 Page 2 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 § AB 1705 Page 3 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 AB 1705 Page 4 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' AB 1705 Page 5 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 AB 1705 Page 6 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 **** END **** AB 1705 Page 7