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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