California Legislature—2015–16 Regular Session

Assembly BillNo. 2333


Introduced by Assembly Member Achadjian

February 18, 2016


An act to amend Section 4030 of the Penal Code, relating to jails.

LEGISLATIVE COUNSEL’S DIGEST

AB 2333, as introduced, Achadjian. Jails: searches.

Existing law generally prohibits strip searches and body cavity searches of prearraignment detainees arrested for infraction or misdemeanor offenses. Existing law allows a person who has been arrested and taken into custody to be subjected to patdown 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.

This bill would make technical, nonsubstantive changes to those provisions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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SECTION 1.  

Section 4030 of the Penal Code is amended to
2read:

3

4030.  

(a) (1) The Legislature finds and declares that law
4enforcement policies and practices for conducting strip or body
5cavity searches of detained persons vary widely throughout
6California. Consequently, some people have been arbitrarily
7subjected to unnecessary strip and body cavity searches after arrests
P2    1for minor misdemeanor and infraction offenses. Some present
2search practices violate state and federal constitutional rights to
3privacy and freedom from unreasonable searches and seizures.

4(2) It is the intent of the Legislature in enacting this section to
5protect the state and federal constitutional rights of the people of
6California by establishing a statewide policy strictly limiting strip
7and body cavity searches.

8(b) The provisions of this section shall apply only to
9prearraignment detainees arrested for infraction or misdemeanor
10offenses and to any minor detained prior to a detention hearing on
11the grounds that he or she is a person described in Section 300,
12601, or 602 of the Welfare and Institutions Code alleged to have
13committed a misdemeanor or infraction offense. The provisions
14of this section shall not apply to a person in the custody of the
15Secretary of the Department of Corrections and Rehabilitation or
16the Director of the Division of Juvenile Justice in the Department
17of Corrections and Rehabilitation.

18(c) As used in thisbegin delete sectionend deletebegin insert section,end insert the following definitions
19shall apply:

20(1) “Body cavity” only means the stomach or rectal cavity of a
21person, and vagina of a female person.

22(2) “Physical body cavity search” means physical intrusion into
23a body cavity for the purpose of discovering any object concealed
24in the body cavity.

25(3) “Strip search” means a search which requires a person to
26remove or arrange some or all of his or her clothing so as to permit
27a visual inspection of the underclothing, breasts, buttocks, or
28genitalia ofbegin delete suchend deletebegin insert thatend insert person.

29(4) “Visual body cavity search” means visual inspection of a
30body cavity.

31(d) Notwithstanding any other law, including Section 40304.5
32of the Vehicle Code,begin delete whenend deletebegin insert ifend insert a person is arrested and taken into
33custody, that person may be subjected to patdown searches, metal
34detector searches, and thorough clothing searches in order to
35discover and retrieve concealed weapons and contraband substances
36prior to being placed in a booking cell.

37(e) A personbegin insert who isend insert arrested and held in custody on a
38misdemeanor or infraction offense, except those involving
39weapons, controlled substances, or violence, or a minor detained
40prior to a detention hearing on the grounds that he or she is a person
P3    1described in Section 300, 601 or 602 of the Welfare and Institutions
2Code, except for those minors alleged to have committed felonies
3or offenses involving weapons, controlled substances, or violence,
4shall not be subjected to a strip search or visual body cavity search
5prior to placement in the general jail population, unless a peace
6officer has determined there is reasonable suspicion, based on
7specific and articulable facts, to believe that person is concealing
8a weapon or contraband, and a strip search will result in the
9discovery of the weapon or contraband. A strip search or visual
10body cavity search, or both, shall not be conducted without the
11prior written authorization of the supervising officer on duty. The
12authorization shall include the specific and articulable facts and
13circumstances upon which the reasonable suspicion determination
14was made by the supervisor.

15(f) (1) Except pursuant to the provisions of paragraph (2), a
16person arrested and held in custody on a misdemeanor or infraction
17offense not involving weapons, controlled substances, or violence,
18shall not be confined in the general jail population unless all of
19the following are true:

20(A) The person is not cited and released.

21(B) The person is not released on his or her own recognizance
22pursuant to Article 9 (commencing with Section 1318) of Chapter
231 of Title 10 of Part 2.

24(C) The person is not able to post bail within a reasonable time,
25not less than three hours.

26(2) A person shall not be housed in the general jail population
27prior to release pursuant to the provisions of paragraph (1) unless
28a documented emergency exists and there is no reasonable
29alternative to that placement. The person shall be placed in the
30general population only upon prior written authorization
31documenting the specific facts and circumstances of the emergency.
32The written authorization shall be signed by the uniformed
33supervisor of the facility or by a uniformed watch commander. A
34person confined in the general jail population pursuant to paragraph
35(1) shall retain all rights to release on citation, his or her own
36recognizance, or bail that were preempted as a consequence of the
37emergency.

38(g) A personbegin insert who isend insert arrested on a misdemeanor or infraction
39offense, or a minor described in subdivision (b), shall not be
40subjected to a physical body cavity search except under the
P4    1authority of a search warrant issued by a magistrate specifically
2authorizing the physical body cavity search.

3(h) A copy of the prior written authorization required by
4subdivisions (e) and (f) and the search warrant required by
5subdivision (g) shall be placed in the agency’s records and made
6available, on request, to the person searched or his or her authorized
7representative. With regard to a strip search or visual or physical
8body cavity search, the time, date, and place of the search, the
9name and sex of the person conducting the search, and a statement
10of the results of the search, including a list of items removed from
11the person searched, shall be recorded in the agency’s records and
12made available, upon request, to the person searched or his or her
13authorized representative.

14(i) Persons conducting a strip search or a visual body cavity
15search shall not touch the breasts, buttocks, or genitalia of the
16person being searched.

17(j) A physical body cavity search shall be conducted under
18sanitary conditions, and only by a physician, nurse practitioner,
19registered nurse, licensed vocational nurse, or emergency medical
20technician Level II licensed to practice in this state. A physician
21engaged in providing health care to detainees and inmates of the
22facility may conduct physical body cavity searches.

23(k) A person conducting or otherwise present or within sight of
24the inmate during a strip search or visual or physical body cavity
25search shall be of the same sex as the person being searched, except
26for physicians or licensed medical personnel.

27(l) All strip, visual, and physical body cavity searches shall be
28conducted in an area of privacy so that the search cannot be
29observed by persons not participating in the search. Persons are
30considered to be participating in the search if their official duties
31relative to search procedure require them to be present at the time
32the search is conducted.

33(m) A person who knowingly and willfully authorizes or
34conducts a strip search or visual or physical body cavity search in
35violation of this section is guilty of a misdemeanor.

36(n) begin deleteNothing in this section shall be construed as limiting end deletebegin insertThis
37section does not limit end insert
the common law or statutory rights of a
38person regarding an action for damages or injunctive relief, orbegin delete as
39precludingend delete
begin insert precludeend insert the prosecution under another law of a peace
40officer or other person who has violated this section.

P5    1(o) Any person who suffers damage or harm as a result of a
2violation of this section may bring a civil action to recover actual
3damages, or one thousand dollars ($1,000), whichever is greater.
4In addition, the court may, in its discretion, award punitive
5damages, equitable relief as it deems necessary and proper, and
6costs, including reasonable attorney’s fees.



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