BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
2
3
7
AB 237 (Carter)
As Amended June 11, 2009
Hearing date: July 7, 2009
Vehicle Code
SM:mc
VEHICLE STOPS: METAL PRODUCTS
HISTORY
Source: San Bernardino County Sheriff's Department
Prior Legislation: SB 447 (Maldonado) - Chapter 732, Statutes of
2008
SB 691 (Calderon) - Chapter 730, Statutes of 2008
AB 844 (Berryhill) - Chapter 731, Statutes of 2008
AB 1778 (Ma) - Chapter 733, Statutes of 2008
AB 1859 (Adams) - Chapter 659, Statutes of 2008
AB 2724 (Benoit) - 2008, failed passage in Senate
Public Safety
Support: League of California Cities; California State Sheriffs'
Association
Opposition:Institute of Scrap Recycling Industries, California
Chapters
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUES
SHOULD LOCAL LAW ENFORCEMENT, AS SPECIFIED, BE GIVEN THE SAME
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AUTHORITY AS THE HIGHWAY PATROL TO STOP ANY VEHICLE TRANSPORTING
SPECIFIED PRODUCTS WITHOUT CAUSE, AND CONDUCT AN INSPECTION TO
DETERMINE WHETHER THE DRIVER IS IN LAWFUL POSSESSION OF THE LOAD, AS
SPECIFIED?
SHOULD METAL AND METAL ALLOY PRODUCTS BE ADDED IN THE LIST OF
TRANSPORTED PRODUCTS WHICH SUBJECT A DRIVER TO BEING STOPPED AND A
VEHICLE INSPECTED BY LAW ENFORCEMENT WITHOUT CAUSE, AS SPECIFIED?
PURPOSE
The purpose of this bill is to 1) give local law enforcement, as
specified, the same authority as the California Highway Patrol
to stop any vehicle transporting specified products without
cause and conduct an inspection to determine whether the driver
is in lawful possession of the load, as specified; and 2) expand
the list of transported products which subject a driver to being
stopped and a vehicle inspected by law enforcement without
cause, to include metal and metal alloy products.
Existing law provides that every junk dealer and every recycler,
as defined, in this state is hereby required to keep a written
record of all sales and purchases made in the course of his or
her business. (Bus. & Prof. Code 21605.) Those records must
include:
(1) The place and date of each sale or purchase
of junk made in the conduct of his or her business as
a junk dealer or recycler.
(2) The name, valid driver's license number and
state of issue or California-issued identification
card number, and vehicle license number including the
state of issue of any motor vehicle used in
transporting the junk to the junk dealer's or
recycler's place of business.
(3) The name and address of each person to whom
junk is sold or disposed of, and the license number of
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any motor vehicle used in transporting the junk from
the junk dealer's or recycler's place of business.
(4) A description of the item or items of junk
purchased or sold, including the item type and
quantity, and identification number, if visible.
(5) A statement indicating either that the seller
of the junk is the owner of it, or the name of the
person he or she obtained it from, as shown on a
signed transfer document.
(6) Any person who makes, or causes to be made, any
false or fictitious statement regarding any
information required by this section, is guilty of a
misdemeanor.
(7) Every junk dealer and every recycler shall report
the above information to the chief of police, if the
dealer's or recycler's business is located in a city,
or to the sheriff, if the dealer's or recycler's
business is located in an unincorporated part of a
county, upon request of the chief of police or sheriff
and on a monthly basis, except:
(8) The chief of police or sheriff may request the
report described in this section on a weekly basis if
there is an ongoing investigation of the junk dealer
or recycler concerning possible criminal activity.
The chief of police or sheriff may request weekly
reports for no more than a two-month period unless the
investigation of the junk dealer or recycler continues
and the chief of police or sheriff makes a subsequent
request for weekly reports for an additional two-month
period or part thereof. (Bus. & Prof. Code 21606.)
Existing law provides that any junk dealer or recycler who fails
to keep the required written records, or who refuses, upon
demand, as specified, to exhibit the required written record, or
who destroys that record within two years after making the final
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entry of any purchase or sale of junk therein is guilty of a
misdemeanor. (Bus. & Prof. Code 21608 (a).) Violations are
punishable as follows:
(1) For a first offense, by a fine of not less
than $500, or by imprisonment in the county jail for
not less than 30 days, or both.
(2) For a second offense, by a fine of not less
than $1000, or by imprisonment in the county jail
for not less than 30 days, or both. In addition to
any other sentence imposed pursuant to this
paragraph, the court may order the defendant to stop
engaging in business as a junk dealer or recycler
for a period not to exceed 30 days.
(3) For a third or any subsequent offense, by a
fine of not less than $2000, or by imprisonment in
the county jail for not less than six months, or
both. In addition to any other sentence imposed
pursuant to this paragraph, the court shall order
the defendant to stop engaging in business as a junk
dealer or recycler for a period of 30 days. (Bus. &
Prof. Code 21608 (b).)
Existing law defines a "secondhand dealer" as any person or
entity taking in pawn, accepting for sale of consignment,
trading, etc., any tangible personal property. (Bus. & Prof.
Code 21625.)
Existing law defines a pawnbroker as a "person engaged in the
business of receiving goods in pledge for security for a loan."
(Fin. Code 21000.)
Existing law provides that, except as specified, a junk dealer
or recycler in this state shall not provide payment for
nonferrous material unless, in addition to meeting the written
record requirements of Sections 21605 and 21606, all of the
following requirements are met:
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The payment for the material is made by cash or check.
The check may be mailed to the seller at a verified
address, as specified below, or the cash or check may be
collected by the seller from the junk dealer or recycler on
the third business day after the date of sale.
At the time of sale, the junk dealer or recycler obtains
a clear photograph or video of the seller.
Except as provided below, the junk dealer or recycler
obtains a copy of the valid driver's license of the seller
containing a photograph and an address of the seller or a
copy of a state or federal government-issued identification
card containing a photograph and an address of the seller.
If the seller prefers to have the check for the material
mailed to an alternative address, other than a post office
box, the junk dealer or recycler shall obtain a copy of a
driver's license or identification card, as specified, and
a gas or electric utility bill addressed to the seller at
that alternative address with a payment due date no more
than two months prior to the date of sale. For purposes of
this paragraph, "alternative address" means an address that
is different from the address appearing on the seller's
driver's license or identification card.
The junk dealer or recycler obtains a clear photograph
or video of the nonferrous material being purchased.
The junk dealer or recycler shall preserve the
information obtained pursuant to this paragraph for a
period of two years after the date of sale.
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The junk dealer or recycler obtains a thumbprint of the
seller, as prescribed by the Department of Justice. The
junk dealer or recycler shall keep this thumbprint with the
information obtained under this subdivision and shall
preserve the thumbprint in either hardcopy or electronic
format for a period of two years after the date of sale.
Inspection or seizure of the thumbprint shall only be
performed by a peace officer acting within the scope of his
or her authority in response to a criminal search warrant
signed by a magistrate and served on the junk dealer or
recycler by the peace officer. Probable cause for the
issuance of that warrant must be based upon a theft
specifically involving the transaction for which the
thumbprint was given. (Bus. & Prof. Code 21608.5.)
Existing law (subdivisions of Bus. & Prof. Code 21628)
provides that pawnbrokers and secondhand dealers shall report
daily on forms approved or provided by the Department of
Justice, all personal property purchased, taken in trade, taken
in pawn, etc., to local law enforcement. The report shall
include the following information:
The name and current address and identification
of the intended seller or pledgor of the property
(subds. (a)-(b));
A complete and reasonably accurate description of
serialized or nonserialized property (subds.
(c)-(d));
A certification by the intended seller or pledgor
that he or she is the owner of the property, or has
the authority of the owner to sell or pledge the
property and that any information provided is true
and complete (subds. (e)-(f)); and
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A legible fingerprint taken from the intended
seller or pledgor (subd. (g)).
Existing law provides that the Department of Justice ("DOJ")
shall, in consultation with local law enforcement, develop clear
and comprehensive categories of property subject to reporting
requirements in Business and Professions Code Section 21628.
The categories shall be incorporated by secondhand dealers and
coin dealers (Bus. & Prof. Code 21626) for reporting
requirements. DOJ and local law enforcement, in consultation
with secondhand dealer and coin dealer representatives, shall
develop a standard statewide format for electronic reporting.
Twelve months after the format and the categories have been
developed, each secondhand dealer and coin dealer shall make
reports electronically. Until that time, each secondhand dealer
and coin dealer may either continue to report this information
using existing forms and procedures or may begin electronically
reporting this information under the reporting categories and
using the new format when it has been developed. (Bus. & Prof.
Code 21628.)
Existing law requires a secondhand dealer to make acquired
property available for law enforcement inspection for specified
time periods. (Bus. & Prof. Code 21636.)
Existing law allows a member of the California Highway Patrol
("CHP") to stop any vehicle transporting any timber products,
livestock, poultry, farm produce, crude oil, petroleum products,
or inedible kitchen grease, and inspect the bills of lading,
shipping or delivery papers, or other evidence to determine
whether the driver is in legal possession of the load, and, upon
reasonable belief that the driver of the vehicle is not in legal
possession, shall take custody of the vehicle and load and turn
them over to the custody of the sheriff of the county in which
the timber products, livestock, poultry, farm produce, crude
oil, petroleum products, or inedible kitchen grease, or any part
thereof, is apprehended. (Vehicle Code 2810(a).)
Existing law states that the sheriff shall receive and provide
for the care and safekeeping of the apprehended timber products,
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livestock, poultry, farm produce, crude oil, petroleum products,
or inedible kitchen grease, or any part thereof, and
immediately, in cooperation with the department, proceed with an
investigation and its legal disposition. (Vehicle Code
2810(b).)
This bill would amend the above provisions to allow a member of
the California Highway Patrol, a member of a city police
department, whose primary responsibility is to conduct theft
investigations, or a member of a county's sheriff's office,
whose primary responsibility is to conduct theft investigations,
may stop a vehicle transporting timber products, livestock,
poultry, farm produce, crude oil, petroleum products, metal
products, metal alloy products, or inedible kitchen grease, and
inspect the bills of lading, shipping or delivery papers, or
other evidence to determine whether the driver is in legal
possession of the load, and, upon reasonable belief that the
driver of the vehicle is not in legal possession, shall take
custody of the vehicle and load and turn them over to the
custody of the sheriff of the county in which the timber
products, livestock, poultry, farm produce, crude oil, petroleum
products, metal products, metal alloy products, or inedible
kitchen grease, or any part of those loads, is apprehended.
This bill provides that the sheriff shall receive and provide
for the care and safekeeping of the apprehended timber products,
livestock, poultry, farm produce, crude oil, petroleum products,
metal products, metal alloy products, or inedible kitchen
grease, or any part of those loads, and immediately, in
cooperation with the department or a city police department,
proceed with an investigation and its legal disposition.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
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of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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COMMENTS
1. Need for This Bill
Current California Vehicle Code (CVC) section 2810
allows for a California Highway Patrol officer to stop
any vehicle transporting certain products, and inspect
certain loads to determine ownership and if the driver
is in legal possession of the load. Metal and metal
alloy products are not one of the materials included
in the statute. With the prevalence of metal thefts
from large construction sites, public utility yards,
farms, ranches, schools, etc., it would aid law
enforcement to curtail the rampant metal thefts by
being allowed to inspect certain loads for metal and
metal alloy, in the furtherance of their
investigations. Metal theft is one of the fastest
growing crimes in the state and country. The recent
rise in scrap metal values has made the theft and sale
of these materials increasingly profitable. The
proposed changes to CVC 2810 will expand statutory
authority to sheriffs and police officers
(specifically trained in theft investigations).
2. The Problem of Metal Theft
The problem of metal theft has been well documented throughout
the state. In 2007, the New York Times reported:
"This is the No. 1 crime affecting farmers and
ranchers right now," said Bill Yoshimoto, an
assistant district attorney in the agriculturally
rich Tulare County in the Central Valley.
"Virtually every farmer in the Central Valley has
been hit," Mr. Yoshimoto said. "But some have
been hit far beyond the value of the metal. For
the farmer to replace the pump is anywhere
between $3,000 to $10,000, and then there is
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downtime, and loss to crops."
Some sheriff's departments in agricultural
counties have rural crime units that investigate
metal crimes almost exclusively these days,
setting up sting operations in recycling shops
and tagging copper bait with electronic tracking
devices.
Metal theft from California farmers rose 400
percent in 2006 over the previous year,
according to the Agricultural Crime Technology
Information and Operations Network, a regional
law enforcement group headed by Mr. Yoshimoto.
The numbers this year are equally high.
Through the end of June, there were nearly 1000
incidents of scrap metal theft on farms,
causing more than $2 billion in losses, the
group's figures show.
(Unusual Culprits Cripple Farms in California, New
York Times , July 1, 2007,
http://www.nytimes.com/2007/07/31/us/31copper.html?
_r=1&oref=slogin&fta=y&pagewanted=print )
Metal theft has not been confined to farms and rural areas. The
Monterey County Herald reports:
Demand for copper, brass, platinum, stainless
steel and other valuable metals has turned the
underside of cars, abandoned buildings, farms,
freeways and industrial yards into gold mines for
thieves.
"It's an easy way to make a quick buck," said
sheriff's detective Matt Davis. "Everybody is
stealing."
On Monday, deputies found three men stripping
almost 900 feet of copper cable, which appeared
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to have been stolen from an industrial yard.
They could have sold the copper for about $6500,
Davis said.
"It's happening all over the state," he said.
* * * * * *
Robert Gomez, manager of a Salinas auto shop,
said recently he welded a catalytic converter
back onto a truck after thieves tried to remove
it. Other shops report making similar repairs
for customers.
Gomez said catalytic converters are hot items for
thieves because they have valuable metals and are
easy to get to.
"They can just slide right under (a car) and get
to it," he said. "The value is the stuff inside."
A stolen converter can be sold for about $100 for
the metal it contains. But the owner of the
vehicle may have to spend up to $500 to replace
it, Gomez said.
* * * * *
In Southern California, thieves have made off
with guardrails and road signs on freeways,
according to the state Department of
Transportation.
In Contra Costa County, suspected metal thieves are
believed to have caused a toxic spill after they
took brass fittings from tanks at a chemical plant
in Richmond.
Last week at a ballpark in Ventura, thieves
stripped wires from an electrical vault, damaging
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lights used for Little League games.
Jeff Smith, a spokesman for Pacific Gas &
Electric Co., said theft of electrical wire is
costly and thieves risk electrocution, even when
the power has been shut off.
During the first six months of 2007, PG&E lost
more than $800,000 worth of copper cable to
thievery at service yards, power plants and
utility connections in Northern California, Smith
said.
"Like anything else, when the market value goes
up, it becomes a target," Smith said. "It's
become increasingly more serious every year."
(Metal marauders on loose, Monterey County
Herald , May 10, 2008,
http://www.montereyherald.com/local/ci_9217926 )
3. Vehicle Stops Are "Seizures" and Must Comport with the Fourth
Amendment
The United States Supreme Court has stated:
The Fourth Amendment guarantees "the right of the
people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and
seizures." Temporary detention of individuals during
the stop of an automobile by the police, even if only
for a brief period and for a limited purpose,
constitutes a "seizure" of "persons" within the
meaning of this provision. An automobile stop is thus
subject to the constitutional imperative that it not
be "unreasonable" under the circumstances. (Whren v.
United States, 517 U.S. 806, 809-810 (U.S. 1996)
(Citations omitted).)
4. When Vehicle Stops Are Permitted Without a Warrant or Probable
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Cause
Immigration Stops
In some circumstances, the Court has found that vehicle stops
limited in scope and duration are permitted based on less than
probable cause. Based on the circumstances involved in
enforcing immigration laws the Court has held that immigration
stops that take place near the international border and are
limited in scope and duration may be based on reasonable
suspicion that the occupants of the vehicle may be in violation
of immigration laws. However, the Court stated, "We are
unwilling to let the Border Patrol dispense entirely with the
requirement that officers must have a reasonable suspicion to
justify roving-patrol stops." (United States v. Brignoni-Ponce,
422 U.S. 873, 881-882 (U.S. 1975).) The court went on to find
that the sole fact that someone in a vehicle appears to be of
Mexican ancestry does not amount to reasonable suspicion of a
crime so as to justify a traffic stop:
In this case the officers relied on a single factor to
justify stopping respondent's car: the apparent
Mexican ancestry of the occupants. We cannot conclude
that this furnished reasonable grounds to believe that
the three occupants were aliens. At best the officers
had only a fleeting glimpse of the persons in the
moving car, illuminated by headlights. Even if they
saw enough to think that the occupants were of Mexican
descent, this factor alone would justify neither a
reasonable belief that they were aliens, nor a
reasonable belief that the car concealed other aliens
who were illegally in the country. Large numbers of
native-born and naturalized citizens have the physical
characteristics identified with Mexican ancestry, and
even in the border area a relatively small proportion
of them are aliens. The likelihood that any given
person of Mexican ancestry is an alien is high enough
to make Mexican appearance a relevant factor, but
standing alone it does not justify stopping all
Mexican-Americans to ask if they are aliens. (United
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States v. Brignoni-Ponce, 422 U.S. 873, 885-887 (1975)
(footnote omitted.).)
This bill would allow any member of the CHP, local police or
sheriff's department "whose primary responsibility is to conduct
theft investigations," to stop a vehicle based solely on the
fact that the vehicle contains metal products or metal alloy
products, and "inspect the bills of lading, shipping or delivery
papers, or other evidence to determine whether the driver is in
legal possession of the load. . . ." In other words, this bill
would authorize these employees of the CHP, or local police or
sheriff's departments<3> to pull over a vehicle not based on
probable cause, or even on reasonable suspicion of any
wrongdoing, but solely based on the fact that the vehicle
contained "metal products."
To allow police to affect a vehicle stop based on a single fact
that is as consistent with legal behavior as it is with illegal
behavior, i.e., the presence of a "metal product" (presumably
meaning any product containing any metal) in the vehicle,
appears to violate the Fourth Amendment just as does stopping a
vehicle based only on the presence of a person in the vehicle
who appears to be of Mexican ancestry. Neither amounts to
reasonable suspicion, much less probable cause, of any
wrongdoing.
Administrative Searches
The existing law, limited as it is to allowing only CHP officers
to stop vehicles carrying timber products, livestock, poultry,
farm produce, crude oil, petroleum products, or inedible kitchen
grease, might present a closer Constitutional question than the
significant expansion proposed in this bill, although the
constitutionality of the existing statute is by no means clear.
No court decision has ever been published on the validity of
that statute.
The Court has recognized an exception to the warrant requirement
---------------------------
<3> The bill does not limit this authority to sworn peace
officers.
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for 'administrative searches' of business premises in heavily
regulated businesses. "An administrative inspection is the
inspection of business premises conducted by authorities
responsible for enforcing a pervasive regulatory scheme -- for
example, unannounced inspection of a mine for compliance with
health and safety standards." (Whren v. United States, 517 U.S.
806, 812 (1996)(Citation omitted).)
The three-part test for when a warrantless search might be
justified under the administrative search exception was
articulated in New York v. Burger as follows:
Because the owner or operator of commercial premises
in a "closely regulated" industry has a reduced
expectation of privacy, the warrant and probable-cause
requirements, which fulfill the traditional Fourth
Amendment standard of reasonableness for a government
search, see O'Connor v. Ortega, 480 U.S. 709, 741
(1987) (dissenting opinion), have lessened application
in this context. Rather, we conclude that, as in
other situations of "special need," see New Jersey v.
T. L. O., 469 U.S. 325, 353 (1985) (opinion concurring
in judgment), where the privacy interests of the owner
are weakened and the government interests in
regulating particular businesses are concomitantly
heightened, a warrantless inspection of commercial
premises may well be reasonable within the meaning of
the Fourth Amendment.
This warrantless inspection, however, even in the
context of a pervasively regulated business, will be
deemed to be reasonable only so long as three criteria
are met. First, there must be a "substantial"
government interest that informs the regulatory scheme
pursuant to which the inspection is made.
Second, the warrantless inspections must be "necessary
to further [the] regulatory scheme." For example, in
Dewey we recognized that forcing mine inspectors to
obtain a warrant before every inspection might alert
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mine owners or operators to the impending inspection,
thereby frustrating the purposes of the Mine Safety
and Health Act -- to detect and thus to deter safety
and health violations.
Finally, "the statute's inspection program, in terms
of the certainty and regularity of its application,
[must] provid[e] a constitutionally adequate
substitute for a warrant." Ibid. In other words, the
regulatory statute must perform the two basic
functions of a warrant: it must advise the owner of
the commercial premises that the search is being made
pursuant to the law and has a properly defined scope,
and it must limit the discretion of the inspecting
officers. To perform this first function, the statute
must be "sufficiently comprehensive and defined that
the owner of commercial property cannot help but be
aware that his property will be subject to periodic
inspections undertaken for specific purposes." In
addition, in defining how a statute limits the
discretion of the inspectors, we have observed that it
must be "carefully limited in time, place, and scope."
(New York v. Burger, 482 U.S. 691, 702-703 (1987)
(Citations omitted).)
While warrantless administrative searches of certain business
premises under certain circumstances have been authorized under
the administrative search exception, the Supreme Court has long
held that the Fourth Amendment does not permit police to be
given unfettered discretion to perform vehicle stops, even just
to check for driver's license and vehicle registration, without
some evidence of wrongdoing:
An individual operating or traveling in an automobile
does not lose all reasonable expectation of privacy
simply because the automobile and its use are subject
to government regulation. Automobile travel is a
basic, pervasive, and often necessary mode of
transportation to and from one's home, workplace, and
leisure activities. Many people spend more hours each
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day traveling in cars than walking on the streets.
Undoubtedly, many find a greater sense of security and
privacy in traveling in an automobile than they do in
exposing themselves by pedestrian or other modes of
travel. Were the individual subject to unfettered
governmental intrusion every time he entered an
automobile, the security guaranteed by the Fourth
Amendment would be seriously circumscribed. As Terry
v. Ohio, supra, recognized, people are not shorn of
all Fourth Amendment protection when they step from
their homes onto the public sidewalks. Nor are they
shorn of those interests when they step from the
sidewalks into their automobiles. Cf. Marshall v.
Barlow's, Inc., 436 U.S. 307 (1978) (warrant required
for federal inspection under interstate commerce power
of health and safety of workplace); See v. Seattle,
387 U.S. 541 (1967) (warrant required for inspection
of warehouse for municipal fire code violations);
Camara v. Municipal Court, 387 U.S. 523 (1967)
(warrant required for inspection of residence for
municipal fire code violations).
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Accordingly, we hold that except in those situations
in which there is at least articulable and reasonable
suspicion that a motorist is unlicensed or that an
automobile is not registered, or that either the
vehicle or an occupant is otherwise subject to seizure
for violation of law, stopping an automobile and
detaining the driver in order to check his driver's
license and the registration of the automobile are
unreasonable under the Fourth Amendment . This holding
does not preclude the State of Delaware or other
States from developing methods for spot checks that
involve less intrusion or that do not involve the
unconstrained exercise of discretion. Questioning of
all oncoming traffic at roadblock-type stops is one
possible alternative. We hold only that persons in
automobiles on public roadways may not for that reason
alone have their travel and privacy interfered with at
the unbridled discretion of police officers.
(Delaware v. Prouse, 440 U.S. 648, 663 (1979) (Some
citations omitted, emphasis added.)
Sobriety Checkpoints
The Supreme Court has found that warrantless searches of a
limited nature may take place in the form of sobriety
checkpoints. The Court, however, distinguished the level of
intrusion involved in a sobriety checkpoint from that in a
"roving stop:"
Comparing checkpoint stops to roving patrol stops
considered in prior cases, we said,
We view checkpoint stops in a different light because
the subjective intrusion -- the generating of concern
or even fright on the part of lawful travelers -- is
appreciably less in the case of a checkpoint stop. In
[United States v.] Ortiz, [422 U.S. 891 (1975),] we
noted:
(More)
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"'The circumstances surrounding a checkpoint stop and
search are far less intrusive than those attending a
roving-patrol stop. Roving patrols often operate at
night on seldom-traveled roads, and their approach may
frighten motorists. At traffic checkpoints the
motorist can see that other vehicles are being
stopped, he can see visible signs of the officers'
authority, and he is much less likely to be frightened
or annoyed by the intrusion.' 422 U.S., at 894-895."
Martinez-Fuerte, 428 U.S., at 558. (Mich. Dep't of
State Police v. Sitz, 496 U.S. 444, 452-453 (1990).)
The vehicle stops proposed in this bill are not checkpoint stops
but are "roving stops" that the Court found more intrusive and
therefore do not fall under any exception to the warrant
requirement similar to sobriety checkpoints.
WOULD PERMITTING PEACE OFFICERS WHOSE PRIMARY DUTY IS TO
INVESTIGATE THEFT TO STOP VEHICLES BASED ON THE FACT THE METAL
PRODUCTS ARE PRESENT IN THE VEHICLE VIOLATE THE FOURTH
AMENDMENT?
ASSUMING ANY SUCH STOP WAS PERMISSIBLE UNDER THE FOURTH
AMENDMENT, WOULD ALLOWING THE OFFICER TO INSPECT BILLS OF LADING
AND ANY "OTHER EVIDENCE" TO DETERMINE IF THE METAL PRODUCTS ARE
STOLEN EXCEED THE PERMISSIBLE SCOPE OF ANY VEHICLE STOP MADE ON
THIS BASIS?
One danger of enacting a procedure that is subsequently
determined to be unconstitutional is that any convictions based
on that procedure that occurred prior to the statute being
invalidated would then very likely be overturned. (See United
States v. Leon, 468 U.S. 897 (1984).) The Legislature has
passed several bills in recent years to address the pervasive
problem of metal theft. Members may wish to consider whether
the time and resources law enforcement agencies devote to
apprehending metal thieves may be wasted if the suspects are
arrested utilizing a procedure that is later found to be
unconstitutional.
AB 237 (Carter)
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COULD ANY ARRESTS MADE UNDER THIS PROPOSED PROCEDURE RESULT IN A
WASTE OF LAW ENFORCEMENT RESOURCES, THE DISMISSAL OF CASES BASED
ON THESE VEHICLE STOPS, AND THE RELEASE OF METAL THIEVES?
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