BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 532 (Lieu)
As Amended April 13, 2009
Hearing date: June 16, 2009
Penal Code
AA:mc
SEARCH WARRANTS:
FIREARMS IN DOMESTIC VIOLENCE SITUATIONS
HISTORY
Source: Los Angeles County District Attorney's Office; Los
Angeles County Sheriff's Department
Prior Legislation: SB 585 (Kehoe) - Ch. 467, Stats. 2006
AB 1288 (Chu) - Ch. 702, Stats. 2005
SB 1391 (Romero) - Ch. 250, Stats. 2004
Support: California State Sheriffs' Association; Legal Community
Against Violence; Peace Officer's Research Association
of California; California Chapters of the Brady
Campaign to Prevent Gun Violence; Sacramento County
Sheriff's Department; Office of the San Bernardino
County Sheriff; California Partnership to End Domestic
Violence
Opposition:California Public Defenders Association
Assembly Floor Vote: Ayes 75 - Noes 0
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KEY ISSUE
should statutory law authorize the issuance of a search warrant
where the property or things to be seized include a firearm or any
other deadly weapon at the scene of, or at the premises occupied or
controlled by a person arrested in connection with a domestic
violence incident involving a threat to human life or a physical
assault, as specified, or a person who is detained for reasons
relating to his or her mental condition, as specified?
PURPOSE
The purpose of this bill is to authorize the issuance of a
search warrant where the property or things to be seized include
a firearm or any other deadly weapon at the scene of, or at the
premises occupied or controlled by a person arrested in
connection with a domestic violence incident involving a threat
to human life or a physical assault, as specified, or a person
who is detained for reasons relating to his or her mental
condition, as specified.
Current law defines a "search warrant" as an order in writing in
the name of the People, signed by a magistrate, directed to a
peace officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate. (Penal Code 1523.)
Current law provides that a search warrant may be issued upon
any of the following grounds:
a) When the property was stolen or embezzled.
b) When the property or things were used as the means of
committing a felony.
c) When the property or things are in the possession of
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any person with the intent to use them as a means of
committing a public offense, or in the possession of
another to whom he or she may have delivered them for the
purpose of concealing them or preventing them from being
discovered.
d) When the property or things to be seized consist of
any item or constitute any evidence that tends to show a
felony has been committed, or tends to show that a
particular person has committed a felony.
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of
a child, or possession of matter depicting sexual conduct
of a person under the age of 18 years, has occurred or is
occurring.
f) When there is a warrant to arrest a person.
g) When a provider of electronic communication
service or remote computing service
has records or evidence, showing that property was stolen
or embezzled constituting a misdemeanor, or that
property or things are in the possession of any person
with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of
another to whom he or she may have delivered them for the
purpose of concealing them or preventing their discovery.
(Penal Code 1524(a).)
This bill would add the following two provisions to this
section, authorizing the issuance of a search warrant:
When the property or things to be seized include a
firearm or any other deadly weapon at the scene of, or at
the premises occupied or under the control of the person
arrested in connection with, a domestic violence incident
involving a threat to human life or a physical assault as
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specified;<1> and
When the property or things to be seized include a
firearm or any other deadly weapon that is owned by, or in
the possession of, or in the custody or control of, a
person who is detained for reasons relating to his or her
mental condition, as specified.<2>
This bill additionally contains the following uncodified intent
language:
It is the intent of the Legislature in enacting this
act to address the holding in People v. Sweig (2008)
167 Cal.App.4th 1145 and the court's suggestion that
the Legislature "address the statutory flaw"
highlighted in that case. It is not the intent of the
Legislature to authorize the seizure of any firearms
not owned by, or in the possession of, or under the
custody or control of, any person not subject to the
provisions of Section 12028.5 of the Penal Code or
Section 8102 of the Welfare and Institutions Code.
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<1> Specifically, Penal Code section 12028.5(b), which requires
that a peace officer, as specified, "who is at the scene of a
domestic violence incident involving a threat to human life or a
physical assault, shall take temporary custody of any firearm or
other deadly weapon in plain sight or discovered pursuant to a
consensual or other lawful
search as necessary for the protection of the peace officer or
other persons present."
<2> Specifically, Welfare and Institutions Code section,
which provides in part: "Whenever a person, who has been
detained or apprehended for examination of his or her mental
condition or who is a person described in Section 8100 or 8103,
is found to own, have in his or her possession or under his or
her control, any firearm whatsoever, or any other deadly weapon,
the firearm or other deadly weapon shall be confiscated by any
law enforcement agency or peace officer, who shall retain
custody of the firearm or other deadly weapon."
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
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 percent (an
average of 4 percent 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.<3>
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
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<3> "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 percent
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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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.
. . .
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.<4>
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<4> 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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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.
COMMENTS
1. Stated Need for This Bill
The author states:
California Penal Code Section 12028.5 requires a law
enforcement officer at the scene of a domestic
violence incident to 'take temporary custody of any
firearm or other deadly weapon' in order to protect
the victim of the abuse or other persons present at
the scene.
California Welfare and Institutions Code Section 8102
requires that whenever a law enforcement officer
detains or apprehends a person because they have a
mental condition that makes them a danger to
themselves or others, the officer shall confiscate any
firearm or other deadly weapon in the person's
possession or control.
California Penal Code Section 1524 lists the
circumstances under which a court can issue a search
warrant under California law.
California's Third District Court of Appeal ruled
recently that a warrantless search of the residence of
an individual taken into custody because the
individual suffered from a mental condition that made
him a danger to himself or others (WIC Section 5150)
in order to seize firearms and other deadly weapons
violated the 4th Amendment despite the fact the search
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was conducted for the primary purpose of seizing
deadly weapons as mandated by WIC Section 8102.
[People v. Sweig (2008) 167 Cal.App.4th 1145.]
The Court of Appeal in Sweig stated, 'The flaw in the
statutes is that the legislative scheme does not
provide a constitutionally permissible way for law
enforcement to confiscate a firearm or other deadly
weapon when it is in the residence of the
mentally disordered person who is detained outside the
residence and there is no exigent circumstance or
other basis for a warrantless entry into the
residence. Although section 8102 requires
confiscation of the firearm or deadly weapon, the
situation is not included as a ground for the issuance
of a search warrant (Pen. Code, Section 1524), and
section 8102 does not contain a mechanism to seize the
firearm or other deadly weapon in that circumstance."
The United States Supreme Court in Georgia v. Randolph
ruled that a joint occupant of a residence who is
present and expressly refuses consent to a law
enforcement search of a residence can cancel another
joint occupant of that residence.
Because of the holdings in Sweig and Randolph law
enforcement officers have no constitutionally
permissible way to seize firearms or other deadly
weapons as required by Penal Code Section 12028.5 or
WIC Section 8102 if they make the arrest or detention
outside of a residence and no exigent circumstance
exists allowing them access to the inside of the
residence.
The inability of law enforcement to remove firearms
and other deadly weapons from the scene of a domestic
violence incident or from individuals who pose an
immediate danger to themselves or others places
victims of domestic violence or those living with or
near an individual suffering from a serious mental
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health condition at unnecessary risk.
AB 532 solves this problem by authorizing a court to
issue a search warrant pursuant to Penal Code Section
1524 to seize any firearm or other deadly weapon
authorized by Penal Code Section 12028.5 or WIC
Section 8102.
2. What This Bill Would Do
As explained in detail above, this bill would authorize, as a
matter of statute, the issuance of a search warrant in the
following two instances:
When the property or things to be seized include a
firearm or any other deadly weapon at the scene of, or at
the premises occupied or under the control of the person
arrested in connection with, a domestic violence incident
involving a threat to human life or a physical assault as
specified; and
When the property or things to be seized include a
firearm or any other deadly weapon that is owned by, or in
the possession of, or in the custody or control of, a
person who is detained for reasons relating to his or her
mental condition, as specified.
3. People v. Sweig: Depublished in February
As noted above, the author relies in part on the case of
People v. Sweig (2008) (167 Cal.App.4th 1145), where the
Third District Court of Appeal concluded that the seizure
of a weapon found by law enforcement officers in the home
of a person they had detained for reasons relating to his
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mental condition was the "product of a warrantless entry of
defendant's residence in violation of the Fourth Amendment
. . . ." (People v. Sweig, supra, at 1150.) The court
began its opinion with the following observation:
This case illustrates a legislative oversight with
regard to statutes intended to prevent persons with
mental disorders from harming themselves or others.
A person who is gravely disabled or a danger to others
because of a mental disorder may be taken into custody
and placed in a mental health facility "for 72-hour
treatment and evaluation." If, when detained, such a
person "is found to own, have in his or her possession
or under his or her control, any firearm whatsoever,
or any other deadly weapon," it "shall be confiscated
by any law enforcement agency or peace officer, who
shall retain custody of the firearm or other deadly
weapon." When the person is released from custody,
"the confiscating law enforcement agency shall have 30
days to initiate a petition in the superior court for
a hearing to determine whether the return of a firearm
or other deadly weapon would be likely to result in
endangering the person or others ? ."
The flaw in the statutes is that the legislative
scheme does not provide a constitutionally permissible
way for law enforcement to confiscate a firearm or
other deadly weapon when it is in the residence of the
mentally disordered person who is detained outside the
residence and there is no exigent circumstance or
other basis for a warrantless entry into the
residence. Although section 8102 requires
confiscation of the firearm or deadly weapon, the
situation is not included as a ground for the issuance
of a search warrant (Pen. Code, 1524), and section
8102 does not contain a mechanism to seize the firearm
or other deadly weapon in that circumstance. (Sweig
at 1149, 1150 (some citations omitted).)
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The court continued with an analysis of whether existing law
could be interpreted to imply a means for law enforcement to
effect the mandated firearm seizure, or whether the "community
caretaking function" exception to the warrant requirement could
be applied in this type of case. The court rejected these
arguments, and concluded that the search was impermissible under
the Fourth Amendment. (Sweig at 1156.)
On February 11, 2009, the California Supreme Court granted a
petition for review sought by the People, and the Sweig opinion
was ordered depublished. Thus, the court's holding in Sweig -
that the warrantless search in that case violated the Fourth
Amendment - currently is not binding on any court.
Technically, this bill neither codifies nor abrogates the
appellate court's decision in that case. Rather, this bill
takes up that court's suggestion to address what the court
repeatedly refers to as a "flaw in California's statutory
scheme." The law currently is unsettled in California as to
whether, as the author submits, "law enforcement officers have
no constitutionally permissible way to seize firearms or other
deadly weapons" in cases where they have arrested a suspect in a
domestic violence situation or detained a person for reasons
relating to their mental condition.
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The Supreme Court may reverse the Sweig decision and find that
the search in that case was lawful. Nevertheless, the approach
proposed by this bill - to clearly include authority for a
warrant in cases where a person is arrested in connection with,
a domestic violence incident involving a threat to human life or
a physical assault or a person who is detained for reasons
relating to his or her mental condition and the thing to be
seized is a firearm or other deadly weapon - may be the clearest
and most effective way to authorize searches in these
circumstances.
should statutory law authorize the issuance of a search warrant
where the property or things to be seized include a firearm or
any other deadly weapon at the scene of, or at the premises
occupied or controlled by a person arrested in connection with a
domestic violence incident involving a threat to human life or a
physical assault, as specified, or a person who is detained for
reasons relating to his or her mental condition, as specified?
Because the Sweig decision has been depublished and is no longer
citable law, the Committee and or the author may wish to delete
the following uncodified language from the bill:
It is the intent of the Legislature in enacting this
act to address the holding in People v. Sweig (2008)
167 Cal.App.4th 1145 and the court's suggestion that
the Legislature "address the statutory flaw"
highlighted in that case.
SHOULD THIS AMENDMENT BE MADE?
4. Opposition
The California Public Defenders Association, which opposes
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this measure, argues in part:
CPDA is concerned that AB 532 would extend the grounds
for a search warrant based on speculation of a future
act. This probably violates the U.S. Constitution's
Fourth Amendment requirement that a warrant can issue
only upon "probable cause," because that "probable
cause" must be something connected with a crime.
. . . (This bill) is bad public policy. The obvious
purpose of a search warrant for firearms or other
deadly weapons in these two cases is fear concerning
the person's mental stability in the one, and, in the
other, fear concerning future possible actions.
It is poor public policy to authorize search warrants
based on fear of future possible actions. This is
akin to preventative detention. . . .
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