BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 532|
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THIRD READING
Bill No: AB 532
Author: Lieu (D)
Amended: 6/26/09 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 6/16/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg
NO VOTE RECORDED: Wright
ASSEMBLY FLOOR : 75-0, 5/18/09 - See last page for vote
SUBJECT : Search warrants: firearms in domestic violence
situations
SOURCE : Los Angeles County District Attorneys Office
Los Angeles County Sheriffs Department
DIGEST : This bill authorizes 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/her
mental condition, as specified.
ANALYSIS : 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/her
to search for a person or persons, a thing or things, or
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personal property, and in the case of a thing or things or
personal property, bring the same before the magistrate.
(Section 1523 of the Penal Code)
Current law provides that a search warrant may be issued
upon any of the following grounds:
1. When the property was stolen or embezzled.
2. When the property or things were used as the means of
committing a felony.
3. When the property or things are in the possession of 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/she may have delivered them for the
purpose of concealing them or preventing them from being
discovered.
4. 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.
5. 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.
6. When there is a warrant to arrest a person.
7. 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/she
may have delivered them for the purpose of concealing
them or preventing their discovery. (Section 1524(a) of
the Penal Code )
This bill adds the following two provisions to this
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section, authorizing the issuance of a search warrant:
1. 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.
2. 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/her
mental condition, as specified.
This bill additionally contains the following uncodified
intent language:
It is not the intent of the Legislature in enacting this
act 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/26/09)
Los Angeles County District Attorney's Office (co-source)
Los Angeles County Sheriff's Department (co-source)
California Chapters of the Brady Campaign to Prevent Gun
Violence
California Partnership to End Domestic Violence
California State Sheriffs' Association
Legal Community Against Violence
Office of the San Bernardino County Sheriff
Peace Officers Research Association of California
Sacramento County Sheriff's Department
OPPOSITION : (Verified 6/26/09)
California Public Defenders Association
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ARGUMENTS IN SUPPORT : 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 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.'
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"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 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."
ARGUMENTS IN OPPOSITION : The California Public Defenders
Association (CPDA) 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.
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"It is poor public policy to authorize search warrants
based on fear of future possible actions. This is akin
to preventative detention. ?"
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,
Duvall, Emmerson, Evans, Feuer, Fletcher, Fong, Fuentes,
Furutani, Gaines, Galgiani, Garrick, Gilmore, Hagman,
Hall, Harkey, Hayashi, Hernandez, Hill, Huber, Huffman,
Jeffries, Jones, Knight, Krekorian, Lieu, Logue, Bonnie
Lowenthal, Ma, Mendoza, Miller, Monning, Nava, Nestande,
Niello, Nielsen, John A. Perez, V. Manuel Perez,
Portantino, Ruskin, Salas, Silva, Skinner, Smyth,
Solorio, Audra Strickland, Swanson, Torlakson, Torres,
Torrico, Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Chesbro, Eng, Fuller, Price, Saldana
RJG:mw 6/25/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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