BILL ANALYSIS �
AB 2284
Page 1
Date of Hearing: April 17, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2284 (Chesbro) - As Amended: April 11, 2012
SUMMARY : Imposes an additional civil penalty for cultivating
marijuana within a state park, and allows law enforcement to
stop any vehicle transporting agricultural irrigation supplies
into a state park without a warrant. Specifically, this bill :
1)States that as a result of the closure and lack of staffing at
numerous state parks, those parks and other resource lands
have become infested with illegal marijuana cultivation.
2)States that the illegal marijuana growing sites create a
hazard for those who recreate on these public resource lands.
Some of the most recent events that showed the relative danger
were the murder of Matthew Coleman and Fort Bragg City Council
Member Jere Melo who surveyed the forest for illegal marijuana
growth in connection with local law enforcement and were
killed in the course of their jobs.
3)States that marijuana grow sites often are constructed without
regard for the environment or wildlife.
4)States that because the illegal marijuana cultivation
operations are set up deep in resource land, all the equipment
is brought in and constructed without consideration for the
environmental effects.
5)States that many illegal marijuana grow sites include water
diversion with irrigation pipes, generators, and batteries to
power the cultivation equipment and camp, illegal damming and
water diversion, and pesticides and insecticides that are
sometimes added directly to streams and ponds.
6)Requires that an individual who is found to have violated
specified sections of the Fish and Game Code in connection
with marijuana cultivation on a unit of the state park system,
AB 2284
Page 2
state forest, or timberland, shall be liable for a civil
penalty in the following amounts:
a) Not more than $10,000 for a person who violates Fish and
Game Code section 1602 in connection with the cultivation
of marijuana;
b) Not more than $40,000 for a person who violates Fish and
Game Code section 5650 in connection with the cultivation
of marijuana; or,
c) Not more than $40,000 for a person who violates Fish and
Game Code section 5652 in connection with the cultivation
of marijuana.
7)States that a civil penalty imposed under this section is in
addition to any other penalty imposed.
8)States that the civil penalties collected pursuant to this
section are not considered to be fines or forfeitures, and
shall be apportioned as follows:
a) 30% must be distributed to the county in which the
violation was committed. The county board of supervisors
must first use any revenues from those penalties to
reimburse the costs incurred by the district attorney or
city attorney investigating and prosecuting the violation.
b) 30% must be distributed to the lead investigating agency
to be used to reimburse the cost of any investigation
directly related to the violations described in this
section.
c) 40% must be distributed to the primary investigating
agency for the reimbursement of all reasonable costs
associated with the clean up or abatement of the marijuana
cultivation site.
9)Allows the California Highway Patrol, sheriff or deputy
sheriff to stop any vehicle transporting agricultural
irrigation supplies that are in plain view within the
boundaries of a state park, state forest, or federal forest or
timberland, 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 take possession
AB 2284
Page 3
of those supplies if the officer has reasonable belief that
the driver is not in legal possession of those supplies.
10)Requires the sheriff to receive and provide for the
safekeeping of any agricultural irrigation supplies seized,
and proceed, with the California Highway Patrol, with an
investigation and its legal disposition.
11)Defines "agricultural irrigation supplies" as including
agricultural irrigation water bladder, drip irrigation tubing,
and fertilizer.
12)Defines "timberland" as privately owned land, or land
acquired for state forest purposes, which is devoted to and
used for growing and harvesting timber, or for growing and
harvesting timber and compatible uses, and which is capable of
growing an average annual volume of wood fiber of at least 15
cubic feet per acre.
EXISTING LAW :
1)Allows a member of the 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 Section 2810(a).]
2)States 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, 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
Section 2810(b).]
FISCAL EFFECT : Unknown
COMMENTS :
AB 2284
Page 4
1)Author's Statement : According to the author, "Illegal
marijuana cultivation on resource land has become a
significant problem in my district and many other parts of the
state. Growing marijuana on state and private resource land
presents a public safety and environmental hazard. People can
no longer rely on these lands as a safe place to recreate and
large scale damage is being done to the immediate grow site
and surrounding areas. Law Enforcement Agencies have limited
resources like so many other services in this economic
climate. The focus of many agencies finite resources have
shift to marijuana enforcement from their original mission.
This bill would give law enforcement agencies the tools to
prevent the establishment of illegal marijuana grow sites on
resource land and to recuperate some of the resources spent to
investigate, eradicate and clean up grow sites."
2)Background : According to information provided by the author,
"This bill was developed as a result of the ongoing problems
with illegal cultivation of marijuana on resource land
(including State Parks, State Forests, Federal Parks and
Timberland). Law enforcement agencies are not able to stop
vehicles entering resource land to set up marijuana
cultivation sites even if they see the individual entering
with all the materials to do so. This bill would allow county
sheriffs to pull over people entering state parks with
agricultural supplies and ask them questions about their final
destination. The main goal is to intercept these individuals
before they are able to set up grow sites.
"Additionally, this bill would increase civil penalties for
three commonly pressed charges in conjunction with marijuana
cultivation. Increasing these fines would allow that law
enforcement agencies responsible for investigation,
enforcement and clean-up to recuperate the costs spent in
response to illegal marijuana growth on state parks.
"Law enforcement agencies dedicate many hours to building cases
against those responsible for grow sites and often are not
success in prosecuting those cases. Additionally, they are
never able to successfully try suspects in many cases. All of
these factors combined leave many departments at a significant
loss when it comes to illegal marijuana cultivation."
3)Vehicle Stops Are "Seizures" and Must Comport with the Fourth
AB 2284
Page 5
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).]
4)When Vehicle Stops Are Permitted Without a Warrant or Probable
Cause :
a) 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
Supreme 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
AB 2284
Page 6
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 States v. Brignoni-Ponce,
422 U.S. 873, 885-887 (1975).]
This bill allows law enforcement to stop a vehicle based
solely on the fact that the vehicle contains agricultural
irrigation supplies and inquire about the purpose and
destination of those supplies. In other words, this bill
authorizes these law enforcement officers 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 agricultural irrigation
supplies.
To allow police to affect a vehicle stop based on a single
fact consistent with legal behavior as it is with illegal
behavior, i.e., the transportation of agricultural
irrigation supplies in the vehicle, appears to violate the
Fourth Amendment just as does stopping a vehicle based only
on the presence a person who appears to be of Mexican
ancestry. Neither amounts to reasonable suspicion, much
less probable cause, of any wrongdoing.
b) Administrative Searches : 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 by 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 Supreme Court has recognized
an exception to the warrant requirement 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).]
AB 2284
Page 7
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 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
AB 2284
Page 8
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).]
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 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).
AB 2284
Page 9
"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).]
c) 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 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:
'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).]
Furthermore, the Supreme Court provided specific guidelines
that law enforcement must follow to ensure that the
AB 2284
Page 10
sobriety checkpoints are not subjective in who they capture
and are targeted specifically to areas where driving under
the influence is a particular problem. For instance,
officers may not randomly select cars. Officers must
select every fifth car or tenth car and decide the number
in advance, which prevents officers from subjectively
selecting vehicles based on personal opinions that could
relate to something as simple as the racial background, age
�
AB 2284
Page 1
Date of Hearing: April 17, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2284 (Chesbro) - As Amended: April 11, 2012
SUMMARY : Imposes an additional civil penalty for cultivating
marijuana within a state park, and allows law enforcement to
stop any vehicle transporting agricultural irrigation supplies
into a state park without a warrant. Specifically, this bill :
1)States that as a result of the closure and lack of staffing at
numerous state parks, those parks and other resource lands
have become infested with illegal marijuana cultivation.
2)States that the illegal marijuana growing sites create a
hazard for those who recreate on these public resource lands.
Some of the most recent events that showed the relative danger
were the murder of Matthew Coleman and Fort Bragg City Council
Member Jere Melo who surveyed the forest for illegal marijuana
growth in connection with local law enforcement and were
killed in the course of their jobs.
3)States that marijuana grow sites often are constructed without
regard for the environment or wildlife.
4)States that because the illegal marijuana cultivation
operations are set up deep in resource land, all the equipment
is brought in and constructed without consideration for the
environmental effects.
5)States that many illegal marijuana grow sites include water
diversion with irrigation pipes, generators, and batteries to
power the cultivation equipment and camp, illegal damming and
water diversion, and pesticides and insecticides that are
sometimes added directly to streams and ponds.
6)Requires that an individual who is found to have violated
specified sections of the Fish and Game Code in connection
with marijuana cultivation on a unit of the state park system,
AB 2284
Page 2
state forest, or timberland, shall be liable for a civil
penalty in the following amounts:
a) Not more than $10,000 for a person who violates Fish and
Game Code section 1602 in connection with the cultivation
of marijuana;
b) Not more than $40,000 for a person who violates Fish and
Game Code section 5650 in connection with the cultivation
of marijuana; or,
c) Not more than $40,000 for a person who violates Fish and
Game Code section 5652 in connection with the cultivation
of marijuana.
7)States that a civil penalty imposed under this section is in
addition to any other penalty imposed.
8)States that the civil penalties collected pursuant to this
section are not considered to be fines or forfeitures, and
shall be apportioned as follows:
a) 30% must be distributed to the county in which the
violation was committed. The county board of supervisors
must first use any revenues from those penalties to
reimburse the costs incurred by the district attorney or
city attorney investigating and prosecuting the violation.
b) 30% must be distributed to the lead investigating agency
to be used to reimburse the cost of any investigation
directly related to the violations described in this
section.
c) 40% must be distributed to the primary investigating
agency for the reimbursement of all reasonable costs
associated with the clean up or abatement of the marijuana
cultivation site.
9)Allows the California Highway Patrol, sheriff or deputy
sheriff to stop any vehicle transporting agricultural
irrigation supplies that are in plain view within the
boundaries of a state park, state forest, or federal forest or
timberland, 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 take possession
AB 2284
Page 3
of those supplies if the officer has reasonable belief that
the driver is not in legal possession of those supplies.
10)Requires the sheriff to receive and provide for the
safekeeping of any agricultural irrigation supplies seized,
and proceed, with the California Highway Patrol, with an
investigation and its legal disposition.
11)Defines "agricultural irrigation supplies" as including
agricultural irrigation water bladder, drip irrigation tubing,
and fertilizer.
12)Defines "timberland" as privately owned land, or land
acquired for state forest purposes, which is devoted to and
used for growing and harvesting timber, or for growing and
harvesting timber and compatible uses, and which is capable of
growing an average annual volume of wood fiber of at least 15
cubic feet per acre.
EXISTING LAW :
1)Allows a member of the 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 Section 2810(a).]
2)States 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, 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
Section 2810(b).]
FISCAL EFFECT : Unknown
COMMENTS :
AB 2284
Page 4
1)Author's Statement : According to the author, "Illegal
marijuana cultivation on resource land has become a
significant problem in my district and many other parts of the
state. Growing marijuana on state and private resource land
presents a public safety and environmental hazard. People can
no longer rely on these lands as a safe place to recreate and
large scale damage is being done to the immediate grow site
and surrounding areas. Law Enforcement Agencies have limited
resources like so many other services in this economic
climate. The focus of many agencies finite resources have
shift to marijuana enforcement from their original mission.
This bill would give law enforcement agencies the tools to
prevent the establishment of illegal marijuana grow sites on
resource land and to recuperate some of the resources spent to
investigate, eradicate and clean up grow sites."
2)Background : According to information provided by the author,
"This bill was developed as a result of the ongoing problems
with illegal cultivation of marijuana on resource land
(including State Parks, State Forests, Federal Parks and
Timberland). Law enforcement agencies are not able to stop
vehicles entering resource land to set up marijuana
cultivation sites even if they see the individual entering
with all the materials to do so. This bill would allow county
sheriffs to pull over people entering state parks with
agricultural supplies and ask them questions about their final
destination. The main goal is to intercept these individuals
before they are able to set up grow sites.
"Additionally, this bill would increase civil penalties for
three commonly pressed charges in conjunction with marijuana
cultivation. Increasing these fines would allow that law
enforcement agencies responsible for investigation,
enforcement and clean-up to recuperate the costs spent in
response to illegal marijuana growth on state parks.
"Law enforcement agencies dedicate many hours to building cases
against those responsible for grow sites and often are not
success in prosecuting those cases. Additionally, they are
never able to successfully try suspects in many cases. All of
these factors combined leave many departments at a significant
loss when it comes to illegal marijuana cultivation."
3)Vehicle Stops Are "Seizures" and Must Comport with the Fourth
AB 2284
Page 5
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).]
4)When Vehicle Stops Are Permitted Without a Warrant or Probable
Cause :
a) 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
Supreme 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
AB 2284
Page 6
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 States v. Brignoni-Ponce,
422 U.S. 873, 885-887 (1975).]
This bill allows law enforcement to stop a vehicle based
solely on the fact that the vehicle contains agricultural
irrigation supplies and inquire about the purpose and
destination of those supplies. In other words, this bill
authorizes these law enforcement officers 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 agricultural irrigation
supplies.
To allow police to affect a vehicle stop based on a single
fact consistent with legal behavior as it is with illegal
behavior, i.e., the transportation of agricultural
irrigation supplies in the vehicle, appears to violate the
Fourth Amendment just as does stopping a vehicle based only
on the presence a person who appears to be of Mexican
ancestry. Neither amounts to reasonable suspicion, much
less probable cause, of any wrongdoing.
b) Administrative Searches : 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 by 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 Supreme Court has recognized
an exception to the warrant requirement 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).]
AB 2284
Page 7
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 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
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Page 8
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).]
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 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).]
c) 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 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:
'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).]
Furthermore, the Supreme Court provided specific guidelines
that law enforcement must follow to ensure that the
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Page 10
sobriety checkpoints are not subjective in who they capture
and are targeted specifically to areas where driving under
the influence is a particular problem. For instance,
officers may not randomly select cars. Officers must
select every fifth car or tenth car and decide the number
in advance, which prevents officers from subjectively
selecting vehicles based on personal opinions that could
relate to something as simple as the racial background, age
or gender or the driver, or the perceived quality of their
vehicles.
The vehicle stops proposed by this bill are not checkpoint
stops but "roving stops" that the Court found more
intrusive and therefore do not fall under any exception to
the warrant requirement similar to sobriety checkpoints.
5)Related Legislation: AB 1017 (Ammiano) would have made the
penalty for marijuana cultivation an alternate
misdemeanor/felony. AB 1017 failed passage on the Assembly
floor.
6)Previous Legislation :
a) AB 237 (Carter), of the 2009-2010 Legislative Session,
would have allowed law enforcement to stop a vehicle,
without a warrant or probable cause, while transporting
metal products and inspect certain documents 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, to take custody of the vehicle and
load. AB 237 failed passage in Senate Public Safety.
b) SB 131 (Sher), of the 2003-04 Legislative Session, would
have reduced simple possession of not more than 28.5 grams
of marijuana to an infraction for the first offense, would
have reduced simple possession for a subsequent offense to
an alternate infraction/misdemeanor, and would have
increased the penalty for an offense to a fine of not more
than $250. SB 131 failed passage on the Assembly floor,
was granted reconsideration, and was never re-heard
c) SB 420 (Vasconcellos), Chapter 875, Statutes of 2003,
establishes a voluntary registry identification card system
for patients authorized to engage in the medical use of
marijuana, and their caregivers.
AB 2284
Page 11
d) SB 791 (McPherson), of the 2001-02 Legislative Session,
would have reduced simple possession of not more than 28.5
grams of marijuana to an infraction for the first offense
and an alternate infraction/misdemeanor for the second
offense. SB 791 failed passage on the Assembly Floor.
e) SB 847 (Vasconcellos), Chapter 750, Statutes of 1999,
established the Marijuana Research Act of 1999 and provide
that the Regents of the University of California, if they
elect to do so, may implement a three-year program, the
"California Marijuana Research Program", under which funds
would be provided for studies intended to ascertain the
general medical safety and efficacy of marijuana and, if
found valuable, to develop medical guidelines for the
appropriate administration and use of marijuana.
REGISTERED SUPPORT / OPPOSITION :
Support
Mendocino County, Board of Supervisors
Mendocino County, Sheriff-Coroner, Thomas D. Allman
Opposition
California Public Defenders Association
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744
or gender or the driver, or the perceived quality of their
vehicles.
The vehicle stops proposed by this bill are not checkpoint
stops but "roving stops" that the Court found more
intrusive and therefore do not fall under any exception to
the warrant requirement similar to sobriety checkpoints.
5)Related Legislation: AB 1017 (Ammiano) would have made the
penalty for marijuana cultivation an alternate
misdemeanor/felony. AB 1017 failed passage on the Assembly
floor.
6)Previous Legislation :
a) AB 237 (Carter), of the 2009-2010 Legislative Session,
would have allowed law enforcement to stop a vehicle,
without a warrant or probable cause, while transporting
metal products and inspect certain documents 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, to take custody of the vehicle and
load. AB 237 failed passage in Senate Public Safety.
b) SB 131 (Sher), of the 2003-04 Legislative Session, would
have reduced simple possession of not more than 28.5 grams
of marijuana to an infraction for the first offense, would
have reduced simple possession for a subsequent offense to
an alternate infraction/misdemeanor, and would have
increased the penalty for an offense to a fine of not more
than $250. SB 131 failed passage on the Assembly floor,
was granted reconsideration, and was never re-heard
c) SB 420 (Vasconcellos), Chapter 875, Statutes of 2003,
establishes a voluntary registry identification card system
for patients authorized to engage in the medical use of
marijuana, and their caregivers.
AB 2284
Page 11
d) SB 791 (McPherson), of the 2001-02 Legislative Session,
would have reduced simple possession of not more than 28.5
grams of marijuana to an infraction for the first offense
and an alternate infraction/misdemeanor for the second
offense. SB 791 failed passage on the Assembly Floor.
e) SB 847 (Vasconcellos), Chapter 750, Statutes of 1999,
established the Marijuana Research Act of 1999 and provide
that the Regents of the University of California, if they
elect to do so, may implement a three-year program, the
"California Marijuana Research Program", under which funds
would be provided for studies intended to ascertain the
general medical safety and efficacy of marijuana and, if
found valuable, to develop medical guidelines for the
appropriate administration and use of marijuana.
REGISTERED SUPPORT / OPPOSITION :
Support
Mendocino County, Board of Supervisors
Mendocino County, Sheriff-Coroner, Thomas D. Allman
Opposition
California Public Defenders Association
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744