BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
2
2
8
AB 2284 (Chesbro) 4
As Amended June 27, 2012
Hearing date: July 3, 2012
Fish and Game Code; Vehicle Code
MK:mc
POLICE STOPS:
IRRIGATION SUPPLIES
HISTORY
Source: Author
Prior Legislation: SB 1738 (Kelley) - Chapter 394, Stats. 1998
Support: Mendocino County Board of Supervisors; Mendocino
Sheriff's Office; United States Department of
Agriculture, Forest Service; California Police Chiefs
Association, Inc.; Regional Council of Rural Counties;
League of California Cities; California State
Sheriffs' Association; California Peace Officers'
Association; Arcata City Council
Opposition:California Public Defenders Association
Assembly Floor Vote: Ayes 53 - Noes 18
KEY ISSUE
SHOULD THE LAW PROVIDE THAT A PEACE OFFICER MAY STOP A PERSON WITH
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AB 2284 (Chesbro)
Page 2
IRRIGATION SUPPLIES IN PLAIN VIEW ON A ROCK OR UNPAVED ROAD,
SPECIFIED PUBLIC OR FORESTRY LAND, AND SEIZE ILLEGALLY POSSESSED
EQUIPMENT?
PURPOSE
The purpose of this bill is to allow a peace officer to stop a
person with irrigation supplies on a rock or unpaved road on
specified public or forestry land and to create civil penalties
for cultivating a controlled substance on public lands.
Existing law 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 � 2810(a).)
Existing law 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 �
2810(b).)
Existing law restricts modifications to stream beds to ensure
that fish and wildlife are not adversely affected. (Fish and
Game Code � 1600 et seq.)
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Existing law bars the obstruction of the natural flow of the
river; and disposing debris or other materials by leaving it
where it may pass into the river is specifically barred subject
to specified permit conditions. Causing water pollution through
the release of "any substance or material deleterious to fish,
plant life, mammals or bird life" and other specified materials,
as well as trash and waste. (Fish and Game Code �� 5652; 5650.)
This bill authorizes a peace officer to stop a vehicle, as
specified, transporting "agricultural irrigation supplies" in
plain view if the vehicle is traveling on a rock or unpaved road
in specified public lands and private timberlands.
This bill provides that if possession of the supplies appears to
be illegal, the peace officer can take custody of the vehicle
and supplies in certain circumstances and turn them over to the
county sheriff who shall investigate.
This bill adds new civil penalties for violation of specified
sections of the FGC during the cultivation or production of
controlled substances on specified public lands and private
timberland production zones as follows:
Up to $10,000 per violation for stream bed alterations.
Up to $40,000 per violation for either water pollution
or trash disposal.
This bill divides any civil penalty collected for these
specified violations between the county in which the violation
occurred (30%), the investigating agency as reimbursement (30%),
and the agency cleaning up the site (40%).
This bill expresses legislative intent that its provisions are
not meant to interfere with marijuana usage under the Medical
Marijuana Program and the Compassionate Use Act of 2006.
This bill makes numerous legislative findings describing the
problems posed by large scale illegal marijuana cultivation on
public lands including risks to public safety and environmental
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Page 4
damage
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
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AB 2284 (Chesbro)
Page 5
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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for this Bill
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Page 6
According to the author:
This bill was developed as a result of the ongoing
problems with illegal cultivation of marijuana on
resource land (including State, Federal and private
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 the driver 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.
2. Vehicle Stop for Transporting Agricultural Irrigation
This bill would allow a peace officer to stop a vehicle
transporting agricultural irrigation supplies in plain view if
the vehicle is on a rock or unpaved road that is:
Located within the respective jurisdiction of the
Department of Parks and Recreation, the Department of Fish
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AB 2284 (Chesbro)
Page 7
and Game, the Department of Forestry and Fire Protection,
the State Lands Commission, a regional park district, the
United States Forest Service, or the Bureau of Land
Management.
Located within the respective ownership of a timberland
production zone either that is larger than 50,000 acres or
for which the owner of more than 2,500 acres has given
express written permission for a vehicle to be stopped
within the zone pursuant to this section.
Upon reasonable belief that the driver of the vehicle is not in
legal possession, the law enforcement shall take custody of the
vehicle and load and turn them over to the custody of the
sheriff of the county where the agricultural irrigation supplies
are apprehended.
It is not clear how or when irrigation supplies would be found
to be "illegal." The burden would be on law enforcement to make
that decision before making the seizure. Since it is not
illegal to possess such supplies it is not clear how that would
be done. People may not routinely have receipts for things they
legally own. It is also not clear why the car would be seized
at all if somehow the peace officer was able to show that the
supplies were illegal. It is not clear that this provision will
help address the issue of illegal cultivation.
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).)
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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
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).)
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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 on specified land.
The issue is whether transporting agricultural irrigation
supplies on these specific lands amounts to probable cause of a
wrongdoing.
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." The California case Ingersoll v. Palmer (1987)
43 Cal.3d 1321 found DUI checkpoints constitutional if certain
factors are met:
In Ingersoll, we examined the question whether
sobriety checkpoints are permissible under the United
States and California Constitutions. The case
involved a challenge brought by California taxpayers
against various law enforcement officials and cited,
as an example, a sobriety checkpoint program
established by the Burlingame Police Department. As
part of that program, law enforcement officials
prepared a manual governing checkpoint operations,
including guidelines established by the Attorney
General, a cost analysis, factors affecting selection
of the checkpoint location, required personnel and
equipment, training, press relations and publicity,
and procedures for a follow-up evaluation. The
Burlingame sobriety checkpoint operated pursuant to
these guidelines. (Ingersoll, supra, 43 Cal.3d at pp.
1325-1327 supra, 43 Cal.3d at pp. 1325-1327.)
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In examining the challenge presented in Ingersoll, we
held: HN8 "The touchstone for all issues under the
Fourth Amendment and article I, section 13 of the
California Constitution is reasonableness. (See Terry
v. Ohio �1968] 392 U.S. 1, 19 �20 L.Ed.2d 889, 904, 88
S.Ct. 1868]; People s. Hyde �1974] 12 Cal.3d 158, 166
�115 Cal.Rptr. 358, 524 P.2d 830], conc. opn. �of
Wright, C. J.] at pp. 172-173.) �] HN9The federal
test for determining whether a detention or seizure is
justified balances the public interest served by the
seizure, the degree to which the seizure advances the
public interest and the severity of the interference
with individual liberty. (Brown v. Texas (1979) 443
U.S. 47, 50-51 �61 L.Ed.2d 357, 361-362, 99 S.Ct.
2637].) In addition, federal constitutional
principles require a showing of either the officer's
reasonable suspicion that a crime has occurred or is
occurring or, as an alternative, that the seizure is
'carried out pursuant to a plan embodying explicit,
neutral limitations on the conduct of individual
officers.' (Brown s. Texas, supra, 443 U.S. at p. 51
�61 L.Ed.2d at p. 362], citing Delaware v. Prouse
(1979) 440 U.S. 648, 663 �59 L.Ed.2d 660, 673-674, 99
S.Ct. 1391] and United States v. Martinez-Fuerte
(1976) 428 U.S. 543, 558-562 �49 L.Ed.2d 1116,
1128-1131, 96 S.Ct. 3074].)" (Ingersoll, supra, 43
Cal.3d at p. 1329, supra, 43 Cal.3d at p. 1329.)
The primary purpose of a sobriety checkpoint is to
"prevent and deter conduct injurious to persons and
property." (Ingersoll, supra, 43 Cal.3d 1321, 1331,
supra, 43 Cal.3d 1321, 1331.) In Ingersoll, in
applying Brown's three-pronged balancing test, we
determined that (1) "�d]eterring drunk driving and
identifying and removing drunk drivers from the
roadways undeniably serves a highly important
governmental interest," and (2) sobriety checkpoints
advance this interest. (43 Cal.3d at pp. 1338-1341.)
In examining the third prong of the Brown balancing
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test, which we rephrased as "the intrusiveness on
individual liberties engendered by the sobriety
checkpoints," we identified eight "factors important
in assessing intrusiveness," noting that such factors
"provide functional guidelines for minimizing the
intrusiveness of the sobriety checkpoint stop." (Id.
at p. 1341 at p. 1341.)
The factors identified in Ingersoll are:
(1) Whether the decision to establish a sobriety
checkpoint, the selection of the site, and the
procedures for the operation of the checkpoint are
made and established by supervisory law enforcement
personnel;
(2) Whether motorists are stopped according to a
neutral formula, such as every third, fifth or tenth
driver;
(3) Whether adequate safety precautions are taken,
such as proper lighting, warning signs, and signals,
and whether clearly identifiable official vehicles and
personnel are used;
(4) Whether the location of the checkpoint was
determined by a policymaking official, and was
reasonable, i.e., on a road having a high incidence of
alcohol-related accidents or arrests;
(5) Whether the time the checkpoint was conducted and
�
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
2
2
8
AB 2284 (Chesbro) 4
As Amended June 27, 2012
Hearing date: July 3, 2012
Fish and Game Code; Vehicle Code
MK:mc
POLICE STOPS:
IRRIGATION SUPPLIES
HISTORY
Source: Author
Prior Legislation: SB 1738 (Kelley) - Chapter 394, Stats. 1998
Support: Mendocino County Board of Supervisors; Mendocino
Sheriff's Office; United States Department of
Agriculture, Forest Service; California Police Chiefs
Association, Inc.; Regional Council of Rural Counties;
League of California Cities; California State
Sheriffs' Association; California Peace Officers'
Association; Arcata City Council
Opposition:California Public Defenders Association
Assembly Floor Vote: Ayes 53 - Noes 18
KEY ISSUE
SHOULD THE LAW PROVIDE THAT A PEACE OFFICER MAY STOP A PERSON WITH
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AB 2284 (Chesbro)
Page 2
IRRIGATION SUPPLIES IN PLAIN VIEW ON A ROCK OR UNPAVED ROAD,
SPECIFIED PUBLIC OR FORESTRY LAND, AND SEIZE ILLEGALLY POSSESSED
EQUIPMENT?
PURPOSE
The purpose of this bill is to allow a peace officer to stop a
person with irrigation supplies on a rock or unpaved road on
specified public or forestry land and to create civil penalties
for cultivating a controlled substance on public lands.
Existing law 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 � 2810(a).)
Existing law 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 �
2810(b).)
Existing law restricts modifications to stream beds to ensure
that fish and wildlife are not adversely affected. (Fish and
Game Code � 1600 et seq.)
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AB 2284 (Chesbro)
Page 3
Existing law bars the obstruction of the natural flow of the
river; and disposing debris or other materials by leaving it
where it may pass into the river is specifically barred subject
to specified permit conditions. Causing water pollution through
the release of "any substance or material deleterious to fish,
plant life, mammals or bird life" and other specified materials,
as well as trash and waste. (Fish and Game Code �� 5652; 5650.)
This bill authorizes a peace officer to stop a vehicle, as
specified, transporting "agricultural irrigation supplies" in
plain view if the vehicle is traveling on a rock or unpaved road
in specified public lands and private timberlands.
This bill provides that if possession of the supplies appears to
be illegal, the peace officer can take custody of the vehicle
and supplies in certain circumstances and turn them over to the
county sheriff who shall investigate.
This bill adds new civil penalties for violation of specified
sections of the FGC during the cultivation or production of
controlled substances on specified public lands and private
timberland production zones as follows:
Up to $10,000 per violation for stream bed alterations.
Up to $40,000 per violation for either water pollution
or trash disposal.
This bill divides any civil penalty collected for these
specified violations between the county in which the violation
occurred (30%), the investigating agency as reimbursement (30%),
and the agency cleaning up the site (40%).
This bill expresses legislative intent that its provisions are
not meant to interfere with marijuana usage under the Medical
Marijuana Program and the Compassionate Use Act of 2006.
This bill makes numerous legislative findings describing the
problems posed by large scale illegal marijuana cultivation on
public lands including risks to public safety and environmental
(More)
AB 2284 (Chesbro)
Page 4
damage
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
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AB 2284 (Chesbro)
Page 5
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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for this Bill
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AB 2284 (Chesbro)
Page 6
According to the author:
This bill was developed as a result of the ongoing
problems with illegal cultivation of marijuana on
resource land (including State, Federal and private
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 the driver 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.
2. Vehicle Stop for Transporting Agricultural Irrigation
This bill would allow a peace officer to stop a vehicle
transporting agricultural irrigation supplies in plain view if
the vehicle is on a rock or unpaved road that is:
Located within the respective jurisdiction of the
Department of Parks and Recreation, the Department of Fish
(More)
AB 2284 (Chesbro)
Page 7
and Game, the Department of Forestry and Fire Protection,
the State Lands Commission, a regional park district, the
United States Forest Service, or the Bureau of Land
Management.
Located within the respective ownership of a timberland
production zone either that is larger than 50,000 acres or
for which the owner of more than 2,500 acres has given
express written permission for a vehicle to be stopped
within the zone pursuant to this section.
Upon reasonable belief that the driver of the vehicle is not in
legal possession, the law enforcement shall take custody of the
vehicle and load and turn them over to the custody of the
sheriff of the county where the agricultural irrigation supplies
are apprehended.
It is not clear how or when irrigation supplies would be found
to be "illegal." The burden would be on law enforcement to make
that decision before making the seizure. Since it is not
illegal to possess such supplies it is not clear how that would
be done. People may not routinely have receipts for things they
legally own. It is also not clear why the car would be seized
at all if somehow the peace officer was able to show that the
supplies were illegal. It is not clear that this provision will
help address the issue of illegal cultivation.
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).)
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AB 2284 (Chesbro)
Page 8
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
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).)
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AB 2284 (Chesbro)
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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 on specified land.
The issue is whether transporting agricultural irrigation
supplies on these specific lands amounts to probable cause of a
wrongdoing.
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." The California case Ingersoll v. Palmer (1987)
43 Cal.3d 1321 found DUI checkpoints constitutional if certain
factors are met:
In Ingersoll, we examined the question whether
sobriety checkpoints are permissible under the United
States and California Constitutions. The case
involved a challenge brought by California taxpayers
against various law enforcement officials and cited,
as an example, a sobriety checkpoint program
established by the Burlingame Police Department. As
part of that program, law enforcement officials
prepared a manual governing checkpoint operations,
including guidelines established by the Attorney
General, a cost analysis, factors affecting selection
of the checkpoint location, required personnel and
equipment, training, press relations and publicity,
and procedures for a follow-up evaluation. The
Burlingame sobriety checkpoint operated pursuant to
these guidelines. (Ingersoll, supra, 43 Cal.3d at pp.
1325-1327 supra, 43 Cal.3d at pp. 1325-1327.)
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In examining the challenge presented in Ingersoll, we
held: HN8 "The touchstone for all issues under the
Fourth Amendment and article I, section 13 of the
California Constitution is reasonableness. (See Terry
v. Ohio �1968] 392 U.S. 1, 19 �20 L.Ed.2d 889, 904, 88
S.Ct. 1868]; People s. Hyde �1974] 12 Cal.3d 158, 166
�115 Cal.Rptr. 358, 524 P.2d 830], conc. opn. �of
Wright, C. J.] at pp. 172-173.) �] HN9The federal
test for determining whether a detention or seizure is
justified balances the public interest served by the
seizure, the degree to which the seizure advances the
public interest and the severity of the interference
with individual liberty. (Brown v. Texas (1979) 443
U.S. 47, 50-51 �61 L.Ed.2d 357, 361-362, 99 S.Ct.
2637].) In addition, federal constitutional
principles require a showing of either the officer's
reasonable suspicion that a crime has occurred or is
occurring or, as an alternative, that the seizure is
'carried out pursuant to a plan embodying explicit,
neutral limitations on the conduct of individual
officers.' (Brown s. Texas, supra, 443 U.S. at p. 51
�61 L.Ed.2d at p. 362], citing Delaware v. Prouse
(1979) 440 U.S. 648, 663 �59 L.Ed.2d 660, 673-674, 99
S.Ct. 1391] and United States v. Martinez-Fuerte
(1976) 428 U.S. 543, 558-562 �49 L.Ed.2d 1116,
1128-1131, 96 S.Ct. 3074].)" (Ingersoll, supra, 43
Cal.3d at p. 1329, supra, 43 Cal.3d at p. 1329.)
The primary purpose of a sobriety checkpoint is to
"prevent and deter conduct injurious to persons and
property." (Ingersoll, supra, 43 Cal.3d 1321, 1331,
supra, 43 Cal.3d 1321, 1331.) In Ingersoll, in
applying Brown's three-pronged balancing test, we
determined that (1) "�d]eterring drunk driving and
identifying and removing drunk drivers from the
roadways undeniably serves a highly important
governmental interest," and (2) sobriety checkpoints
advance this interest. (43 Cal.3d at pp. 1338-1341.)
In examining the third prong of the Brown balancing
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test, which we rephrased as "the intrusiveness on
individual liberties engendered by the sobriety
checkpoints," we identified eight "factors important
in assessing intrusiveness," noting that such factors
"provide functional guidelines for minimizing the
intrusiveness of the sobriety checkpoint stop." (Id.
at p. 1341 at p. 1341.)
The factors identified in Ingersoll are:
(1) Whether the decision to establish a sobriety
checkpoint, the selection of the site, and the
procedures for the operation of the checkpoint are
made and established by supervisory law enforcement
personnel;
(2) Whether motorists are stopped according to a
neutral formula, such as every third, fifth or tenth
driver;
(3) Whether adequate safety precautions are taken,
such as proper lighting, warning signs, and signals,
and whether clearly identifiable official vehicles and
personnel are used;
(4) Whether the location of the checkpoint was
determined by a policymaking official, and was
reasonable, i.e., on a road having a high incidence of
alcohol-related accidents or arrests;
(5) Whether the time the checkpoint was conducted and
its duration reflect "good judgment" on the part of
law enforcement officials;
(6) Whether the checkpoint exhibits sufficient indicia
of its official nature (to reassure motorists of the
authorized nature of the stop);
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(7) Whether the average length and nature of the
detention is minimized; and
(8) Whether the checkpoint is preceded by publicity.
(Ingersoll, supra, 43 Cal.3d at pp. 1341-1347, supra,
43 Cal.3d at pp. 1341-1347.) (People v. Banks, 6 Cal.
4th 926, 935-937 (Cal. 1993).)
In opposition, the California Public Defenders believe that the
factors in Ingersoll must apply to the stops contemplated by
this bill.
Are the stops contemplated by this bill constitutional?
4. Civil Fines
This bill also creates new civil fines for specified offenses
relating to the diversion or polluting of water on public lands.
This issue was discussed in the Senate Committee on Natural
Resources and Water on June 19, 2012. The bill passed that
Committee with a vote of 6-0.
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its duration reflect "good judgment" on the part of
law enforcement officials;
(6) Whether the checkpoint exhibits sufficient indicia
of its official nature (to reassure motorists of the
authorized nature of the stop);
AB 2284 (Chesbro)
Page 13
(7) Whether the average length and nature of the
detention is minimized; and
(8) Whether the checkpoint is preceded by publicity.
(Ingersoll, supra, 43 Cal.3d at pp. 1341-1347, supra,
43 Cal.3d at pp. 1341-1347.) (People v. Banks, 6 Cal.
4th 926, 935-937 (Cal. 1993).)
In opposition, the California Public Defenders believe that the
factors in Ingersoll must apply to the stops contemplated by
this bill.
Are the stops contemplated by this bill constitutional?
4. Civil Fines
This bill also creates new civil fines for specified offenses
relating to the diversion or polluting of water on public lands.
This issue was discussed in the Senate Committee on Natural
Resources and Water on June 19, 2012. The bill passed that
Committee with a vote of 6-0.
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