BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1536 (Leno) 6
As Amended April 9, 2012
Hearing date: April 24, 2012
Penal Code
MK:mc
STRIP OR BODY CAVITY SEARCH OF DETAINED PERSONS
HISTORY
Source: Author
Prior Legislation: AB 1367 (Waters) - Chapter 35, Stats. 1984
AB 270 (Waters) - vetoed, 1984
AB 440 (Brown) - failed Assembly Criminal Law and
Public Safety Committee 1984
AB3280 (Waters) not heard Assembly Criminal Law and
Public Safety Committee 1984
Support: California Public Defenders Association; American Civil
Liberties Union
Opposition:-California State Sheriffs' Association
KEY ISSUE
SHOULD THE LAW CLARIFY THAT A PERSON CHARGED WITH A MISDEMEANOR OR
INFRACTION SHALL BE BROUGHT BEFORE A MAGISTRATE BEFORE BEING
CONFINED IN THE GENERAL POPULATION OF THE JAIL?
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PURPOSE
The purpose of this bill is to clarify that a person charged
with a misdemeanor or infraction shall be brought before a
magistrate before being confined in the general population of
the jail.
Existing law declares legislative intent to protect the state
and federal constitutional rights of the people of California by
establishing a statewide policy strictly limiting strip and body
cavity searches. (Penal Code � 4030(a).)
Existing law provides that the provisions relating to strip
searches shall only apply to pre-arraignment detainees arrested
for infraction or misdemeanor offenses and to any minor detained
prior to detention hearing. (Penal Code � 4030(b).)
Existing law defines "strip search" as a search which requires a
person to remove or arrange some or all of his or her clothing
so as to permit a visual inspection of the underclothing,
breasts, buttocks, or genitalia of the person. (Penal Code �
4030(c).)
Existing law defines "body cavity" as the stomach or rectal
cavity of a person and the vagina of a female person. (Penal
Code � 4030(d)(1).)
Existing law provides that "visual body cavity search" as a
visual inspection of a body cavity. (Penal Code � 4030(d)(2).)
Existing law provides that "physical body cavity search" as a
physical intrusion into a body cavity for the purpose of
discovering an object concealed in the body cavity. (Penal Code
� 4030(d)(3).)
Existing law provides that when a person is arrested and taken
into custody, that person may be subjected to patdown searches,
metal detector searches and thorough clothing searches in order
to discover and retrieve concealed weapons and contraband
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substances prior to be placed in a booking cell. (Penal Code �
4030(e).)
Existing law provides that no person arrested and held in
custody on a misdemeanor or infraction offense, except those
involving weapons, controlled substances, or violence nor any
minor detained prior to a detention hearing, except those minors
alleged to have committed felonies or offenses involving
weapons, controlled substances or violence shall be subjected to
a strip search or visual body cavity search prior to the
placement in the general jail population unless a peace officer
has determined there is a reasonable suspicion based on specific
and articulable facts to believe the person is concealing a
weapon or contraband, and a strip search will result in the
weapon or contraband. A strip search may only occur with the
written authorization of the supervising officer on duty.
(Penal Code � 4030(f).)
Existing law provides that no person arrested and held in
custody on a misdemeanor or infraction offense not involving
weapons, controlled substances, or violence shall be confined in
the general jail population unless all the following are true:
The person is not cited and released.
The person is not released on his or her own
recognizance.
The person is not able to post bail within a reasonable
time of not less than three hours. (Penal Code �
4030(g)(1).)
Existing law provides that no person may be housed in the
general jail population prior to release unless a documented
emergency exists and there is no reasonable alternative to such
placement and only upon prior written authorization signed by
the uniformed supervisor of the facility documenting the
specific facts and circumstances of the emergency. (Penal Code
� 4030(g) (2).)
Existing law provides that no person arrested on a misdemeanor
or infraction offense, nor a minor shall be subject to a
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physical body cavity search except under the authority of a
search warrant issued by a magistrate specifically authorizing
the physical body cavity search. The written authorization
shall be placed in the agency's record. (Penal Code � 4030(h)
and (i).)
Existing law sets forth how a strip search shall take place.
(Penal Code � 4030(j)-(m).)
Existing law provides that person who knowingly and willfully
authorizes or conducts a strip, visual or physical cavity search
in violation of the law is guilty of a misdemeanor. (Penal Code
� 4030 (n).)
Existing law provides that nothing shall be construed as
limiting any common law or statutory rights of a person
regarding an action for damages or injunctive relief or as
precluding the prosecution under another provision of law of a
peace officer or other person who has violated this section.
(Penal Code � 4030(o).)
Existing law provides that a person who suffers damage or harm
as a result of a violation of this section may bring a civil
action to recover actual damages or $1,000, whichever is
greater. In addition, the court may award punitive damages.
(Penal Code � 4030(p).)
This bill provides that no person arrested and held in custody
on a misdemeanor or infraction offense not involving weapons,
controlled substances, or violence shall be confined in the
general jail population unless all the following are true:
The person is not cited and released.
A judge or magistrate has determined that the person
does not qualify for release on his or her own
recognizance.
Once a determination has been made that the person does
not qualify for release on his or her own recognizance, and
the person has been given the opportunity to post bail, the
person is not able to post bail within a reasonable time of
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not less than three hours.
This bill also makes a number of technical amendments.
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.
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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,
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.
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This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
SB 1536 seeks to clarify existing California law to
make it explicit that no person arrested and held in
custody on a misdemeanor or infraction offense not
involving weapons, controlled substances or violence,
shall be confined in the general jail population
without first having been determined not to qualify for
release on their own recognizance and given the
opportunity to post bail in a reasonable time. In the
absence of such a clarification, it is conceivable that
an individual arrested for such an offense may be
subject to a strip search simply by virtue of their
placement with other prisoners. A practice many of the
Justices expressed concerns about in the recent U.S.
Supreme Court case, Florence v. Board of Chosen
Freeholders of County of Burlington.
In Florence, the Court held that jail administrators
may require all arrestees who are committed to the
general population of a jail to undergo visual strip
searches not involving physical contact by corrections
officers. The Court did not, however, make a ruling on
when it is appropriate for an individual to be placed
in the general population, or the appropriateness of a
subsequent strip search in such a circumstance.
Justice Kennedy, in delivering the Opinion of the Court
was careful to note that the facts of the Florence case
did not require the Court to rule on the types of
searches that would be reasonable in instances where a
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detainee would be held - without assignment to the
general jail population and without substantial contact
with other detainees - stating specifically that "the
accommodations provided in these situations may
diminish the need to conduct some aspects of searches
at issue."
Chief Justice Roberts in his concurrence also made it
explicit that the court was ruling on a case where
there "was apparently no alternative, if Florence were
to be detained, to holding him in the general jail
population." And "The Court is nonetheless wise to
leave open the possibility of exceptions, to ensure
that we do not embarrass the future,"
Justice Alito in his concurrence also makes a point of
noting that the ruling of the Court was limited to
individuals entering the general population and not "an
arrestee whose detention has not been reviewed by a
judicial officer and who could be held in available
facilities apart from the general population." Justice
Alito further questions the wisdom of subjecting such
low level offenders to strip searches. "Most of those
arrested for minor offenses are not dangerous, and most
are released from custody prior to or at the initial
appearance before a magistrate. In some cases the
charges are dropped. In others, arrestees are released
either on their own recognizance or on minimal bail.
In the end, few are sentenced to incarceration. For
these persons, admission to the general jail population
with the concomitant humiliation of a strip search may
not be reasonable particularly if an alternative
procedure is feasible."
Justice Alito further cites that the Federal Bureau of
Prisons and local jurisdictions appear to segregate
temporary detainees who are minor offenders from the
general population (Brief for the Unites States as
Amicus Curiae 30; Bull v. City Cty. of San Francisco
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595 F. 3d 964, 968 (CA 9 2010) (en banc).)
Justice Breyer, delivering the dissent for Justices
Ginsburg, Sotomayor, and Kagan, admittedly goes farther
than the majority finding a violation of the Fourth
Amendment occurred in Florence. Nonetheless, the
running theme amongst all of the Justices - specific
concern for the protection of minor offenders in terms
of strip searches - remained constant.
The dissent states:
"Amicus briefs present other instances in which
individuals arrested for minor offenses have been
subject to the humiliations of a visual strip
search?.They include persons who perhaps should never
have been placed in the general population in the first
place."
"I doubt that we seriously disagree about the nature of
the strip search or about the serious affront to human
dignity and to individual privacy that it presents.
The basic question before us is whether such a search
is nonetheless justified when an individual arrested
for a minor offense is involuntarily placed in the
general jail or prison population."
"I have found no convincing reason indicating that, in
the absence of reasonable suspicion, involuntary strip
searches of those arrested for minor offenses are
necessary in order to further the penal interests
mentioned. And there are strong reasons to believe
they are not justified."
"This case does not address and "reserves judgment on"
whether it is always reasonable to strip search an
arrestee before the arrestee's detention has been
reviewed by a judicial officer. In my view, it is
highly questionable that officials would be justified,
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for instance, in admitting to the dangerous world of
the general population and subjecting to a strip search
someone with no criminal background arrested for
jaywalking or another similarly minor crime. Indeed,
that consideration likely underlies why the Federal
Government and many States segregate such individuals
even when admitted to jail, and several jurisdictions
provide that such individuals be released without
detention in the ordinary case."
Under California Penal Code Section 4030, which governs
placement of such pre-arraignment arrestees, it may be
possible for an individual to be placed in the general
jail population without having first had the
opportunity for a judicial officer to make a
determination as to whether the individual may return
on their own recognizance or post bail. This is not
only contrary to the sentiment of the Justices in
Florence, but contrary to the original intent of the
statute which according to PEN Sec. 4030 (a) was, "to
protect the state and federal constitutional rights of
the people of California by establishing a statewide
policy strictly limiting strip and body cavity
searches."
Section 4030(g)(1) specifies that no person "shall be
confined in the general jail population unless all of
the following are true:
(i) The person is not cited and released.
(ii) The person is not released on his or her own
recognizance pursuant to Article 9 (commencing with
Section 1318) of Chapter 1 of Title 10 of Part 2.
(iii) The person is not able to post bail within a
reasonable time not less than three hours."
Section 4030(g)(2) specifies that no person shall be
housed in the general jail population "prior to release
pursuant to the provisions of paragraph (1) unless a
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documented emergency exists and there is no reasonable
alternative to such placement."
While a decision whether to cite and release a person
is generally made upon arrest or, if that person is
taken to jail, shortly after arrival at the jail, a
decision whether or not to grant the person release on
his own recognizance (OR) is not made in most
facilities, until the person is arraigned, sometimes
two to three days after arrest.
Subsequently, in reality, an arrestee, prior to
arraignment that is awaiting an eligibility
determination for OR release may be placed into the
general population and thus subjected to routine strip
search, contrary to the purpose and intent of the
legislation which seeks to reduce the number of persons
subjected to this humiliating procedure.
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The reason that arrestees are placed into the general
population before arraignment and before OR
determination is that 4030(g)(1)(iii) references a
reasonable time - not less than three hours - to post
bail.
The problem that SB 1536 seeks to remedy is that jail
administrators have started the "reasonable time" clock
before the arrestee has even had a determination made
as to their own recognizance, or been given an amount
for which they are responsible to post bail.
SB 1536 makes it clear that simply having to wait more
than three hours does not provide custodial staff with
the authority to place an arrestee with the general
population and thereby bypass the general protection of
that statute against strip searches for low level
offenders.
If an OR determination cannot be made before
arraignment for persons arrested on a charge not
involving violence, drugs, or weapons, and for which
there is no reasonable suspicion to justify a strip
search, jail administrators need only segregate in some
portion of the facility deemed not to be the general
population to comply with the provisions of the bill.
As such, SB 1536 balances the needs of institutional
security and staff safety, with the privacy and dignity
of inmates.
2. Strip-searches Before Entering General Population
On April 2, 2012, the Supreme Court upheld the validity of strip
searches by jail officials for even minor offenses when a person
is being placed in the general population. (Florence v. Board
of Chosen Freeholders of County of Burlington, 2012 US Lexis
2712.) However, the Court did not directly address the issue of
strip searches before a person's detention is reviewed by a
judicial officer and who could be held in a facility apart from
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the general population. (See Justice Alioto Concurrence, id.)
California law currently regulates when and how strip searches
occur in local detention facilities. The provision, which was
passed in 1984, has the codified legislative intent to strictly
limit strip and body cavity searches. The provisions of the law
apply only to adult and juvenile pre-arraignment detainees
arrested for infractions or misdemeanors. The legislative
history is interesting on this provision. The original bill was
vetoed. That same year the language appears to have been put
into a number of other bills one of which was signed. The
language of the original bill and the one signed was not
substantially different. The Senate Judiciary Committee
analysis of the vetoed bill discusses the expected concerns by
the law enforcement opposition regarding jail safety and
potential contraband but also discusses the intent of the bill
to not subject minor offenders to strip searches before they are
arraigned. The intent of the bill to not allow strip searches
prior to arraignment is clear in the exception which allows
strip searches when a person has to enter general population
because of a documented emergency. The legislative history of
passing more than one bill in the same year with the same
language may point to the importance the Legislature placed on
protecting people charged with infractions or misdemeanors from
these searches.
The author believes a change is necessary in existing law to
clarify that a person should not be moved to the general
population, and thus be subject to a strip search, before they
have come before a magistrate who has determined whether they
can be released on their own recognizance or a bail is set. The
bill does not change the existing exceptions in existing law to
either a strip search upon reasonable suspicion or a move to the
general population out of necessity because of an emergency.
According to the author, strip searches prior to arraignment, in
violation of existing law have been litigated and counties have
been found to be liable. The following table is a sample of
those cases:
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|Case |Year |Total Maximum |
| | |Settlement |
|-------------------------------------+-------+-------------------|
|Bull v. Sacramento County |2004 |$15,000,000 |
|-------------------------------------+-------+-------------------|
|Robinson/Kozlowski v. Sacramento |2006 |$4,280,000 |
|County (juvenile) | | |
|-------------------------------------+-------+-------------------|
|Gallagher v. San Mateo County |2007 |$1,900,000 |
|-------------------------------------+-------+-------------------|
|Schaffer v. Alameda County |2007 |$6,150,000 |
|-------------------------------------+-------+-------------------|
|Butler v. Santa Cruz County |2007 |$3,875,000 |
|-------------------------------------+-------+-------------------|
|Suon v. Alameda County (juvenile) |2008 |$4,286,660 |
|-------------------------------------+-------+-------------------|
|Moyle v. Contra Costa County |2009 |$1,750,000 |
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The author believes that clarifying the law will save the
counties from future liability for wrongful strip searches.
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