BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
SB 1536 (Leno) - Strip or body cavity search of detained
persons.
Amended: April 9, 2012 Policy Vote: Public Safety 5-2
Urgency: No Mandate: Yes
Hearing Date: May 24, 2012 Consultant: Jolie Onodera
SUSPENSE FILE. AS PROPOSED TO BE AMENDED.
Bill Summary: SB 1536 would prohibit a person, as specified, who
has been arrested and held in custody on a misdemeanor or
infraction offense not involving weapons, controlled substances,
or violence, from being confined in the general jail population
unless all of 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
not less than three hours.
This bill does not change the exceptions under existing law to
either a strip search upon reasonable suspicion by a peace
officer or a move to the general jail population under a
documented emergency and no other reasonable alternative, as
specified.
Fiscal Impact:
Potentially significant to major ongoing costs in the
low millions of dollars (General Fund) to the courts to the
extent local jails seek an increased number of magistrate
determinations for release on one's own recognizance
outside of the typical arraignment hearing in order to
comply with the provisions of this bill.
Unknown, potentially significant costs (Local) to local
law enforcement to comply with the provisions of this bill.
To the extent test claims are filed by local law
enforcement agencies, and the Commission on State Mandates
SB 1536 (Leno)
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determines the provisions of this bill constitute a higher
level of service, costs would be subject to reimbursement
by the state (General Fund).
Background: Existing law states the conditions and manner in
which strip searches may occur in local detention facilities. AB
1367 (Waters) Chapter 35/1984 includes codified language stating
the intent of the Legislature 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.
These provisions apply only to pre-arraignment detainees
arrested for infraction or misdemeanor offenses and to minors
detained prior to a detention hearing. Existing law
provides that no person as just described held in custody on a
misdemeanor or infraction offense, except those involving
weapons, controlled substances, or violence, shall be subjected
to a strip 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 to believe the person
is concealing a weapon or contraband, and a strip search will
result in the discovery of the weapon or contraband. A strip
search may only occur with the prior written authorization of
the supervising officer on duty.
Penal Code (PC) section 4030(g)(1), which governs the placement
of pre-arraignment arrestees, specifies 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 of the
following are true:
The person is not cited and released.
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.
The person is not able to post bail within a
reasonable time not less than three hours.
Proposed Law: The author seeks to clarify existing law to make
it explicit that a person arrested for a misdemeanor or
infraction offense not involving weapons, controlled substances,
or violence shall be brought before a magistrate before being
confined in the general population of a jail.
SB 1536 (Leno)
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Specifically, this bill provides that no person who is a
pre-arraignment detainee who has been 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 of 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
not less than three hours.
This bill also makes a number of technical amendments.
Prior Legislation: AB 1367 (Waters) Chapter 35/1984 established
a statewide policy strictly limiting strip and body cavity
searches for adult and juvenile pre-arraignment detainees prior
to a detention hearing for a misdemeanor or infraction offense.
Staff Comments: This bill seeks to clarify when a
pre-arraignment detainee may be moved into the general jail
population. Existing law under PC section 4030(g)(1) as written
is ambiguous, and there are conflicting interpretations of its
meaning. As a result, the proposed amendments to this section
are arguably not declaratory of existing law, but rather seek to
clarify its intended meaning.
Existing law is not explicit regarding whether a person who is
arrested on a misdemeanor or infraction offense that does not
involve weapons, controlled substances, or violence can be
placed into the general population of a jail only after being
denied release on his or her own recognizance pursuant to a
magistrate's determination. Specifically, the interpretation of
the PC section 4030(g)(1)(ii) stating, "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." is unclear.
SB 1536 (Leno)
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This bill would prohibit a person arrested and held in custody
on a misdemeanor or infraction offense not involving weapons,
controlled substances, or violence, from being confined in the
general jail population until after a judge or magistrate has
determined that the person does not qualify for release on his
or her own recognizance.
Currently, it is the practice of some jails to place
pre-arraignment detainees in the general population if the
detainee is not released on his or her own recognizance and is
unable to post bail within a reasonable amount of time. This
practice reflects the interpretation that the detainee has not
been released on his or her own recognizance, and not that the
detainee has been denied release on his or her own recognizance
by a court's determination.
Prohibiting the placement of pre-arraignment detainees in the
general jail population until after a judge or magistrate denies
release to an individual as required under the provisions of
this bill could result in an increased number of pre-arraignment
detainees requiring segregation from the general population for
a longer period of time than otherwise would occur under
existing jail practices. Segregating an additional portion, or a
larger portion, of a jail facility for additional
pre-arraignment detainees could result in increased costs to the
jails if other alternatives are not feasible or possible on an
ongoing basis. The extent of costs statewide is unknown at this
time but could be significant. Costs would vary among individual
jails and would be dependent upon multiple factors including but
not limited to the caseload impact per facility, available space
within any particular jail, whether operating under a federal
court mandate to control population, revisions to existing
release policies/procedures, and the degree to which additional
court determinations are sought. To the extent release policies
and procedures are revised to authorize additional detainees to
be released could relieve the pressure on the number of
detainees requiring segregation. Significant revisions to
existing policies and procedures could result in additional
costs for training to ensure uniform compliance.
Should test claims be filed by local jail facilities and the
Commission on State Mandates determines the provisions of this
bill constitute a higher level of service on local jails, costs
would be subject to reimbursement by the state (General Fund).
SB 1536 (Leno)
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Court decisions to grant release on one's own recognizance are
typically not made until a detainee's arraignment hearing, which
could take place within several hours, or could occur two or
three days after the initial arrest if the arrest occurs just
prior to or over the weekend. To the extent jail officers seek a
magistrate's determination for release on one's own recognizance
prior to arraignment to comply with the provisions of this bill
would reduce the potential impact to jails with regard to the
number and length of time detainees would require segregation.
However, the courts could potentially incur substantial ongoing
costs to manage the additional workload that otherwise would not
have been incurred under existing practices. During weekdays and
normal business hours, if additional pre-arraignment hearings
are calendared to meet the demand for magistrate determinations,
each 1,000 individuals requiring a hearing would result in
increased costs to the courts of $667,000 (General Fund) per
year based on an hourly court cost of $667. If full hearings are
not required but additional hours of magistrate staffing during
weekends and non-business hours are required to make
determinations, annual costs could range from $870,000 for
weekends to $2 million including non-business hours on weekdays,
based on a proration of the monthly magistrate salary of
approximately $12,500 across the 58 courts statewide. To the
extent full positions are required, annual costs could be
substantially higher.
Author's amendments would add both uncodified and codified
legislative intent language including a provision stating that
nothing in the section is to be interpreted as changing the law
governing the release of a person on his or her own
recognizance, including but not limited to requiring an
additional pre-arraignment hearing or determination by the
court. Author's amendments would make other technical changes.