Bill Text: CA AB1705 | 2015-2016 | Regular Session | Chaptered
Bill Title: Jails: searches.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2016-08-22 - Chaptered by Secretary of State - Chapter 162, Statutes of 2016. [AB1705 Detail]
Download: California-2015-AB1705-Chaptered.html
BILL NUMBER: AB 1705 CHAPTERED
BILL TEXT
CHAPTER 162
FILED WITH SECRETARY OF STATE AUGUST 22, 2016
APPROVED BY GOVERNOR AUGUST 22, 2016
PASSED THE SENATE AUGUST 1, 2016
PASSED THE ASSEMBLY AUGUST 4, 2016
AMENDED IN SENATE JUNE 8, 2016
INTRODUCED BY Assembly Member Rodriguez
JANUARY 25, 2016
An act to amend Section 4030 of the Penal Code, relating to jails.
LEGISLATIVE COUNSEL'S DIGEST
AB 1705, Rodriguez. Jails: searches.
Existing law generally prohibits strip searches and body cavity
searches of prearraignment detainees arrested for infraction or
misdemeanor offenses. Existing law allows a person who has been
arrested and taken into custody to be subjected to patdown searches,
metal detector searches, and thorough clothing searches in order to
discover and retrieve concealed weapons and contraband substances
prior to being placed in a booking cell.
This bill would also allow law enforcement personnel to subject a
person who is arrested and taken into custody to a body scanner
search for those weapons or substances. The bill would require an
agency utilizing a body scanner to endeavor to avoid knowingly using
a body scanner to scan a woman who is pregnant. The bill would
require a person within sight of the visual display of a body scanner
depicting the body during a scan to be of the same sex as the person
being scanned, except for physicians or licensed medical personnel.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4030 of the Penal Code is amended to read:
4030. (a) (1) The Legislature finds and declares that law
enforcement policies and practices for conducting strip or body
cavity searches of detained persons vary widely throughout
California. Consequently, some people have been arbitrarily subjected
to unnecessary strip and body cavity searches after arrests for
minor misdemeanor and infraction offenses. Some present search
practices violate state and federal constitutional rights to privacy
and freedom from unreasonable searches and seizures.
(2) It is the intent of the Legislature in enacting this section
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.
(b) The provisions of this section shall apply only to
prearraignment detainees arrested for infraction or misdemeanor
offenses and to any minor detained prior to a detention hearing on
the grounds that he or she is a person described in Section 300, 601,
or 602 of the Welfare and Institutions Code alleged to have
committed a misdemeanor or infraction offense. The provisions of this
section shall not apply to a person in the custody of the Secretary
of the Department of Corrections and Rehabilitation or the Director
of the Division of Juvenile Justice in the Department of Corrections
and Rehabilitation.
(c) As used in this section the following definitions shall apply:
(1) "Body cavity" only means the stomach or rectal cavity of a
person, and vagina of a female person.
(2) "Physical body cavity search" means physical intrusion into a
body cavity for the purpose of discovering any object concealed in
the body cavity.
(3) "Strip search" means 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 such person.
(4) "Visual body cavity search" means visual inspection of a body
cavity.
(d) (1) Notwithstanding any other law, including Section 40304.5
of the Vehicle Code, if a person is arrested and taken into custody,
that person may be subjected to patdown searches, metal detector
searches, body scanners, and thorough clothing searches in order to
discover and retrieve concealed weapons and contraband substances
prior to being placed in a booking cell.
(2) An agency that utilizes a body scanner pursuant to this
subdivision shall endeavor to avoid knowingly using a body scanner to
scan a woman who is pregnant.
(e) A person arrested and held in custody on a misdemeanor or
infraction offense, except those involving weapons, controlled
substances, or violence, or a minor detained prior to a detention
hearing on the grounds that he or she is a person described in
Section 300, 601, or 602 of the Welfare and Institutions Code, except
for those minors alleged to have committed felonies or offenses
involving weapons, controlled substances, or violence, shall not be
subjected to a strip search or visual body cavity search prior to
placement in the general jail population, unless a peace officer has
determined there is reasonable suspicion, based on specific and
articulable facts, to believe that person is concealing a weapon or
contraband, and a strip search will result in the discovery of the
weapon or contraband. A strip search or visual body cavity search, or
both, shall not be conducted without the prior written authorization
of the supervising officer on duty. The authorization shall include
the specific and articulable facts and circumstances upon which the
reasonable suspicion determination was made by the supervisor.
(f) (1) Except pursuant to the provisions of paragraph (2), a
person arrested and held in custody on a misdemeanor or infraction
offense not involving weapons, controlled substances, or violence,
shall not be confined in the general jail population unless all of
the following are true:
(A) The person is not cited and released.
(B) 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.
(C) The person is not able to post bail within a reasonable time,
not less than three hours.
(2) A person shall not be housed in the general jail population
prior to release pursuant to the provisions of paragraph (1) unless a
documented emergency exists and there is no reasonable alternative
to that placement. The person shall be placed in the general
population only upon prior written authorization documenting the
specific facts and circumstances of the emergency. The written
authorization shall be signed by the uniformed supervisor of the
facility or by a uniformed watch commander. A person confined in the
general jail population pursuant to paragraph (1) shall retain all
rights to release on citation, his or her own recognizance, or bail
that were preempted as a consequence of the emergency.
(g) A person arrested on a misdemeanor or infraction offense, or a
minor described in subdivision (b), shall not be subjected to a
physical body cavity search except under the authority of a search
warrant issued by a magistrate specifically authorizing the physical
body cavity search.
(h) A copy of the prior written authorization required by
subdivisions (e) and (f) and the search warrant required by
subdivision (g) shall be placed in the agency's records and made
available, on request, to the person searched or his or her
authorized representative. With regard to a strip search or visual or
physical body cavity search, the time, date, and place of the
search, the name and sex of the person conducting the search, and a
statement of the results of the search, including a list of items
removed from the person searched, shall be recorded in the agency's
records and made available, upon request, to the person searched or
his or her authorized representative.
(i) Persons conducting a strip search or a visual body cavity
search shall not touch the breasts, buttocks, or genitalia of the
person being searched.
(j) A physical body cavity search shall be conducted under
sanitary conditions, and only by a physician, nurse practitioner,
registered nurse, licensed vocational nurse, or emergency medical
technician Level II licensed to practice in this state. A physician
engaged in providing health care to detainees and inmates of the
facility may conduct physical body cavity searches.
(k) (1) A person conducting or otherwise present or within sight
of the inmate during a strip search or visual or physical body cavity
search shall be of the same sex as the person being searched, except
for physicians or licensed medical personnel.
(2) A person within sight of the visual display of a body scanner
depicting the body during a scan shall be of the same sex as the
person being scanned, except for physicians or licensed medical
personnel.
( l ) All strip, visual, and physical body cavity
searches shall be conducted in an area of privacy so that the search
cannot be observed by persons not participating in the search.
Persons are considered to be participating in the search if their
official duties relative to search procedure require them to be
present at the time the search is conducted.
(m) A person who knowingly and willfully authorizes or conducts a
strip search or visual or physical body cavity search in violation of
this section is guilty of a misdemeanor.
(n) This section does not limit the common law or statutory rights
of a person regarding an action for damages or injunctive relief, or
preclude the prosecution under another law of a peace officer or
other person who has violated this section.
(o) Any 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 one thousand dollars ($1,000), whichever is greater. In
addition, the court may, in its discretion, award punitive damages,
equitable relief as it deems necessary and proper, and costs,
including reasonable attorney's fees.
