Bill Text: CA AB93 | 2023-2024 | Regular Session | Amended
Bill Title: Criminal procedure: consensual searches.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2023-06-01 - Read third time. Refused passage. (Ayes 35. Noes 22. Page 2145.). [AB93 Detail]
Download: California-2023-AB93-Amended.html
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Amended
IN
Assembly
May 30, 2023 |
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Amended
IN
Assembly
February 23, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 93
| Introduced by Assembly Member Bryan |
January 09, 2023 |
An act to add Section 833.6 to the Penal Code, relating to criminal law.
LEGISLATIVE COUNSEL'S DIGEST
AB 93, as amended, Bryan.
Criminal procedure: consensual searches.
Existing law describes search warrants and enumerates the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized constitute evidence showing that a felony has been committed. Existing law authorizes a peace officer to conduct a search without a warrant if they have the voluntary consent of the person.
This bill would prohibit a peace officer or law enforcement agency from conducting a warrantless search of a vehicle, person, or their effects, based solely on a person’s consent, as specified. consent unless the officer has reasonable and articulable suspicion to believe they contain evidence of a crime.
The bill would specify that consent to conduct a search is not lawful justification for a search. search unless the officer also has reasonable and articulable suspicion to believe the search would uncover evidence of a crime. The bill would require a peace officer to inform a person of their right to refuse a consent search and to document their consent in a written form, as specified. By imposing new duties on law enforcement agencies, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for
making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares all of the following:(a) The people have a right to be secure in their persons and effects against unreasonable seizures and searches. Search warrants may not be issued except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.
(b) Nevertheless, every year, law enforcement agencies conduct tens of thousands of searches of people in California that are based not on any warrant, probable cause, nor even any factual basis to suspect a crime, but merely on the
purported consent to search given by a person confronted on the street by a police officer.
(c) Data and research make clear that such searches should not be considered truly consensual. In data reported to the state, officers report that 98.5 percent of individuals consent to a search when asked. Social psychology research indicates that the consent to search that people give when asked by an authority figure is not truly voluntary due to power dynamics, particularly with vulnerable populations. In California, policing agencies reported most frequently subjecting youth 10 to 17 years of age to searches based solely on purported consent.
(d) Data and research show that these factually baseless searches are not beneficial for public safety, because searches of people and vehicles
in which the only legal justification for the search is the person’s purported consent have very low rates of discovering evidence of crime. Though police officers perform consent-only searches in stops of Black and Hispanic or Latine people more frequently, they are also least likely to find contraband or evidence during those searches.
(e) Considering the race of an individual to any degree when deciding whether to conduct additional actions during a stop, including consensual searches or asking questions, violates California law prohibiting racial or identity profiling. However, data and research show that giving officers the discretion to seek factually baseless searches based on purported consent leads to disparate stops and searches of Black and Hispanic or Latine individuals. State stop data show that when consent searches are performed,
the underlying reason for the initial police contact is more likely to be traffic enforcement for people of color than it is for Caucasian people, raising the concern that consent searches incentivize racially biased pretextual stops. Black individuals are 4 times as likely, Hispanic or Latine individuals 2.4 times as likely, and Multiracial individuals 2.2 times as likely to be asked for consent to search during a traffic stop than Caucasian individuals.
(f) Increased police contacts including searches can have a negative impact on public health and safety, with Black individuals who have been stopped and those that live in communities where such stops frequently occur reporting higher levels of anxiety, trauma, post-traumatic stress disorder, and depression along with other negative health consequences, including trauma-induced sleep
deprivation in youth who are stopped or vicariously experience abusive police behaviors. It may also undermine public faith in the institution of policing, with research finding that individuals perceive stops for minor infractions that lead to officers asking additional questions, such as for consent to search, as illegitimate uses of police authority.
SEC. 2.
It is the intent of the Legislature to ensure the right of the people to be secure in their persons and effects against police searches based on purported consent rather than on an evidentiary basis.SEC. 3.
Section 833.6 is added to the Penal Code, to read:833.6.
(a) The consent of a person given to a peace officer to conduct a search shall not constitute lawful justification for a(b) A peace officer shall not seek consent to conduct a warrantless search of a vehicle, person, or their effects. effects unless the officer has reasonable and articulable suspicion to believe they contain evidence of a crime.
(c) When requesting consent to search, a peace officer shall inform the person to be searched of their right to refuse the search.
(d) A person’s consent to search shall be documented in a written form signed by the searched person.
(c)
(e) A law enforcement agency shall not authorize a peace officer to conduct a search in violation of this section.
(d)
(f) This section shall not be construed to limit the authority of a peace officer to conduct a search based on probable cause, a
valid warrant, or another legal basis that is not consent.
