Amended in Senate August 31, 2015

Amended in Assembly April 16, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 303


Introduced by Assembly Member Gonzalez

February 12, 2015


An act to amend Section 4030 of, and to add Section 4031 to, the Penal Code, relating to searches.

LEGISLATIVE COUNSEL’S DIGEST

AB 303, as amended, Gonzalez. Searches: county jails.

Existing law establishes a statewide policy strictly limiting strip and body cavity searches of prearraignment detainees arrested for infraction or misdemeanor offenses and of minors detained prior to a detention hearing on the grounds that he or she is alleged to have committed a misdemeanor or infraction offense. Existing law provides that if 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 substances prior to being placed in a booking cell. Existing law requires, among other things, that all persons conducting or otherwise present during a strip search or visual or physical body cavity search to be of the same sex as the person being searched, except for physicians or licensed medical personnel. Under existing law, a person who knowingly and willfully authorizes or conducts a strip, visual, or physical body cavity search in violation of the prescribed provisions is guilty of a misdemeanor.

This bill would additionally require that all persons within sight of the inmate during a strip search or visual or physical body cavity search be of the same sex as the person being searched, except for physicians or licensed medical personnel. The bill would extend the protections regarding the manner in which a strip search is conducted to allbegin delete juvenile inmates.end deletebegin insert minors held in a juvenile detention facility.end insert By expanding the definition of a crime, creating a new crime, and imposing additional requirements on local law enforcement, this bill would create 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 4030 of the Penal Code is amended to
2read:

3

4030.  

(a) begin insert(1)end insertbegin insertend insert The Legislature finds and declares that law
4enforcement policies and practices for conducting strip or body
5cavity searches of detained persons vary widely throughout
6California. Consequently, some people have been arbitrarily
7subjected to unnecessary strip and body cavity searches after arrests
8for minor misdemeanor and infraction offenses. Some present
9search practices violate state and federal constitutional rights to
10privacy and freedom from unreasonable searches and seizures.

begin delete

11It

end delete

12begin insert(2)end insertbegin insertend insertbegin insertItend insert is the intent of the Legislature in enacting this section to
13protect the state and federal constitutional rights of the people of
14California by establishing a statewide policy strictly limiting strip
15and body cavity searches.

16(b) The provisions of this section shall apply only to
17prearraignment detainees arrested for infraction or misdemeanor
P3    1offenses and to any minor detained prior to a detention hearing on
2the grounds that he or she is a person described in Section 300,
3601, or 602 of the Welfare and Institutions Code alleged to have
4committed a misdemeanor or infraction offense. The provisions
5of this section shall not apply tobegin delete anyend deletebegin insert aend insert person in the custody of the
6begin delete Directorend deletebegin insert Secretaryend insert of the Department of Correctionsbegin insert and
7Rehabilitationend insert
or the Director of thebegin delete Youth Authority.end deletebegin insert Division of
8Juvenile Justice in the Department of Corrections and
9Rehabilitation.end insert

begin insert

10(c) As used in this section the following definitions shall apply:

end insert
begin insert

11(1) “Body cavity” only means the stomach or rectal cavity of
12a person, and vagina of a female person.

end insert
begin insert

13(2) “Physical body cavity search” means physical intrusion
14into a body cavity for the purpose of discovering any object
15concealed in the body cavity.

end insert
begin delete

16(c) As used in this section and Section 4031, “strip

end delete

17begin insert(3)end insertbegin insertend insertbegin insert“Stripend insertsearch” means a search which requires a person to
18remove or arrange some or all of his or her clothing so as to permit
19a visual inspection of the underclothing, breasts, buttocks, or
20genitalia of such person.

begin delete

21(d) As used in this section and Section 4031:

end delete
begin delete

22(1) “Body cavity” only means the stomach or rectal cavity of a
23person, and vagina of a female person.

end delete
begin delete

24 (2)

end delete

25begin insert(4)end insert “Visual body cavity search” means visual inspection of a
26body cavity.

begin delete

27(3) “Physical body cavity search” means physical intrusion into
28a body cavity for the purpose of discovering any object concealed
29in the body cavity.

30 (e)

end delete

31begin insert(d)end insert Notwithstanding any otherbegin delete provision ofend delete law, including
32Section 40304.5 of the Vehicle Code, when a person is arrested
33and taken into custody, that person may be subjected to patdown
34searches, metal detector searches, and thorough clothing searches
35in order to discover and retrieve concealed weapons and contraband
36substances prior to being placed in a booking cell.

begin delete

37 (f) No

end delete

38begin insert(e)end insertbegin insertend insertbegin insertAend insert person arrested and held in custody on a misdemeanor or
39infraction offense, except those involving weapons, controlled
40begin delete substances or violence nor anyend deletebegin insert substances, or violence, or aend insert minor
P4    1detained prior to a detention hearing on the grounds that he or she
2is a person described in Section 300, 601 or 602 of the Welfare
3and Institutions Code, except for those minors alleged to have
4committed felonies or offenses involving weapons, controlled
5begin delete substancesend deletebegin insert substances,end insert or violence, shallbegin insert notend insert be subjected to a strip
6search or visual body cavity search prior to placement in the general
7jail population, unless a peace officer has determined there is
8reasonablebegin delete suspicionend deletebegin insert suspicion,end insert based on specific and articulable
9begin delete factsend deletebegin insert facts,end insert to believebegin delete suchend deletebegin insert thatend insert person is concealing a weapon or
10contraband, and a strip search will result in the discovery of the
11weapon or contraband.begin delete Noend deletebegin insert Aend insert strip search or visual body cavity
12begin delete search or both mayend deletebegin insert search, or both, shall notend insert be conducted without
13the prior written authorization of the supervising officer on duty.
14The authorization shall include the specific and articulable facts
15and circumstances upon which the reasonable suspicion
16determination was made by the supervisor.

begin delete

17 (g)

end delete

18begin insert(f)end insert (1) Except pursuant to the provisions of paragraph (2),begin delete noend delete
19begin insert aend insert person arrested and held in custody on a misdemeanor or
20infraction offense not involving weapons, controlledbegin delete substancesend delete
21begin insert substances,end insert or violence, shallbegin insert notend insert be confined in the general jail
22population unless all of the following are true:

23(A) The person is not cited and released.

24(B) The person is not released on his or her own recognizance
25pursuant to Article 9 (commencing with Section 1318) of Chapter
261 of Title 10 of Part 2.

27(C) The person is not able to post bail within a reasonablebegin delete timeend delete
28begin insert time,end insert not less than three hours.

29(2) begin deleteNo end deletebegin insertA end insertpersonbegin delete mayend deletebegin insert shall notend insert be housed in the general jail
30population prior to release pursuant to the provisions of paragraph
31(1) unless a documented emergency exists and there is no
32reasonable alternative tobegin delete suchend deletebegin insert thatend insert placement.begin delete Suchend deletebegin insert Theend insert person
33shall be placed in the general population only upon prior written
34authorization documenting the specific facts and circumstances of
35the emergency. The written authorization shall be signed by the
36uniformed supervisor of the facility or by a uniformed watch
37commander.begin delete Anyend deletebegin insert Aend insert person confined in the general jail population
38pursuant to paragraph (1) shall retain all rights to release on
39citation, his or her own recognizance, or bailbegin delete whichend deletebegin insert thatend insert were
40preempted as a consequence of the emergency.

begin delete

P5    1 (h) No

end delete

2begin insert(g)end insertbegin insertend insertbegin insertAend insert person arrested on a misdemeanor or infraction offense,
3begin delete nor anyend deletebegin insert or aend insert minor described in subdivision (b), shallbegin insert notend insert be
4subjected to a physical body cavity search except under the
5authority of a search warrant issued by a magistrate specifically
6authorizing the physical body cavity search.

begin delete

7 (i)

end delete

8begin insert(h)end insert A copy of the prior written authorization required by
9subdivisionsbegin insert (e) andend insert (f) andbegin delete (g) andend delete the search warrant required
10by subdivisionbegin delete (h)end deletebegin insert (g)end insert shall be placed in the agency’s records and
11made available, on request, to the person searched or his or her
12authorized representative. With regard tobegin delete any strip, visual or bodyend delete
13begin insert a strip search or visual or physical body cavityend insert search, the time,
14begin delete dateend deletebegin insert date,end insert and place of the search, the name and sex of the person
15conducting thebegin delete searchend deletebegin insert search,end insert and a statement of the results of the
16search, including a list ofbegin delete anyend delete items removed from the person
17searched, shall be recorded in the agency’s records and made
18available, upon request, to the person searched or his or her
19authorized representative.

begin delete

20 (j)

end delete

21begin insert(i)end insert Persons conducting a strip search or a visual body cavity
22search shall not touch the breasts, buttocks, or genitalia of the
23person being searched.

begin delete

24 (k)

end delete

25begin insert(j)end insert A physical body cavity search shall be conducted under
26sanitary conditions, and only by a physician, nurse practitioner,
27registered nurse, licensed vocationalbegin delete nurseend deletebegin insert nurse,end insert or emergency
28medical technician Level II licensed to practice in this state.begin delete Anyend delete
29begin insert Aend insert physician engaged in providing health care to detainees and
30inmates of the facility may conduct physical body cavity searches.

begin delete

31(l) All persons

end delete

32begin insert(k)end insertbegin insertend insertbegin insertA personend insert conducting or otherwise present or within sight of
33the inmate during a strip search or visual or physical body cavity
34search shall be of the same sex as the person being searched, except
35for physicians or licensed medical personnel.

begin delete

36 (m)

end delete

37begin insert(end insertbegin insertlend insertbegin insert)end insert All strip, visual, and physical body cavity searches shall be
38conducted in an area of privacy so that the search cannot be
39observed by persons not participating in the search. Persons are
40considered to be participating in the search if their official duties
P6    1relative to search procedure require them to be present at the time
2the search is conducted.

begin delete

3 (n)

end delete

4begin insert(m)end insert A person who knowingly and willfully authorizes or
5conducts abegin delete strip, visual,end deletebegin insert strip search or visualend insert or physical body
6cavity search in violation of this section is guilty of a misdemeanor.

begin delete

7 (o)

end delete

8begin insert(n)end insert Nothing in this section shall be construed as limitingbegin delete anyend delete
9begin insert theend insert common law or statutory rights ofbegin delete anyend deletebegin insert aend insert person regardingbegin delete anyend delete
10begin insert anend insert action for damages or injunctive relief, or as precluding the
11prosecution under anotherbegin delete provision ofend delete law ofbegin delete anyend deletebegin insert aend insert peace officer
12or other person who has violated this section.

begin delete

13 (p)

end delete

14begin insert(o)end insert Any person who suffers damage or harm as a result of a
15violation of this section may bring a civil action to recover actual
16damages, or one thousand dollars ($1,000), whichever is greater.
17In addition, the court may, in its discretion, award punitive
18damages, equitable relief as it deems necessary and proper, and
19costs, including reasonable attorney’s fees.

20

SEC. 2.  

Section 4031 is added to the Penal Code, to read:

21

4031.  

(a) This section applies to all minors detainedbegin insert in a
22juvenile detention centerend insert
on the grounds that he or she is a person
23described in Section 300, 601, or 602 of the Welfare and
24Institutions Code, and all minors adjudged a ward of the courtbegin insert and
25held in a juvenile detention centerend insert
on the grounds he or she is a
26person described in Section 300, 601, or 602 of the Welfare and
27Institutions Code.

28(b) Persons conducting a strip search or a visual body cavity
29search shall not touch the breasts, buttocks, or genitalia of the
30person being searched.

31(c) A physical body cavity search shall be conducted under
32sanitary conditions, and only by a physician, nurse practitioner,
33registered nurse, licensed vocationalbegin delete nurseend deletebegin insert nurse,end insert or emergency
34medical technician Level II licensed to practice in this state.begin delete Anyend delete
35begin insert Aend insert physician engaged in providing health care tobegin delete detaineesend delete
36begin insert detainees, wards,end insert and inmates of the facility may conduct physical
37body cavity searches.

38(d) begin deleteAll persons end deletebegin insertA person end insertconducting or otherwise present or
39within sight of the inmate during a strip search or visual or physical
P7    1body cavity search shall be of the same sex as the person being
2searched, except for physicians or licensed medical personnel.

3(e) Allbegin delete strip, visual,end deletebegin insert strip searches and visualend insert and physical body
4cavity searches shall be conducted in an area of privacy so that the
5search cannot be observed by persons not participating in the
6search. Persons are considered to be participating in the search if
7their official duties relative to search procedure require them to
8be present at the time the search is conducted.

9(f) A person who knowingly and willfully authorizes or conducts
10abegin delete strip, visual,end deletebegin insert strip searches and visualend insert or physical body cavity
11search in violation of this section is guilty of a misdemeanor.

12(g) Nothing in this section shall be construed as limitingbegin delete anyend delete
13begin insert theend insert common law or statutory rights ofbegin delete anyend deletebegin insert aend insert person regardingbegin delete anyend delete
14begin insert anend insert action for damages or injunctive relief, or as precluding the
15prosecution under anotherbegin delete provision ofend delete law ofbegin delete anyend deletebegin insert aend insert peace officer
16or other person who has violated this section.

17(h) Any person who suffers damage or harm as a result of a
18violation of this section may bring a civil action to recover actual
19damages, or one thousand dollars ($1,000), whichever is greater.
20In addition, the court may, in its discretion, award punitive
21damages, equitable relief as it deems necessary and proper, and
22costs, including reasonable attorney’s fees.

begin insert

23(i) This section does not limit the protections granted by Section
244030 to individuals described in subdivision (b) of that section.

end insert
25

SEC. 3.  

No reimbursement is required by this act pursuant to
26Section 6 of Article XIII B of the California Constitution for certain
27costs that may be incurred by a local agency or school district
28because, in that regard, this act creates a new crime or infraction,
29eliminates a crime or infraction, or changes the penalty for a crime
30or infraction, within the meaning of Section 17556 of the
31Government Code, or changes the definition of a crime within the
32meaning of Section 6 of Article XIII B of the California
33Constitution.

34However, if the Commission on State Mandates determines that
35this act contains other costs mandated by the state, reimbursement
36to local agencies and school districts for those costs shall be made
37pursuant to Part 7 (commencing with Section 17500) of Division
384 of Title 2 of the Government Code.



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