2023 Legislative Update
By Ray Hill
Professor Emeritus, Santa Rosa Junior College
Lawmakers have introduced several bills in this year’s legislative session that could have an impact on day-to-day law enforcement operations. With advocacy from the California Police Chiefs Association, the California State Sheriffs’ Association, the California District Attorneys Association and other law enforcement partners, these bills discussed below were stalled for this legislative session or modified in moving forward.
Here is an update on what has happened recently in Sacramento:
AB 742 (Failed) – This bill would have restricted the use of police dogs to make an arrest or apprehension unless there is an imminent threat of death or serious bodily injury. Dogs could still be used in situations involving search and rescue or detection of drugs or explosives. A Los Angeles Sheriff’s Department report opposing the bill stated that such a law would “severely restrict an officer’s ability to employ a proven, effective and less-lethal option that can deescalate other potentially life-threatening situations.” The bill fell several votes short of approval.
Conclusion: Continue to follow your “legally vetted” use-of-force policies for deployment of police canines.
AB 93 (Failed) – This bill would have prohibited asking for a consent search of a person or a vehicle without a search warrant or other search justification. This is the second time this bill has been introduced.
Conclusion: It never ceases to amaze me how the folks in Sacramento attempt to interpret the U.S. Constitution. Not their ballpark, never has been, never will be. The lawfulness of a consent search is solely within the purview of case law decided by the U.S. Supreme Court: “In a society based on law, the concept of agreement and consent should be given its own weight and dignity,” “Police officers act in full accord with the law when they ask citizens for consent” and “It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding” (U.S. v. Drayton (2002) 536 U.S. 194). Also, Right-to-Truth-in-Evidence in Article I, Section 28 of the California Constitution states that no relevant evidence can be excluded in a criminal proceeding unless the manner in which that evidence was obtained violates the U.S. Constitution.
Data on consent searches is routinely recorded and reported to DOJ under California’s Racial and Identity Profiling Act of 2015 (12525.5 (a)(1) P.C.). Also, the “knowingly, voluntarily, and authority” components of a lawful consent search can receive a full review during a motion to suppress evidence in Superior Court.
LegalUpdates.com has a full discussion of consent searches in Robert Phillips, “The Fourth Amendment – Search and Seizure,” 23rd Edition, Chapter 20, Page 1895 et. al. This valuable document is available to Pro Subscribers on the Legal Update Publishing Company website. Whether a field officer, detective, attorney or magistrate, this compendium is the most comprehensive and searchable treatment of Fourth Amendment case law available with relevant California references. It is updated yearly to keep you and your colleagues informed.
SB 50 (Passed with modification and sent to the Assembly) – The original bill prohibited a traffic stop on a motor vehicle or bicycle for defined “minor offenses” unless there was otherwise independent suspicion of criminal activity. A citation could only be issued when the violator was stopped for a more serious traffic violation. The goal was to ban “pretext stops” which the author stated are “intrusive” and can be motivated by racial profiling. This bill passed in the Senate with a modification that in order to make “minor offense” traffic stops, there needs to be two such offenses present. One enforceable California Vehicle Code violation doesn’t cut it. Give me a break! As of late June, the bill is pending in the Assembly Public Safety Committee.
Conclusion: We will keep you updated on what happens in the Assembly, but again, the California legislature can’t reinterpret the Fourth Amendment. “Pretext stops” have been upheld by the U.S. Supreme Court in a number of challenges:
· As long as there is probable cause to make the traffic stop, any ulterior motive of police officers is irrelevant (Arkansas v. Sullivan (2001) 532 U.S. 769):
Washington D.C. vice officers became suspicious of a vehicle in a “high drug area.” When the driver turned without signaling, the officers made a traffic stop. Upon approach, rock cocaine was observed in defendant’s lap. The defendant argued the officers used the traffic violation as a ruse to investigate drug activity and no reasonable vice officer would be enforcing traffic laws (the officers did not even carry a citation book). “The decision to stop an automobile is reasonable when the police have probable cause to believe a traffic violation has occurred.” An ulterior motive doesn’t invalidate a traffic detention based upon probable cause. (U.S. v. Whren (1996) 517 U.S. 808).
See also Robert Phillips on LegalUpdates.com, “The Fourth Amendment – Search and Seizure.” 23rd Edition, Detentions, Page 317 (available only to our Professional Subscribers) and LUPC Ref. #CAB00190 (12/5/22) – “Pretext Stops – The Law vs. Policy.”
If your agency has already adopted a local policy restricting traffic stops for “minor offenses,” that is your reality.
SB 50 would also authorize local authorities to enforce a violation of the vehicle code through government employees who are not peace officers.
As with consent search data, traffic stop data is also routinely recorded and reported to DOJ under California’s Racial and Identity Profiling Act of 2015 (12525.5 (a)(1) P.C.).
Stand by for further follow up.
Stay Safe,
RH
