Bills in the California Legislature Related to the Fourth, Fifth and Eighth Amendments  This is an update to the California Legislative Update (9/26/23) – LU Ref.# CAB00221. 

By Ray Hill 
Professor Emeritus, Santa Rosa Junior College 

Much appreciation to the California Peace Officers Association, California State Sheriffs’ Association, California Police Chiefs Association, California District Attorneys Association, and the California Narcotics Officers’ Association for their legislative advocacy in supporting law enforcement.  

Miranda and Minors (627.7 W&I) 

This legislation was passed in 2023 but is effective 7/24/24.  

During a custodial interrogation of a person under 17 years old relating to the commission of a misdemeanor or felony, a law enforcement officer shall not employ threats, physical harm, deception or psychologically manipulative interrogation tactics. 

Why does this need to be in a statute? A prime example “legislative grandstanding,” I propose. This area is already well covered under Fifth and Fourteenth Amendment case law. There is an enhanced judicial review of a minor’s understanding and waiver of Miranda rights and the conduct of an interrogation that encompasses two tests: personal characteristics of the minor (age, intelligence, education, language barrier, experience in the criminal justice system) and the totality of the circumstances (events surrounding the waiver, police interrogation tactics that play on a minor’s youthfulness or immaturity, conduct indicating an unwillingness to speak).  

Bottom Line – There is more to prove in determining the admissibility of a minor’s statement than with an adult.  

For more, see Robert Phillips’ “Miranda and the Law – The Fifth Amendment – An Update” (July 2022) – Chapter 10 – Juveniles and Miranda. 

I see this legislation as a potential expert witness employment bill where defense psychologists and “interrogation experts” will testify that what you did, what you have used before, what you have been trained to do in P.O.S.T. courses, “psychologically manipulated” a minor into giving you an incriminating statement. Thus making, the statement illegally obtained.  

Limiting Pretext Stops – SB 50 – Bradford-D, Gardena 

This bill would amend 21 and 21100 V.C. and add 2804.5 V.C. It would prohibit a peace officer from stopping or detaining the operator of a motor vehicle or bicycle for a low-level infraction (as defined) unless there exists a separate, independent basis for the stop or more than one low-level infraction is observed.  

This bill was introduced on 12/05/2023 and barely passed the California Senate (5/30/23) by a vote of 22-11 (21 yes votes were required to move the bill forward). The bill was sent to the Assembly and proceeded to a third reading. At this time, the author realized he did not have sufficient votes to pass the bill during the 2023 legislative term. It was placed into the Inactive File (9/23/23). 

As a second-year bill, it returns to the Assembly floor, where the author will attempt to gain the necessary votes for approval. Bradford, the bill’s author, will be termed out on 12/2/2024. An informed source tells me he considers this bill “his baby” and will work tirelessly to gain the necessary votes for its passage. The bill has already been amended twice to allow a suspicionless stop for two or more minor traffic violations. In the original bill, a stop was banned for a single minor traffic violation unless there was separate reasonable suspicion of criminal activity. Also, tinted windows were removed from the list of minor traffic violations. 

The deadline for passing bills and submitting legislation to the governor’s desk is 8/31/24. According to one source, “this is the closest bill to the governor’s desk” that impacts law enforcement. 

The state Racial and Identity Profiling Advisory (RIPA) Board and the Prosecutors Alliance of California, a group of more liberal-thinking district attorneys and victim advocates, recommend ending these “pretext stops.” 

The real impact of this statute, if enacted, is that it represents direction to a community’s law enforcement chief executive, who works under the direction of a city council, community policing advisory board and represents the citizenry in his or her community to curtail or limit pretext stops. 

This bill states that a violation of these provisions is not grounds for a defendant to move for return of property or to suppress evidence. Regardless of this language, the legislature cannot trump (not Donald J.!) decisions rendered by the U.S. Supreme Court in historically upholding the validity of pretext stops. 

See “All About Pretext Stops, Unduly Prolonged Detentions and Weapons Pat Downs – What’s Legal?” 10/19/2023 – LUPC Ref.# CAC00118 and “Pretext Stops – Law vs. Policy” – 12/6/2022 – LUPC Ref. #CAB00190. 

Consent Searches – AB 93 – Bryan-D, Los Angeles 

This legislation is DOA for 2024, but could be reintroduced in the 2025-26 legislative year. The bill stalled in the Assembly public safety committee (35-22, where 41 votes were required to forward the bill.) 

This bill would have prohibited a law enforcement officer from asking for a voluntary consent search of a person, vehicle or personal effects unless the officer has reasonable suspicion to believe the search will yield evidence of a crime. The bill would have required a peace officer to inform a person of their right to refuse to consent to a search and document consent in a written form. Consent searches not following these parameters would render any evidence inadmissible in court. 

My take: Ridiculous legislation in light of U.S. Supreme Court precedent dating to 1921 approving consent searches (Amos v. United States, 255 U.S. 313). The Fourth Amendment and the Supreme Court set precedent for consent searches, not the California legislature. 

Law Enforcement Use of Canines 

There are multiple movements in this area.  

AB 742 (Jackson-D, Moreno Valley) was introduced in 2023 and would have restricted the use of police dogs to make an arrest or in situations involving search and seizure unless there is an imminent threat of death or serious bodily injury. Canines could still be used in situations involving search and rescue or detection of drugs and explosive.  

This bill was approved by the Assembly public safety committee, but it stalled on the Assembly floor for lack of support. The bill was placed in inactive status (5/31/2023). 

Rethinking his approach, Assemblyman Jackson introduced a new bill (AB 2042). This legislation would mandate POST to develop standards and training in the use of canines by law enforcement by 1/1/2026 and would require law enforcement agencies to adopt policies and mandated training for canines and handlers by 1/1/2027.  

With the support of law enforcement advocates, AB 3241 (Pacheco-D, Downey) was introduced as an alternative to AB 2042. If passed under 12525.6 G.C., this legislation would standardize canine programs across all law enforcement agencies in the state with respect to training, policy requirement, legal principles and reporting. It represents a more unified perspective without the predetermined restrictions or prohibitions in the original AB 742. Law enforcement will be the lead. 

Colorimetric Field Tests for Drugs – SB 912 – Wiener-D, San Francisco 

This bill would prohibit the use of the results of a colorimetric field drug test to establish probable cause for arrest or in the filing of a criminal complaint. The author states these tests are inaccurate and “fuel inequity in the legal system for minorities.” Some agencies have discontinued the use of these. Rather than the legislature micromanaging, science or agency policy should regulate the use of these tests. 

Geofence Search Warrants – AB 793 – Bonta-D, Oakland 

This bill would enact 1546.8 P.C., a second-year bill currently pending in the Assembly public safety committee. If passed, it would prohibit the issuance of geofence search warrants (a formal request from law enforcement to a provider to provide the location history data of every device within a defined geographic region and within a specific timeframe.) 

The ACLU argues that geofence search warrants are an invasion of privacy by capturing cellphone and social media data indiscriminately. There is also concern about a provider sharing with law enforcement sensitive reproductive health care-related data, including whether a person has visited a clinic or searched for information about abortion care. 

California law enforcement doesn’t investigate abortions. The priority with geofence search warrants is to investigate serious and organized crimes. An example was presented where in Glendale there was a commercial “group” retail theft involving 31 suspects and 10 getaway vehicles. Geofence search warrant data targeting smart phones and social media was a key element in identifying perpetrators and putting together the evidence needed for a criminal complaint. 

See Bob Phillips “Geofence Warrants” – Be Specific on Time, Location, and Scope of What You Are Seeking” – LUPC Ref.# CAC00117 (9/16/2023) and “Geofence Search Warrants” LUPC Ref.# CAB00027 (12/30/2020.) 

www.legalupdates.com will report on developments as they come about. 

Stay Safe – RH