Criminal procedure: search of persons., the official text

An act to add Section 833.6 to the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL'S DIGEST

Existing provisions of the United States and California Constitutions ensure the right of the people to be secure in their persons, houses, papers, and effects against warrantless seizures and searches. Case law establishes exceptions to this right, including allowing a peace officer to conduct a limited search of a person for firearms or weapons if the peace officer reasonably concludes that the person detained may be armed and presently dangerous to the peace officer or others, or if the person consents to a search.
This bill would authorize a peace officer to request consent to search an individual, their property, or their effects only if the officer is investigating a crime and has reasonable suspicion that the individual to be searched has an item in their possession that is evidence of criminal activity. The bill would require the officer to follow a specified procedure in a specified order, including advising the individual that their consent is voluntary, explaining to the individual the scope of the search, and recording the individual’s consent. The bill would prohibit an officer from exceeding the scope of the search explained to the individual and would require the officer to discontinue the search if the individual withdraws their consent. The bill would authorize searches based on unsolicited consent if the officer follows specified procedures. The bill would require an officer to record the required actions they performed before and during a consensual search consistent with the policies of their employing agency.
Because the bill would impose requirements on local law enforcement, the 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.

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

SECTION 1.
Section 833.6 is added to the Penal Code, to read:
833.6.
(a) A peace officer may request consent to search an individual, their property, or their effects only if the officer is investigating a crime and has reasonable suspicion that the individual has an item in their possession that is evidence of criminal activity.
(b) (1) An officer requesting consent to conduct a search pursuant to subdivision (a) shall, before conducting the search, do all of the following in the following order:
(A) Advise the individual that their consent is voluntary.
(B) Explain to the individual the scope of the search.
(C) Receive and record the individual’s consent consistent with the requirements of state law.
(2) An officer shall record the actions they performed pursuant to paragraph (1) consistent with the policies of their employing agency.
(c) An officer conducting a search pursuant to subdivision (b) shall do both of the following:
(1) Not exceed the scope of the search described in subparagraph (B) of paragraph (1) of subdivision (b).
(2) Discontinue the search if the individual withdraws their consent.
(d) (1) This section does not prevent an officer from conducting a search based on an individual’s unsolicited consent provided that the officer does all of the following:
(A) Advises the individual that their consent is voluntary.
(B) Confirms with the individual the scope of the search.
(C) Records the unsolicited consent by the individual.
(D) Does not exceed the scope of the search described in subparagraph (B).
(E) Discontinues the search if the individual withdraws their consent.
(2) An officer shall record the actions they performed pursuant to paragraph (1) consistent with the policies of their employing agency.
(e) An officer may request consent to conduct a search pursuant to this section only if doing so does not violate any applicable state law, local ordinance, or agency policy.
(f) This section does not prohibit a local jurisdiction from adopting requirements that are more protective of individuals than those described in this section.

SEC. 2.
If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.