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. others, or if the person consents to a search.

This bill would, consistent with existing case law, codify the authority of a peace officer to search an individual incident to a lawful stop under specified circumstances, including that the officer has a warrant to search the individual or has probable cause to believe that the individual is about to commit a crime, is committing a crime, or has committed a crime immediately preceding the search. The bill would require an officer to ask for and obtain consent to search the individual in all other circumstances, and would specify that an officer could 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 individuals 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.

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.

This bill would, consistent with existing case law, codify the authority of a peace officer to search an individual incident to a lawful stop under specified circumstances, including that the officer has a warrant to search the individual or has probable cause to believe that the individual is about to commit a crime, is committing a crime, or has committed a crime immediately preceding the search. The bill would require an officer to ask for and obtain consent to search the individual in all other circumstances, and would specify that an officer could request consent to search 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 individuals 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.

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.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anna Caballero, Chair

2025 - 2026 Regular Session

SB 277 (Weber Pierson) - Criminal procedure: search of persons

Bill Summary:

SB 277 authorizes peace officers to request consent to search without a warrant, 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.

Fiscal Impact:

• State and Local Law Enforcement Agencies: Costs pressures (General Fund, local funds) to state and local law enforcement agencies to record and individual’s consent to search as required by this bill. California Highway Patrol indicated no fiscal impact. However, in the aggregate there could be increased workload across all law enforcement agencies to record consent to searches. Costs would vary based on department policies and the number of consent searches. There could be additional costs pressures to state and local law enforcement agencies to the extent that they are required to make additional applications to the courts for search warrants. (See Staff Comments)
  
• Trial Courts: Cost pressures (General Fund, Trial Court Trust Fund) to the state funded trial courts to review and authorize additional application for search warrants. It is unknown how many additional search warrant applications will be filed as a result of the implementation of this bill. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to increase the amount appropriated to backfill for trial court operations.

Background:

Officers do not need to suspect any wrongdoing or have probable cause to seek a consent search, and officers can use their discretion to decide when to request a consent search.^[1] Consent must be free and voluntary, rather than a mere submission to a claim of lawful authority or the result of coercion or distress.^[2] Consent to search is broad in scope, unless limited by the person giving it or by the officers’ statements.^[3] Consent can be manifested by actions as well as by words.^[4] Consent may be withdrawn anytime before a search is completed.^[5] But, advice that consent can be refused is not required.^[6] Use of ruse by the police, or evidence to mislead is a factor to be considered, but does not make consent involuntary.^[7]

A salient critique of consent searches is that they are inherently coercive because implicit in the police officer’s questioning is a show of authority that will intimidate the average person.^[8] Many people, if not most, will always feel coerced by police requests to search. (See Strauss, Reconstructing Consent (2001) 92 J. Crim. L. & Criminology 211, 221 [arguing that consent searches are often not consensual].) Given the nature of police authority and the context of the citizen–police encounter, it is highly likely that police requests to search are often interpreted as commands to permit the search to take place. (Tiersma & Sloan, The Language of Consent in Police Encounters (2012), at p. 337.) Indeed, 98.5% of people consent to a search of either their person or property when an officer requested to perform a search during a traffic stop. (Racial and Identity Profiling Advisory Board, 2023 Annual Report at p. 71.)

Research also shows that “decision makers judging the voluntariness of consent consistently underestimate the pressure to comply with intrusive requests. This is problematic because it indicates that a key justification for suspicionless consent searches—that they are voluntary—relies on an assessment that is subject to bias.” ^[9]

Another “objection to consent searches is that the legal standard for determining the voluntariness of consent is murky and ill-defined, allowing courts to find consent voluntary in all but the most extreme cases.”^[10] Courts determine whether there was consent to a search by determining whether the officers’ belief that they had consent is “objectively reasonable under the circumstances.”^[11] Systematic studies of lower-court rulings have found that judges rarely give weight to individualized factors about the accused when deciding voluntariness. Instead, judges tend to focus on the conduct of the police, such as whether officers used a “conversational tone” and whether they drew their weapons. If there is “no threat, no command, not even an authoritative tone of voice,” judges generally infer that the defendant felt free to refuse the search.^[12]

Data indicates that there are significant racial disparities related to consent searches. For example, “local law enforcement officers are especially likely to search Black and Latino drivers during nighttime stops, but discovery rates for contraband or evidence are lower than those of white drivers.”^[13]

The California Highway Patrol (CHP) issued a moratorium on consent searches from 2001 to 2006, upon the recommendation of a team of CHP managers and a pending federal class-action case, Rodriguez v. California Highway Patrol (N.D. Cal. 2000) 89 F. Supp. 2d 1131, alleging racial discrimination. Data obtained through discovery in the case revealed that Latinos were approximately three times as likely to be searched by drug interdiction officers as Whites, and African Americans were approximately twice as likely to be searched by drug interdiction officers.^[14] In so doing, CHP became the nation’s first law enforcement agency to voluntarily agree to stop asking motorists for permission to search their vehicles. While the terms of this agreement made effective steps towards addressing racial profiling within CHP, the moratorium expired in 2006.

Proposed Law:

This bill provides that 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.

This bill provides that an officer requesting consent to conduct a search shall, before conducting the search, do all of the following in the following order:

• Advise the individual that their consent is voluntary;
• Explain to the individual the scope of the search; and,
• Receive and record the individual’s consent consistent with the requirements of state law;

This bill provides that an officer shall record the actions taken above consistent with the policies of their employing agency.

This bill requires an officer conducting a consent search of an individual pursuant to its provisions to do both of the following:

• Not exceed the scope of the search described to the individual; and,
• Discontinue the search if the individual withdraws their consent.

This bill provides that it 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 in the following order:

• Advise the individual that their consent is voluntary;
• Confirm with the individual the scope of the search;
• Record the unsolicited consent by the individual;
• Does not exceed the scope of the search described to the individual; and,
• Discontinues the search if the individual withdraws their consent.

This bill specifies that it does not prohibit a local jurisdiction from adopting requirements that are more protective of individuals than those in this bill. It requires the officer performing the search based on unsolicited consent consistent with the policies of their employing agency. An officer may request consent to conduct a search only if doing so does not violate any applicable state law, local ordinance, or agency policy.

Related Legislation:

• AB 93 (Bryan, 2023) would have prohibited law enforcement officers from conducting a warrantless search of any kind based solely on a person’s consent, and specified that consent to conduct a search was not a lawful justification for a search. AB 93 failed on the Assembly Floor.
• AB 2133 (Torrico, 2006) would have codified CHP’s consent search moratorium and established a statewide policy for all law enforcement to end consent searches. AB 2133 was never heard at the request of the author.

Recommended Amendments:

As mentioned above, this bill requires the officer to “record the unsolicited consent by the individual,” but it is unclear whether this provision seeks to require officers to record the consent on paper, for instance by having the individual sign some form acknowledging that they have offered consent, or via body-worn camera. The author may wish to clarify this provision and others that require officers to “record” consent and other actions performed by the officer.

Additionally, the scope of this bill is unclear. As drafted, the provisions of this bill could extend to routine searches of individuals who are not suspected of criminal activity. For example, this bill could require recorded consent for searches of visitors at local detention facilities and state prisons. This bill could also require recorded consent of every routine screening of individuals entering state buildings and courthouses.

-- END --

1. Florida v. Royer (1983) 460 U.S. 491, 497; see also Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227. ↑

2. Ibid. at p. 497. ↑

3. People v. Miller (1999) 69 CA.4th 190, 203. ↑

4. People v. Harrington (1970) 2 Cal.3d. 991, 995. ↑

5. People v. Hamilton (1985) 168 Ca.3d 1058, 1067. ↑

6. U.S. v. Watson (1976) 423 U.S. 411, 424. ↑

7. People v. Avalos (1996) 47 Cal.4th 1569, 1577. ↑

8. Lawrence v. United States (D.C. 1989)566 A.2d 57, 61. ↑

9. Sommers & Bons, The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance (2019) 128 Yale L. J.1962, 1965. ↑

10. Sommers & Bons, supra, at p. 1969. ↑

11. People v. Machupa (1997) 2 Cal.3d 991, 995. ↑

12. Sommers & Bons, supra, at p. 1969. ↑

13. Public Policy Institute of California, Racial Disparities in Traffic Stops, (October 2022) https://www.ppic.org/publication/racial-disparities-in-traffic-stops/. ↑

14. American Civil Liberties Union, California Highway Patrol Bans Consent Searches Following Review of Data Collection Showing Discriminatory Pattern, (April 2001); see also Los Angeles Times, CHP Settles Lawsuit Over Claims of Racial Profiling (February 23, 2003) <https://www.latimes.com/archives/la-xpm-2003-feb-28-me-search28-story.html>. ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Jesse Arreguín, Chair

2025 - 2026 Regular

Bill No: SB 277 Hearing Date: April 8, 2025

Subject: Criminal procedure: search of persons

HISTORY

Source: Alliance San Diego

Prior Legislation: AB 93 (Bryan), failed on the Assembly Floor, 2023

AB 2537 (Gipson), Ch. 332, Stats. of 2022

AB 2773 (Holden), Chapter 805, Stats. of 2022

AB 2918 (Holden), Ch. 723, Stats. of 2018

AB 2133 (Torrico), not heard in Assembly Public Safety, 2006

Support: Asian Americans and Pacific Islanders for Civic Empowerment; Asian Pacific American Labor Alliance, San Diego Chapter; California Association of Black Lawyers; California Calls; California Civil Liberties Advocacy; Communities for a New California Action Fund; Congregations Organized for Prophetic Engagement; Initiate Justice; OC Action; Pacific Juvenile Defender Center; Partnership for the Advancement of New Americans; Pillars of the Community; Rubicon Program; San Diego Black Workers Center; San Diego Immigrant Rights Consortium; San Francisco Public Defender; Smart Justice California; Universidad Popular

Opposition: Arcadia Police Officers' Association; Brea Police Association; Burbank Police Officers' Association; California Association of School Police Chiefs; California Coalition of School Safety Professionals; California Narcotic Officers' Association; California Police Chiefs Association; California Reserve Peace Officers Association; California State Sheriffs' Association; Claremont Police Officers Association; Corona Police Officers Association;
Culver City Police Officers' Association; Fullerton Police Officers' Association; Los Angeles Police Protective League; Los Angeles School Police Management Association; Los Angeles School Police Officers Association; Murrieta Police Officers' Association; Newport Beach Police Association; Orange County Sheriff's Department; Palos Verdes Police Officers Association; Placer County Deputy Sheriffs' Association; Pomona Police Officers' Association; Riverside County Sheriff's Office; Riverside Police Officers Association; Riverside Sheriffs' Association; Santa Ana Police Officers Association

PURPOSE

The purpose of this bill is to 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 has an item in their possession that is evidence of criminal activity, as specified.

Existing law provides that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized. (U.S. Const., amend. IV.; Cal. Const., art I, § 13.)

Existing law provides that relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post-conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, subject to the existing statutory role of evidence relating to privilege or hearsay, or inadmissibility. (Cal. Const., art. I, § 28.)

Existing law requires each state and local agency that employs peace officers to annually report to the Attorney General data on all stops conducted by that agency’s peace officers for the preceding calendar year. (Gov. Code, § 12525.5(a)(1).)

Existing law defines “stop,” for the purposes of reports sent by law enforcement agencies to the Attorney General, as ‘any detention by a peace officer of a person, or any peace officer interaction with a person in which the peace officer conducts a search, including a consensual search, of the person’s body or property in the person’s possession or control.’ (Gov. Code, § 12525.5(g)(2).)

Existing law sets forth the circumstances for which a search warrant may be issued. (Pen. Code, §§ 1523-1542.)

Existing law provides that a defendant may move for the return of property or to suppress evidence obtained as a result of a search or seizure if, among other reasons, the search without a warrant was unreasonable. (Pen. Code, § 1538.5, subd. (a).)

Existing law finds and declares that pedestrians, users of public transportation, and vehicular occupants who have been stopped, searched, interrogated, and subjected to a property seizure by a peace officer for no reason other than the color of their skin, national origin, religion, gender identity or expression, housing status, sexual orientation, or mental or physical disability are the victims of discriminatory practices (Pen. Code § 13519.4(d)(4).)

Existing law creates the Racial and Identity Profiling Advisory Board (RIPA), which, among other duties, is required to conduct and consult available, evidence-based research on intentional and implicit biases, and law enforcement stop, search, and seizure tactics. (Pen. Code, § 13519.4(j)(3)(D).)

Existing law prohibits a peace officer from engaging in racial or identity profiling, as defined. (Pen. Code, § 13519.4(e),(f).)

Existing law provides that a peace officer making a traffic or pedestrian stop, before engaging in questioning related to a criminal investigation or traffic violation, shall state the reason for the stop, and shall document the reason for the stop on any citation or police report resulting from the stop. (Veh. Code, § 2806.5(a).)

Existing law provides that the above requirement does not apply when the officer reasonably believes that withholding the reason for the stop is necessary to protect life or property from imminent threat, including, but not limited to, cases of terrorism or kidnaping. (Veh. Code, § 2806.5(a).)

This bill provides that 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.

This bill provides that an officer requesting consent to conduct a search shall, before conducting the search, do all of the following in the following order:

• Advise the individual that their consent is voluntary.
• Explain to the individual the scope of the search.
• Receive and record the individual’s consent consistent with the requirements of state law.

This bill provides that an officer shall record the actions taken above consistent with the policies of their employing agency.

This bill requires an officer conducting a consent search of an individual pursuant to its provisions to do both of the following:

• Not exceed the scope of the search described to the individual.
• Discontinue the search if the individual withdraws their consent.

This bill provides that it 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 in the following order:

• Advises the individual that their consent is voluntary.
• Confirms with the individual the scope of the search.
• Records the unsolicited consent by the individual.
• Does not exceed the scope of the search described to the individual.
• Discontinues the search if the individual withdraws their consent.

This bill requires the officer performing the search based on unsolicited consent consistent with the policies of their employing agency.

This bill provides that an officer may request consent to conduct a search pursuant to its provisions only if doing so does not violate any applicable state law, local ordinance, or agency policy.

This bill specifies that it does not prohibit a local jurisdiction from adopting requirements that are more protective of individuals than those described therein.

COMMENTS

1. Need for This Bill

According to the Author:

I as well as many others are acutely aware of how racial biases permeate the systems that govern our lives, including law enforcement. These biases continually disproportionately impact Black and Latino Californians, particularly when it comes to consent searches. The reality is that consent searches often place individuals in a difficult position, where they feel pressured into agreeing to a search due to the authority and power dynamics between law enforcement officers and those being stopped. This dynamic raises concerns about the fairness and voluntariness of these searches, especially given the systemic racial disparities that exist within our policing practices. We cannot ignore the fact that these biases contribute to a climate of fear, anxiety, and distrust in our communities, and ultimately undermine public health and well-being.

Public trust and public health are deeply interconnected. When communities do not feel safe or respected by the very institutions meant to protect them, their mental and physical health suffers. The long-term impacts of this mistrust are felt in reduced community engagement, poor mental health outcomes, and a weakened sense of safety. This is why it is crucial that we implement policies that foster transparency, fairness, and accountability.

SB 277 is a critical step toward restoring public trust by regulating consent searches to ensure they are voluntary, informed, and properly documented. By limiting the circumstances under which these searches can occur, we are not only protecting constitutional rights, but we are also building a foundation for stronger, healthier communities where people feel secure in their interactions with law enforcement.

1. Fourth Amendment Search Warrant Requirement and Warrantless Consent Searches

The Fourth Amendment of the U.S. Constitution and Article I, Section 13 of the California Constitution provide safeguards against unreasonable search and seizures. Generally, a “search” is a governmental intrusion upon, or invasion of a person’s security in an area in which they have

a reasonable expectation of privacy.^[1] These constitutional provisions both generally require the police to secure a warrant before conducting a search, and specify that the warrant must be issued “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched.” Existing California law defines a “search warrant” as an order, in writing, signed by a magistrate, commanding a peace officer to search for personal property and bring it before a magistrate. Existing law outlines the statutory grounds for issuance of search warrants and mandates that they be supported by probable cause. The standard for probable cause to issue a search warrant is “whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”^[2]

The general requirement that law enforcement obtain a warrant prior to conducting a search is subject to several exceptions, including vehicle searches, searches incident to a valid arrest, certain searches in instances where exigent circumstances exist, searches of probationers and parolees, “plain view” searches, and consent searches, which this bill addresses.

Like other constitutional rights, the Fourth Amendment’s protection against unreasonable searches and seizures may be waived, and individuals are free to consent to a search of their person or premises. Moreover, officers do not need to suspect any wrongdoing or have probable cause to seek consent to search, and officers can use their discretion to decide when to request a consent search.^[3] Consent to search – which can be manifested in actions as well as by words – is broad in scope, unless limited by the person giving it or by the officers’ statements, and consent must be freely and voluntarily given, rather than a mere submission to a claim of lawful authority or the result of coercion or distress.^[4] Whether a particular consent is voluntary depends on the totality of the circumstances; while no single factor of dispositive of this inquiry, use of a ruse by the police or other deception may be considered in the voluntariness determination, but does not make consent involuntary.^[5] Critically, consent may be withdrawn at any time before a search is completed, but advice by the officer conducting the search that consent can be refused or withdrawn is not required.^[6]

1. Debate Regarding Consent Searches

While the constitutionality of consent searches is well-established, a debate has emerged regarding the true voluntariness of such searches, the impact of consent searches on vulnerable populations, and, more generally, balancing the need for effective law enforcement investigations with the Fourth Amendment’s protections. In Schneckloth v. Bustamonte, supra, 412 U.S. at 225, the landmark United States Supreme Court case regarding consent searches, the Court succinctly summarized the competing interests at play in understanding the true meaning of “voluntariness”:

At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws. Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. At the other end of the spectrum is the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice.

The Court’s decision in Schneckloth describes some of the investigatory benefits of consent searches. For instance, the Court dubs consent searches “part of the standard investigatory techniques of law enforcement,” and reason that “in situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.”^[7] Moreover, consent searches enable the police to investigate where the "stigma and embarrassment" of arrest or a "far more extensive search pursuant to a warrant" may be avoided.^[8]

Conversely, critics of consent searches focus on the inherently coercive nature of consent and the disproportionate impact of these searches on poorer communities and communities of color. For decades, the notion that consent to police searches can never be truly voluntary has been present in scholarly research and Fourth Amendment jurisprudence alike. Quoting an even older treatise, the District of Columbia Court of Appeals put it thusly:

 If the concept of "freedom to walk away" is taken to mean that a pedestrian whose movements have been interrupted and who is questioned is likely to feel free to depart without responding, it is a highly questionable conclusion. Implicit in the introduction of the [officer] and the initial questioning is a show of authority to which the average person encountered will feel obliged to stop and respond. Few will feel that they can walk away or refuse to answer.^[9]

Given the nature of police authority and the context of the citizen–police encounter, it is highly likely that police requests to search will be interpreted as commands to permit the search to take place. In fact, research shows that “decision makers judging the voluntariness of consent consistently underestimate the pressure to comply with intrusive requests. This is problematic because it indicates that a key justification for suspicionless consent searches—that they are voluntary—relies on an assessment that is subject to bias.”^[10]

In 2015, the Legislature passed AB 953 (Weber, Ch. 466, Stats. of 2015), also known as the Racial and Identity Profiling Act (RIPA) of 2015, which expressly prohibited racial and identity profiling by law enforcement and requires law enforcement agencies to report vehicle stop data to the Department of Justice (DOJ). A 2022 analysis conducted by the Public Policy Institute of California of RIPA stop data collected in 2019 suggests significant racial disparities related to consent searches. For instance, “local law enforcement officers are especially likely to search Black and Latino drivers during nighttime stops, but discovery rates for contraband or evidence during consent-only searches are lower than those of white drivers.”^[11] Further, the RIPA data collected between 2019-2021 show that individuals perceived to be black or multiracial were asked for consent to search at a higher rate than those who were perceived to be white.^[12]

1. Recommendations by the Committee on the Revision of the Penal Code

The Committee on Revision of the Penal Code (CRPC) was established by the Legislature and the Governor to study all aspects of criminal law and procedure and make recommendations that would simplify and rationalize the law. In its 2022 Annual Report, the CRPC recommends, among other things, limiting consent searches during traffic stops, relying heavily on RIPA data demonstrating the racial disparity and low-yield rate for contraband during consent-only searches. Specifically, the CRPC recommends allowing “police officers to request permission to search during traffic stops only when the officer has reasonable suspicion to believe the search will uncover evidence of a crime.” Further, the CRPC suggests that “the reasonable suspicion threshold should be extended to consent searches, so that consent-based searches are only undertaken when there is some articulable level of suspicion, as opposed to a potentially-biased hunch.”^[13] This bill effectively codifies the CRPC recommendation, requiring the existence of reasonable suspicion before an officer may request consent to search an individual.

1. Effect of this Bill and Policy Considerations

It is well-established that the federal Constitution only sets the minimum level of protection afforded to people in the United States, and state constitutions may provide far more protection, including against unreasonable searches and seizures.^[14] This bill seeks to do just that by creating a standard that law enforcement officers must meet before requesting consent to search an individual and setting forth a process they must follow when conducting such a search. Specifically, the bill provides that 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.^[15]

Additionally, the bill requires officers requesting consent to conduct a search to follow a specified process prior to the search, including providing an advisement that consent is voluntary, explaining the scope of the search, and receiving and recording the individuals consent as required consistent with state law. During a search, the bill mandates that officers remain within the scope of the search they explained prior to commencing it and discontinue the search if consent is withdrawn. The bill also allows officers to conduct a search based on unsolicited consent if they follow a process similar to the one described above.

The provisions of this bill raise various policy issues that the Author and Committee may wish to consider.

Prop 8 and Remedy for Violations

The exclusionary rule prevents the government from using evidence in court that was gathered in violation of the United States Constitution, and applies to evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment.^[16] Existing California law provides that evidence obtained in violation of the California Constitution or the United States Constitution must be suppressed and may not be used against the person whose rights were violated.^[17]

In 1982, the California voters passed Proposition 8, which enacted article I, section 28 of the California Constitution and provides, in part, that “relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post-conviction motions and hearings.”^[18] The “Truth-in-Evidence” provision of Proposition 8 “was intended to permit exclusion of relevant, but unlawfully obtained evidence, only if exclusion is required by the United States Constitution.”^[19] Thus, Prop 8 federalized California’s search and seizure law, effectively providing that a trial court may exclude evidence under existing California statutes regarding exclusion only if exclusion is mandated by the federal Constitution.

This bill provides that a law enforcement officer may request consent to search an individual, their property or their effects only if specified conditions are met. However, a violation of the bill’s provisions (i.e. the failure by an officer to strictly adhere to the process for requesting consent that the bill sets forth) would not necessarily rise to the level of a Fourth Amendment violation.^[20] Accordingly, a violation of this bill’s provisions will not necessarily result in the suppression of evidence obtained during a consent search, and evidence obtained in violation of the bill could still be introduced during a criminal trial against the individual who was searched. However, the fact that a violation occurred could potentially be used in other contexts, such as civil rights actions, disciplinary actions and internal affairs investigations, and other civil or administrative actions against law enforcement officers.

Recording Requirements

As mentioned above, the bill allows officers to conduct a search based on unsolicited consent, but only if they adhere to a specified process. This process includes advising the individual that consent is voluntary, confirming the scope of the search and remaining within that scope, and discontinuing the search if consent is withdrawn. The bill also requires the officer to “record the unsolicited consent by the individual,” but it is unclear whether this provision seeks to require officers to record the consent on paper, for instance by having the individual sign some form acknowledging that they have offered consent, or via body-worn camera. If the latter, such a requirement would be highly impractical, as the nature of unsolicited consent (or anything unsolicited, for that matter) is that it is received without warning or request. If the former, the Author and Committee may wish to clarify this provision and others that require officers to “record” consent and other actions performed by the officer.

1. Prior Legislation

In 2023, Assemblymember Isaac Bryan introduced AB 93, which would have prohibited law enforcement officers from conducting a warrantless search of any kind based solely on a person’s consent, and specified that consent to conduct a search was not a lawful justification for a search. AB 93 failed on the Assembly Floor.

1. Argument in Support

According to Smart Justice California:

Consent-based searches, where officers rely solely on an individual’s consent to search without other legal justification, are problematic. They place people at the mercy of officer discretion and bias, and undermine constitutional protections.
Research and testimonies referenced in the Racial and Identity Profiling Advisory (RIPA) board reports suggests that consent may not always be given voluntarily, as there is a power imbalance between the officer and the individual being stopped. Nearly 99% of Californians agree to searches, but those who do not consent are often subjected to longer stops.

SB 277 aligns with the recommendations put forth by the RIPA Board and the Committee on Revision of the Penal Code to restrict consent-based searches. The bill is intended to reduce bias, safeguard civil liberties, and promote fairness, particularly among marginalized communities who have been disproportionately affected by these practices.

1. Argument in Opposition

According to the California State Sheriff’s Association:

A robust body of case law at both the state and federal levels has not only confirmed the lawful use of consent searches but also set guidelines as to how those searches may occur and the standards by which consent is sought and obtained. Furthermore, the use of consent searches is an important tool in proactive policing and the limiting of such will negatively impact public safety. Illegal firearms and other contraband that would otherwise go undiscovered are routinely found during consent searches. Given the recent rise in violent crime, restricting tools proven to get guns off our streets is untimely. We should not unduly restrict a beneficial law enforcement tool that helps uncover illegal activity but also provides a person with a method to demonstrate they are not violating the law. The bottom line is that, unless other conditions exist, a person is generally free to withhold or withdraw consent to a search. SB 277 goes too far in attempting to address a perceived problem and will make our communities less safe.

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1. People v. Mayberry (1982) 13 Cal.3d 35, 341. ↑

2. Pen. Code, §§ 1523-1524; Illinois v. Gates (1983) 462 U.S. 213, 238. ↑

3. Florida v. Royer (1983) 460 U.S. 491, 497; see also Schneckloth v. Bustamonte, supra, 412 U.S. 218, 227. ↑

4. People v. Harrington (1970) 2 Cal.3d. 991, 995; People v. Miller (1999) 69 CA.4th 190, 203; Florida v. Royer, supra, 460 U.S. at p. 497. ↑

5. Schneckloth, supra, 412 U.S. at 218, 228. People v. Avalos (1996) 47 Cal.4th 1569, 1577. ↑

6. People v. Hamilton (1985) 168 Ca.3d 1058, 1067; U.S. v. Watson (1976) 423 U.S. 411, 424. ↑

7. Schneckloth, supra, at 231. ↑

8. Id. at 228; United States v. Rothman (1973) 492 F.2d 1260, 1264. ↑

9. Lawrence v. United States (1989) 566 A.2d 57, 61. ↑

10. Nadler, Janice and Trout, J.D., "The Language of Consent in Police Encounters" (2009). Faculty Working Papers. Paper 191. The Language of Consent in Police Encounters; Sommers, Roseanna and Bohns, Vanessa. “The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance.” Yale Law Journal. Volume 128, Number 7. May 2019. Microsoft Word - Sommers & Bohns.docx ↑

11. Lofstrom, Magnus et. al. “Racial Disparities in Law Enforcement Stops.” Public Policy Institute of California. Published October 2022. https://www.ppic.org/publication/racial-disparities-in-traffic-stops/ ↑

12. “Racial and Identity Profiling Advisory Board Annual Report 2025.” 1 January 2025, at p. 106. 2025 - RIPA Board - Annual Report - AB 953 - Racial and Identity and Profiling Advisory Board; It should be noted that a significant fraction (between 5-15%, depending on the race/ethnicity of the person stopped) of stops are based on calls for service and are not officer-initiated. For a breakdown, see the 2024 RIPA Report, p.32. 2024 - RIPA Board - Annual Report - AB 953 - Racial and Identity and Profiling Advisory Board ↑

13. Committee on the Revision of the Penal Code, 2022 Annual Report and Recommendations at pp. 36-38 <http://www.clrc.ca‌‌.gov/‌CRPC/Pub/Reports/CRPC_AR2022.pdf ↑

14. See Mills v. Rogers (1982) 457 U.S. 291, 299. ↑

15. The reasonable suspicion standard is less stringent than probable cause, but requires more than an inchoate and unparticularized suspicion or hunch; it must be based on specific and articulable facts, taken together with rational inferences from those facts; Terry v. Ohio (1968) 329 US. 1, 27. ↑

16. Mapp v. Ohio (1961) 367 U.S. 643. ↑

17. Pen. Code, §1538.5 ↑

18. Cal. Const., art. I, § 28, subd. (f); People v. Lazlo (2012) 206 Cal.App.4th 1063, 1069. ↑

19. In re Lance W. (1985) 37 Cal.3d 873, 890. ↑

20. People v. McKay (2002) 27 Cal.4th 601, 605 [the violation of a state statute, standing alone, does not form the basis for suppression under the Fourth Amendment.] ↑