Existing law describes search warrants and enumerates the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized constitute evidence showing that a felony has been committed. Existing law authorizes a peace officer to conduct a search without a warrant if they have the voluntary consent of the person.

Existing law describes search warrants and enumerates the grounds upon which a search warrant may be issued, including, among other grounds, when the property or things to be seized constitute evidence showing that a felony has been committed. Existing law authorizes a peace officer to conduct a search without a warrant if they have the voluntary consent of the person.

This bill would state the intent of the Legislature to enact legislation to prohibit officers from requesting consent to conduct a search if the officer does not suspect criminal activity.

ASSEMBLY THIRD READING

ATR Bill Id:AB 93

Author:(Bryan)

As Amended Ver:February 23, 2023

Majority vote

SUMMARY

Prohibits consent searches by peace officers, as specified.

Major Provisions

1. States that the consent of a person given to a peace officer to conduct a search shall not constitute lawful justification for a search.
2. Provides that a warrantless consent search is a violation of that person's rights.
3. Prohibits a peace officer from seeking consent to conduct a warrantless search of a vehicle, person, or their effects.
4. Prohibits a law enforcement agency from authorizing a peace officer to conduct a consent search.
5. Provides that these provisions shall not be construed to limit the authority of a peace officer to conduct a search based on probable cause, a valid warrant, or another legal basis that is not consent.
6. States Legislative findings and declarations.
7. States Legislative intent to protect against police searched based on purported consent rather than on an evidentiary basis.

COMMENTS

According to the Author

"AB 93 will prohibit police officers from asking for consent to search a person or their vehicle without an evidence-based legal justification. Consent searches are inherently vulnerable to bias because they are not based on objective criteria, and police have full discretion to choose when and from whom to seek such a search.

"RIPA data reveals that Black individuals were four times as likely and Latino individuals were 2.4 times as likely to be asked for a consent search during a traffic stop than White individuals. During stops where officers perform consent searches, officers are least likely to find contraband in the possession of those who are Black. Despite this, a far higher percentage of stops of Black individuals involve consent searches compared to any other group. Essentially, people of color, particularly Black individuals, are being unjustly asked to waive their fourth amendment rights by officers holding lethal weapons under the guise of being voluntary.

"Limiting consent searches will help stop unjustifiable police interactions that lead to more intrusive and at worst lethal encounters with communities of color."

Arguments in Support

According to Initiate Justice, "These searches are invasive and traumatizing, and amount to fishing expeditions that are significantly influenced by officers' biases.

"Indeed, research shows that people of color are significantly more likely to be asked to submit to a search than people who are white. Statewide, Black people are four times as likely, Latine people 2.4 times as likely, and multiracial people 2.2 times as likely to be asked for consent to search during a traffic stop than white people. In Los Angeles, seven out of every 10 bicyclists searched by the Sheriff's Department was Latine. In San Francisco, Black motorists were eight times more likely than white drivers to be subjected to a consent search after a traffic stop, and Latine drivers were searched at almost four times the rate of white drivers. Yet research consistently shows that searches of Black and Latine people are significantly less likely to uncover contraband than are searches of people who are white."

Arguments in Opposition

According to San Diego Deputy District Attorneys Association (SDDDAA), "Our federal and state Constitutions and well-established case law provide very clear boundaries for what constitutes a valid consent search under the law. When an individual gives their consent to search their vehicle, their person, or their property, courts have bright line parameters provided in case law that require the scrutinization of the voluntariness and scope of consent. […] This extreme bill of throwing out all consensual searches takes away another valuable and lawful tool for law enforcement, while also removing choice from individuals in a free society to decide when they want to aid police, solve a crime, or ensure an innocent person is exonerated. …

"The Committee on Revision of the Penal Code is concerned about two areas as it relates to consent searches: (1) police asking for consent more often from people of color and (2) lower rates of discovering evidence of a crime from consent searches. […] It should be noted that this bill goes even further than the recommendations from the Committee on Revision of the Penal Code, which suggests consent searches when there is reasonable suspicion. This bill bans any person from freely choosing to allow the police to search a vehicle, their person or their effects/property. Put simply, this bill strips law enforcement of legally valid tools, strips individuals of free will to consent, and does nothing to keep the public safer in communities held hostage by violence."

FISCAL COMMENTS

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

VOTES

ASM PUBLIC SAFETY: 6-1-1

YES: Jones-Sawyer, Bonta, Bryan, Ortega, Santiago, Zbur

NO: Alanis

ABS, ABST OR NV: Lackey

UPDATED

VERSION: February 23, 2023

CONSULTANT: Liah Burnley / PUB. S. / (916) 319-3744 FN: 0000017

Date of Hearing: March 7, 2023

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Prohibits consent searches by peace officers, as specified. Specifically, this bill:

1. States that the consent of a person given to a peace officer to conduct a search shall not constitute lawful justification for a search.
   
2. Provides that a warrantless consent search is a violation of that person’s rights.
3. Prohibits a peace officer from seeking consent to conduct a warrantless search of a vehicle, person, or their effects.
4. Prohibits a law enforcement agency from authorizing a peace officer to conduct a consent search.
5. Provides that these provisions shall not be construed to limit the authority of a peace officer to conduct a search based on probable cause, a valid warrant, or another legal basis that is not consent.
6. States Legislative findings and declarations.
   
7. States Legislative intent to protect against police searched based on purported consent rather than on an evidentiary basis
   

EXISTING FEDERAL LAW: Provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (U.S. Const., 4th Amend.)

EXISTING STATE LAW:

1. 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. (Cal. Const., art I, § 13.)
   
2. Sets forth the circumstances for which a search warrant may be issued. (Pen. Code, §§ 1523-1542.)
   
3. 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).)
   
4. 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.)
   
5. Requires a peace officer making a traffic or pedestrian stop to state the reason for the stop before engaging in questioning related to a criminal investigation or a traffic violation.. (Veh. Code, § 2806.5.)
   
6. Requires DMV to include within the Driver’s Handbook a section on a person’s civil rights during a traffic stop, including the limitations on a peace officer’s authority during a traffic stop and the legal rights of drivers and passengers. (Veh. Code, § 1656.3, subd. (a)(4).)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “AB 93 will prohibit police officers from asking for consent to search a person or their vehicle without an evidence-based legal justification. Consent searches are inherently vulnerable to bias because they are not based on objective criteria, and police have full discretion to choose when and from whom to seek such a search.

“RIPA data reveals that Black individuals were 4 times as likely and Latino individuals were 2.4 times as likely to be asked for a consent search during a traffic stop than White individuals. During stops where officers perform consent searches, officers are least likely to find contraband in the possession of those who are Black. Despite this, a far higher percentage of stops of Black individuals involve consent searches compared to any other group. Essentially, people of color, particularly Black individuals, are being unjustly asked to waive their 4th amendment rights by officers holding lethal weapons under the guise of being voluntary.

“Limiting consent searches will help stop unjustifiable police interactions that lead to more intrusive and at worst lethal encounters with communities of color.”

1. Search Warrant Requirement: 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. (People v. Mayberry (1982) 13 Cal.3d 35, 341.) 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.”

Penal Code section 1523 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. Section 1524 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.” (Illinois v. Gates (1983) 462 U.S. 213, 238.)

The search warrant requirement is subject to some exceptions, such as warrantless vehicle searches, searches to preserve life or property, searches of probationers and parolees, temporary searches incident to detention and arrests, and school searches. Consent searches are also an exception to the warrant requirement of the Fourth Amendment.

1. Parameters of Warrantless Consent Searches: 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. (Florida v. Royer (1983) 460 U.S. 491, 497; see also Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227.) Consent to search is broad in scope, unless limited by the person giving it or by the officers’ statements. (People v. Miller (1999) 69 CA.4th 190, 203.) Consent must be free and voluntary, rather than a mere submission to a claim of lawful authority or the result of coercion or distress. (Florida v. Royer, supra, 460 U.S. at p. 497.) Consent can be manifested by actions as well as by words. (People v. Harrington (1970) 2 Cal.3d. 991, 995.) Consent may be withdrawn anytime before a search is completed. (People v. Hamilton (1985) 168 Ca.3d 1058, 1067.) But, advice that consent can be refused is not required. (U.S. v. Watson (1976) 423 U.S. 411, 424.) Use of ruse by the police, or evidence to mislead is a factor to be considered, but does not make consent involuntary. (People v. Avalos (1996) 47 Cal.4th 1569, 1577.)
2. The Exclusionary Rule and Proposition 8: The exclusionary rule requires suppression of evidence seized during an unreasonable search or seizure in violation of the Fourth Amendment. (U.S. Const., amend. IV, XIV; Wong Sun v. United States (1963) 371 U.S. 471, 484-487.) Penal Code section 1538.5 requires courts to suppress evidence that was obtained in a way that violates the California Constitution or the U.S. Constitution.

In 1982, the California voters passed Proposition 8. Proposition 8 enacted article I, section 28 of the California Constitution, which provides in relevant part: “Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings.” (Cal. Const., art. I, § 28, subd. (f); People v. Lazlo (2012) 206 Cal.App.4th 1063, 1069.) The “Truth-in-Evidence” provision of Section 28 “was intended to permit exclusion of relevant, but unlawfully obtained evidence, only if exclusion is required by the United States Constitution.” (In re Lance W. (1985) 37 Cal.3d 873, 890 (Lance W.).) Thus, Section 28 federalized California’s search and seizure law. A trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution. (Lance W., supra, 37 Cal.3d at p. 896.)

This bill would provide that a warrantless search conducted solely on the basis of a person’s consent is a violation of that person’s rights. However, such a violation would not necessarily rise to the level of a Fourth Amendment violation. (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.) Accordingly, this bill would not require a two-thirds vote pursuant to Proposition 8, and will not necessarily result in exclusion of evidence found during a consent search as a remedy. If this bill is enacted, evidence obtained by an officer pursuant to a consent search could generally still be introduced at trial. However, the prohibition could potentially be used in other contexts, such as civil rights actions, disciplinary and internal affairs investigations, and other civil or administrative actions.

1. Coercive Nature of Voluntary Consent: 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. (Lawrence v. United States (D.C. 1989)566 A.2d 57, 61.) 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 <https://oag.ca.gov/system/files/media/ripa-board-report-2023.pdf> [as of Feb. 28, 2023].)
   
   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.” (Sommers & Bons, The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance (2019) 128 Yale L. J.1962, 1965.)

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.” (Sommers & Bons, supra, at p. 1969.) 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.” (People v. Machupa (1997) 2 Cal.3d 991, 995.) 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. (Sommers & Bons, supra, at p. 1969.)

1. Racial Disparities in Consent Searches: 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.” (Public Policy Institute of California, Racial Disparities in Traffic Stops, (October 2022) <https://www.ppic.org/publication/racial-disparities-in-traffic-stops/> [as of Feb. 28, 2023].)
   
   In San Francisco, Black drivers are eight times more likely than white drivers to be subjected to a consent search after a traffic stop, and Latino drivers are searched at almost four times the rate of white drivers. (San Francisco Chronicle, Racial Disparities in SF Traffic Searches Raise Concerns of Bias (April 8, 2018) <https://www.sfchronicle.com/crime/article/Racial-disparities-in-SF-traffic-searches-raise-7235690.php> [as of Feb. 23, 2023].)
   
   At the request of the Los Angeles Police Commission, the Office of the Inspector General (OIG) reviewed vehicle, pedestrian, and bicycle stops conducted by the Los Angeles Police Department (LAPD) in 2019. For stops based on traffic violations, the rate of consent-only searches was seven times higher for Black men than White men, and five times higher for Hispanic men than White men. In examining these searches the OIG found: “Racial differences persisted even for searches considered to be more discretionary, such as consensual searches or searches based on generalized officer safety concerns. Searches of Black and Hispanic people, including higher-discretion searches, were generally less likely to be associated with the recovery of contraband or other evidence than were searches of White people. With respect to serious contraband such as a firearm, the recovery rates were relatively low – around two percent—and varied only slightly by race, with searches of Black and Hispanic people being slightly more likely to be associated with the recovery of a firearm than searches of other groups.” The OIG also found “Instances in which a Black or Hispanic person was searched were also less likely to result in an arrest than were instances in which a White person was searched.”(Los Angeles Police Commission, Review of Stops Conducted by the Los Angeles Police Department in 2019 (October 27, 2020) at p. 4 <https://www.oig.lacity.org/_files/ugd/b2dd23_d3e88738022547acb55f3ad9dd7a1dcb.pdf> [as of Feb. 23, 2023].)
   
2. Recommendations by the Committee on Revision of the Penal Code: The Committee on Revision of the Penal Code 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 Committee recommends, among other things, to limit consent searches during traffic stops. (Committee on the Revision of the Penal Code, 2022 Annual Report and Recommendations at p. 3 <http://www.clrc.ca‌‌.gov/‌CRPC/Pub/Reports/CRPC_AR2022.pdf > [as of Feb. 28, 2023].)
   
   Specifically, the Committee 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.” (Id., at pp. 36-38.) “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.” (Ibid.)
   
   This bill goes beyond the recommendation of the Committee on the Revision of the Penal Code in that it prohibits consent searches altogether.
   
3. Recommendations by the Racial Identity and Profiling Advisory Board: The Racial and Identity Profiling Advisory Board’s annual reports examine a wide range of issues related to racial and identity profiling in policing. The Board’s 2023 Annual Report analyzes the stop data from January 1, 2021 to December 31, 2021, collected and reported by 58 law enforcement agencies in California, including data and research on pretextual stops and consent searches. In its report, the Board calls on the Legislature, law enforcement agencies, and local district attorneys to “prohibit certain searches, such as consent searches or supervision searches, during traffic stops and instead requiring probable cause for any search.” The Board’s report also recommends, “Policies should prohibit specific types of enforcement actions traditionally allowed in the absence of probable cause or reasonable suspicion.” (Racial and Identity Profiling Advisory Board, 2023 Annual Report at pp. 7, 13-14 <https://oag.ca.gov/system/files/media/ripa-board-report-2023.pdf> [as of Feb. 28, 2023].)
   
   Again, this bill goes beyond the recommendations of the Board in that it prohibits consent searches altogether.
   
4. Rodriguez v. California Highway Patrol: 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. (American Civil Liberties Union, California Highway Patrol Bans Consent Searches Following Review of Data Collection Showing Discriminatory Pattern, (April 2001) <https://www.aclu.org/press-releases/california-highway-patrol-bans-consent-searches-following-review-data-collection> [as of Feb. 27, 2023]; 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> [as of Feb. 27, 2023].) 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. AB 2133 (Torrico), was introduced in 2006 to codify the moratorium and establish a statewide policy for all law enforcement to end consent searches. However, AB 2133 was never heard at the request of the author. (Asm. Comm. on Public Safety, Analysis of AB 2133 (2005-2006 Reg. Sess.) as amended April 6, 2006, p. 11.)
   
5. Limitations on Consent Searches in Other States: In 2002, the New Jersey Supreme Court held that in order for a consent to search a motor vehicle, law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent. (State v. Carty (2002)170 N.J. 632.)
   
   In 2003, the Minnesota Supreme Court also held that in the absence of reasonable, articulable suspicion a consent-based search obtained by exploitation of a routine traffic stop that exceeds the scope of the stop’s underlying justification is invalid. (State v. Fort (2003) 660 N.W.2d 415, 416.)
   
   The Austin Police Department in Texas revised its consent search policy in 2012 to require that officers only request consent to search when they have an articulable reason to believe the search is necessary and likely to produce evidence related to an investigation. A driver must give permission for a search in writing before a consent search can be initiated. (City of Austin Police Department, 2018 Annual Racial Profiling Report (February 2019) at p. 3 <https://www.austintexas.gov/sites/default/files/files/Police/2013_racial_profiling_report_022414.pdf> [as of Feb. 27, 2023].)
   

Rhode Island passed legislation in 2017 that limits consent searches by a law enforcement officer unless there is reasonable suspicion or probable cause of criminal activity. (RI Gen. L. § 31-21.2-5 (2017).)

Connecticut passed legislation in 2020 that prohibits police officers from asking for consent to search a vehicle during a traffic stop and prohibits consent searches in limited situations, including searches of a person that are not supported by probable cause. (Conn. H.R. No. 6004, July Special Session, Public Act No. 20-1 at p. 37.)

1. Policy Considerations: This bill outright prohibits officers from seeking consent to search a vehicle, person, or their effects without a warrant and provides that a warrantless consent search is a violation of that person’s rights.
   
   This prohibition runs contrary to a long line of cases upholding consent as an exception to the warrant requirement of the federal and state constitutions. It is well settled by the U.S. Supreme Court that one of the specifically established exceptions is a search that is conducted pursuant to consent. (Vale v. Louisiana (1970) 399 U.S. 30, [a search authorized by consent is wholly valid]; see also Davis v. United States (1946) 328 U.S. 582; Zap v. United States (1946) 328 U. S. 630.)

In Schneckloth v. Bustamonte (1973) 412 U.S. 218, the U.S. Supreme Court described the utility of consent searches. “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.” (Id. at p. 225.)

Accordingly, some opponents of the bill have opposed a blanket ban, but suggest that it is possible to find some common ground in regulating consent searches, for example by limiting them to instances in which the officer has probable cause that a crime has been committed. However, in Schneckloth the Supreme Court pointed out that 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. (Id. at p. 227.) Schneckloth addresses the question whether an officer must have probable cause to request consent for a search (the answer is no). However, Schneckloth does not address the question whether a standard less than probable cause could be required for consent searches.

Probable cause exists when there is a fair probability that a search will result in evidence of a crime being discovered. (Illinois v. Gates, (1983) 462 U.S. 213, 238.) The Fourth Amendment and California constitution already require all searches to be supported by probable cause. (U.S. Const., 4th Amend; Cal. Const., art I, § 13.) Consent is an exception. (Schneckloth v. Bustamonte (1973) 412 U.S. 218.) Thus, logic follows, that adding a probable cause requirement to consent searches only serves to eviscerate the entire concept of consent as an exception. Further, in many instances, if an officer has probable cause, they are not required to obtain consent prior to conducting a search. For example, searches incident to arrests and vehicle searches, even without consent, are permissible if an officer has probable cause. (United States v. Robinson (1973) 414 U.S. 218, 235; Husty v. United States (1931) 282 U.S. 694.) Moreover, probable cause is already the standard for a warrant, making consent based on probable cause all but meaningless. (Whiteley v. Warden (1971) 401 U.S. 560, 564.)

Alternatively, allowing consent searches only in instances where an officer has reasonable suspicion would require the officer to be able to articulate a basis for the search could sufficiently limit the vast discretion officers currently have to conduct consent searches. 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.)

Requiring consent searches to be supported by reasonable suspicion would not be unprecedented. The New Jersey Supreme Court, which limited consent searches to those supported by reasonable suspicion, stated that the reasonable and articulable suspicion standard “serves the prophylactic purpose of preventing the police from turning routine traffic stops into a fishing expedition for criminal activity unrelated to the lawful stop.” (State v. Carty (2002)170 N.J. 632, 634.)

Also, limiting consent searches to instances in which an officer has reasonable suspicion was recommended by the Committee on the Revision of the Penal Code: “Allow 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.” (Committee on the Revision of the Penal Code, 2022 Annual Report and Recommendations, supra, at p. 36 (emphasis added).) “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.” (Ibid. (emphasis added).) As noted above, as introduced, this bill goes far further than that recommended by the Committee on the Revision of the Penal Code.

Accordingly, the Legislature should consider whether, rather than banning consent searches, it could strike a balance by limiting consent searches to instances where officers have reasonable and articulable suspicion to believe that the search is likely to produce evidence of an offense.

1. Argument in Support: According to Initiate Justice, “These searches are invasive and traumatizing, and amount to fishing expeditions that are significantly influenced by officers’ biases.
   

“Indeed, research shows that people of color are significantly more likely to be asked to submit to a search than people who are white. Statewide, Black people are 4 times as likely, Latine people 2.4 times as likely, and multiracial people 2.2 times as likely to be asked for consent to search during a traffic stop than white people. In Los Angeles, 7 out of every 10 bicyclists searched by the Sheriff's Department was Latine. In San Francisco, Black motorists were eight times more likely than white drivers to be subjected to a consent search after a traffic stop, and Latine drivers were searched at almost four times the rate of white drivers. Yet research consistently shows that searches of Black and Latine people are significantly less likely to uncover contraband than are searches of people who are white.”

1. Argument in Opposition: According to San Diego Deputy District Attorneys Association (SDDDAA), “Our federal and state Constitutions and well-established case law provide very clear boundaries for what constitutes a valid consent search under the law. When an individual gives their consent to search their vehicle, their person, or their property, courts have bright line parameters provided in case law that require the scrutinization of the voluntariness and scope of consent. […] This extreme bill of throwing out all consensual searches takes away another valuable and lawful tool for law enforcement, while also removing choice from individuals in a free society to decide when they want to aid police, solve a crime, or ensure an innocent person is exonerated. …

“The Committee on Revision of the Penal Code is concerned about two areas as it relates to consent searches: (1) police asking for consent more often from people of color and (2) lower rates of discovering evidence of a crime from consent searches. […] It should be noted that this bill goes even further than the recommendations from the Committee on Revision of the Penal Code, which suggests consent searches when there is reasonable suspicion. This bill bans any person from freely choosing to allow the police to search a vehicle, their person or their effects/property. Put simply, this bill strips law enforcement of legally valid tools, strips individuals of free will to consent, and does nothing to keep the public safer in communities held hostage by violence.”

1. Related Legislation:
   
   1. AB 272 (Chen), would allow a search warrant for stolen property to include an order for such property to be returned to the person named in the warrant. AB 272 is pending hearing in this Committee.
      
   2. SB 64 (Umberg), would authorize a search warrant to be issued on the grounds that the property or things to be seized consists of evidence that tends to show that certain misdemeanor hate crimes have occurred. SB 64 is pending hearing in the Senate Public Safety Committee.
      
2. Prior Legislation:
   
   1. AB 2537 (Gipson), Chapter 332, Statutes of 2022, requires driver education courses to include a video on proper conduct by peace officers and individuals during a traffic stop.
      
   2. AB 2773 (Holden), Chapter 805, Statutes of 2022, requires a peace officer making a traffic or pedestrian stop to state the reason for the stop before asking any questions.
      
   3. AB 2918 (Holden), Chapter 723, Statutes of 2018, requires the DMV to include within its Handbook a section on a person’s civil rights during a traffic stop.
      
   4. AB 2133 (Torrico), of the 2005-2006 Legislative Session, would have prohibited consent searches in connection with traffic stops. AB 2133 was not heard in this Committee at the request of the author.
      

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Housing Is a Human Right Oc (HHROC)

Initiate Justice

Interfaith Movement for Human Integrity

Lawyers' Committee for Civil Rights of The San Francisco Bay Area

Legal Services for Prisoners With Children

Los Angeles County Bicycle Coalition

Norcal Resist

Oakland Privacy

Orange County Equality Coalition

People's Budget Orange County

San Francisco Public Defender

Smart Justice California

Social Justice Learning Institute

Social Justice Legal Foundation

Transforming Justice Oc

Woodhull Freedom Foundation

Opposition

Arcadia Police Officers' Association

Burbank Police Officers' Association

California Coalition of School Safety Professionals

California District Attorneys Association

Claremont Police Officers Association

Corona Police Officers Association

Culver City Police Officers' Association

Fullerton Police Officers' Association

Inglewood Police Officers Association

Los Angeles School Police Officers Association

Newport Beach Police Association

Palos Verdes Police Officers Association

Peace Officers Research Association of California (PORAC)

Placer County Deputy Sheriffs' Association

Pomona Police Officers' Association

Riverside Police Officers Association

Riverside Sheriffs' Association

San Diegans Against Crime

Santa Ana Police Officers Association

Upland Police Officers Association

Analysis Prepared by: