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Students in General

Students in General: Recognizing that students (K through high school) do retain some Fourth Amendment protections, and that school officials are, in effect, government employees, the Supreme Court struck a balance and found that school administrators may conduct searches of students and their personal belongings on no more than a "reasonable suspicion." (New Jersey v. T.L.O. (1985) 469 U.S. 325 [83 L.Ed.2^nd 720].)

Using a drug-sniffing dog to do sniffs of a student, being more intrusive, are considered to be a search, controlled by the Fourth Amendment, but only require a finding of a "reasonable suspicion" when the person sniffed is a student. (B.C. v. Plumas (9^th Cir. 1999) 192 F.3^rd 1260.)

A school resource officer, although employed as a municipal police officer, while working full time on a high school campus he adopts the relaxed "reasonable suspicion" standard applicable to school officials. (In re William V. (2003) 111 Cal.App.4^th 1464; see also In re Alexander B. (1990) 220 Cal.App.3^rd 1572, 1577-1578.)

And it is the opinion of the California Attorney General that a policy of unannounced, random, neutral dog sniffing of students' personal belongings, such as backpacks, purses, jackets, and outer garments, after ordering students to leave these items in a classroom and remain in another area, would be unconstitutional absent some suspicion or probable cause to support the search. (83 Opn.Cal.Atty. Gen. 257 (2000))

Use of metal detectors at the entrances of a school building are lawful, despite the lack of individualized suspicion, is lawful as a "special needs" search. (In re Latasha W. (1998) 60 Cal.App.4^th 1524.)

Ed. Code § 49050: The Education Code provides that "(n)o school employee shall conduct a search that involves:

Conducting a body cavity search of a pupil manually or with an instrument.
Removing or arranging any or all of the clothing of a pupil to permit a visual inspection of the underclothing, breast, buttocks, or genitalia of the pupil."

Patting a non-student down for possible weapons on a high school campus, where the defendant/minor was to be moved to the security office, need not be justified by an articulable suspicion that he might be armed. (In re Jose Y. (2006) 141 Cal.App.4^th 748.)

Frisks (or Pat Down)

Frisks (or Pat Downs) are considered searches, albeit limited in intrusiveness and scope.

Defined

Defined: Frisks generally consist of a police officer doing no more than feeling the outside of a suspect's clothing, checking for the feel of any potential offensive weapons. (See Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2^nd 889].)

For Weapons Only

A frisk is a limited search for weapons only. (Santos v. Superior Court (1984) 154 Cal.App.3^rd 1178.)

E.g.: Wrong answer: "I patted him down for weapons and/or contraband."

Patting a person down for identification is not lawful even though the person has been lawfully stopped and claims to have no identification. (People v. Garcia (2006) 145 Cal.App.4^th 782.)

Reasonable or Rational Suspicion

The police officer needs to be able to articulate facts establishing a "reasonable" or "rational" suspicion that the person may be armed. (Terry v. Ohio, supra.)

But, a traffic stop for an equipment violation in a "high crime" (i.e., gang) area at night is not reasonable suspicion, by itself, sufficient to justify a detention or pat down for weapons. (People v. Medina (2003) 110 Cal.App.4^th 171.)

Patting down a suspect in a mail theft, merely because the interview is to take place in a small, crowded interview room, that the interview might turn confrontational, and it was felt that patting the suspect down would be the "prudent" thing to do, is not sufficient reasonable suspicion to believe the person might be armed. (United States v. Flatter (9^th Cir. 2006) 456 F.3^rd 1154.)

At least one court referred to the test as being a "reason to believe" that the subject may be armed. (People v. Lopez (2004) 119 Cal.App.4^th 132.)

The Nature of the Crime as a Factor

The "nature of the crime" suspected is a factor in determining whether a frisk for weapons would be lawful:

Mail theft: No. (United States v. Flatter, supra.)

Robbery: Yes. (Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2^nd 889]; United States v. Hill (9^th Cir. 1976) 545 F.2^nd 1191.

Large-scale narcotics dealing: Yes. (United States v. $109,179 in U.S. Currency (9^th Cir. 2000) 228 F.3^rd 1080; United States v. Post (9^th Cir. 1979) 607 F.2^nd 847.)

Nighttime burglary: Yes. (United States v. Mattarolo (9^th Cir. 2000) 209 F.3^rd 1153.)

Counterfeiting: No. (United States v. Thomas (9^th Cir. 1988) 863 F.2^nd 622.)

Limited to Outer Clothing

A frisk is limited to the outer clothing, except when the clothing (or purse, etc.) is so resistant as to prevent feeling a possible weapon below the clothing. (People v. Brisendine (1975) 13 Cal.3^rd 528, 542.)

E.g.: Where the officer responded to a 9-1-1 call of a disturbance, and was directed to the defendant who was wearing a fanny pack in which the officer could see the apparent outline of a pistol, taking the fanny pack from the defendant and unzipping the outer compartment to remove what was in fact determined to be a pistol was not unreasonable. (People v. Ritter (1997) 54 Cal.App.4^th 274.)

Removal of Weapons

When an object is felt which might be a weapon of any sort, that object may then be removed and inspected. (People v. Snyder (1992) 11 Cal.App.4^th 389; bottle; People v. Atmore (1970) 13 Cal.App.3^rd 244, 247; shotgun shell.)

When Suspect Reaching for a Weapon

When an officer reasonably believes the suspect is reaching for a weapon, the officer need not first undertake a pat down search to palpate the object the suspect is reaching for. (People v. Wigginton (1973) 35 Cal.App.3^rd 732, 737-740; People v. Superior Court [Holmes] (1971) 15 Cal.App.3^rd 806, 813; People v. Atmore (1970) 13 Cal.App.3^rd 244, 247-248; People v. Woods (1970) 6 Cal.App.3^rd 832, 838; People v. Sanchez (1967) 256 Cal.App.2^nd 700, 703-704; People v. Rosales (1989) 211 Cal.App.3^rd 325, 329.)

P.C. § 833.5; Detentions

P.C. § 833.5: California provides legal authority for peace officers to detain and "conduct a limited search" of a person the officer has "reasonable cause" to believe has a firearm or other deadly weapon and to seize any weapon found. If the person is convicted of a charge related to the firearm or weapon, it shall be deemed a nuisance and disposed of pursuant to P.C. § 12028.

Note: In that most of the rules on "pat down searches" are from constitutionally-based case decisions, anywhere they might differ from the language of this statute, the case law is likely to take precedence.

During Consensual Encounter

During a "consensual encounter?" A pat down is probably not lawful, although it may never become an issue in that if an officer observes something giving him or her a reasonable suspicion that the consensually encountered person may be armed, that same reasonable suspicion would likely elevate the situation into one justifying a lawful detention. (See People v. Lee (1987) 194 Cal.App.3^rd 975, 982-983; People v. Rosales, supra, at p. 330.)

During Execution of a Search Warrant

During "execution of a search warrant," at least for narcotics: Courts tend to recognize the likelihood that narcotics suspects are often armed and may allow a pat down with no more than the conclusionary opinion that the "need for officer safety" dictated the need for a pat down. (People v. Samples 1996) 48 Cal.App.4^th 1197.)

Note Ybarra v. Illinois (1979) 444 U.S. 85 [62 L.Ed.2^nd 238], where the United States Supreme Court determined to be illegal the detention and pat down of anyone and everyone at the scene of the execution of a narcotics search warrant (i.e., a bar), absent evidence connecting each person to be detained and patted down with the illegal activity being investigated.

Feeling a Controlled Substance

Officer feels a controlled substance (or other items subject to seizure) during the pat down for weapons: If the officer has the training and expertise to recognize that the object is probably an illegal substance or object, he may do a full search based upon that newly developed probable cause. (People v. Lee (1987) 194 Cal.App.3^rd 975; People v. Thurman (1989) 209 Cal.App.3^rd 817, 825-826.)

E.g.: Feeling a lump which could not have been a weapon, plus other factors (prior lawful observation of pagers, gram scale upon which there was an odor of methamphetamine, and a plastic baggie), justified a finding of probable cause to search for contraband. (People v. Dibb (1995) 37 Cal.App.4^th 832.)

However, if the officer feels what might be a controlled substance in the pocket, and "manipulates" (Minnesota v. Dickerson (1993) 508 U.S. 366, 378 [124 L.Ed.2^nd 334, 345]; People v. Dickey (1994) 21 Cal.App.4^th 952, 957.) or "shakes" it (United States v. Miles (9^th Cir. 2001) 224 F.3^rd 1009.) in an attempt to confirm or verify his suspicions, the manipulation or shaking of the object is a search for contraband, done without probable cause, and illegal.

But, feeling a bulge that is believed to be a weapon, and manipulating it in an attempt to verify that it is a weapon, which requires no more than a reasonable suspicion, is lawful. (United States v. Mattarolo (9^th Cir. 1999) 209 F.3^rd 1153.)

Feeling a bulge and being unable to determine whether or not it is a weapon, it is okay to ask the suspect. If the suspect admits that it is contraband, this will give the officer probable cause to arrest and search. (People v. Avila (1997) 58 Cal.App.4^th 1069, 1075-1977.)

But feeling a bulge and recognizing that it is not a weapon (a film canister, in this case), and then asking the subject what it is, has been argued by some to be illegal as a "preliminary step to an illegal search" (see People v. Valdez (1987) 196 Cal.App.3^rd 799, 807); a questionable decision at best.

Feeling a bulge which the officer immediately recognized as car keys, after the subject had denied having any car keys on him, and with other evidence tending to connect him to a recent carjacking during which the car keys were taken, was sufficient probable cause to justify the retrieval of the keys from his pocket. (In re Lennies H. (2005) 126 Cal.App.4^th 1232.)

Frisk Based Upon Uncorroborated Anonymous Tip

Frisk for a Firearm based upon an Uncorroborated Anonymous Tip:

A detention and pat down for weapons, based upon an uncorroborated anonymous tip alone, is not lawful in that anonymous information has repeatedly been held to be legally insufficient to establish a reasonable suspicion. There is no such thing as a "firearms exception" to this rule. (Florida v. J.L. (2000) 529 U.S. 266 [146 L.Ed.2^nd 254].)

But note: The U.S. Supreme Court, in dicta, hinted strongly that had the anonymous tipster warned of something more dangerous, such as a bomb, a pat down based upon this tip alone might be upheld. The Court also indicated that certain areas where there is a lessened expectation of privacy, such as in an airport or on school grounds, may also be an exception to this rule. (Id., at pp. 273-274 [146 L.Ed.2^nd at p. 262].)

The Court, in a concurring opinion, also briefly discusses "predictive information" which may supply the necessary corroboration, such as being able to correctly describe future actions of the suspect. Also, unconnected anonymous informants, or anything which would add the element of credibility to the information, might sufficiently corroborate the anonymous informant. (Id., at p. 275 [146 L.Ed.2^nd at p. 263].)

See "Detentions," above.

Taking the hint, the appellate court in People v. Coulombe (2001) 86 Cal.App.4^th 52, found sufficient corroboration justifying a pat down for a firearm when the information came from two separate informants, where the tips were close in time, the informants contacted the officer personally (thus putting their anonymity at risk), and the setting was in a crowded throng of celebrants at a New Year's Eve street party, thus increasing the danger.

The fact that the physical description of a suspect who is reported by an anonymous tipster to have a gun in his pocket is very specific does not corroborate the tipster's information. Absent at least some suspicious circumstances observed by the responding police officers, finding the person described by the tipster does not create a reasonable suspicion justifying a detention or a pat down for weapons. (People v. Jordan (2004) 121 Cal.App.4^th 544, 553-652; the quick confirmation of the physical description of the defendant and his location, by itself, is legally insufficient.)

Other Situations

Other Situations:

Frisk of a person for weapons was lawful when it had been reported to police by a witness that one of several people present had been seen with a firearm, defendant was uncooperative and belligerent, and he kept reaching for an area in his baggy pants where there appeared to be a large, heavy object. (People v. Lopez (2004) 119 Cal.App.4^th 132.)

Stopping someone suspected of having just committed an armed carjacking, with the observation of a knife and bullets, and then a gun, all in plain sight, was more than enough to justify a cursory check of the suspects for possible weapons. Then, feeling objects which, as the deputy testified, could be, or could contain, weapons, the deputy was justified in removing and inspecting those items. (United States v. Hartz (9^th Cir. Aug. 17, 2006) 458 F.3^rd 1011, 1018-1019.)

General Rule

General Rule: There is no expectation of privacy in abandoned, or discarded, property. Such property, therefore, may be searched or seized without a warrant or even probable cause.

Property abandoned by a suspect, without both a subjective and an objectively reasonable expectation of privacy, may be seized and searched without probable cause and without a warrant. (In re Baraka H. (1992) 6 Cal.App.4^th 1039.)

E.g.: Trash Cans: There is no reasonable expectation of privacy in the trash one places in trash cans out at the curb for pick up. (California v. Greenwood (1988) 486 U.S. 35 [100 L.Ed.2^nd 30].)

The “Threatened Illegal Detention”

The "Threatened Illegal Detention:" What happens when the property is abandoned as a direct result of a police officer's attempt to illegally stop and detain a suspect?

The United States Supreme Court resolved a previous split of authority: There is no constitutional violation in a "threatened unlawful detention." The Fourth Amendment does not require suppression of evidence until the person is actually illegal detained; i.e., when the officer actually catches the defendant or the defendant otherwise submits to the officer's authority (i.e.; he gives up). (California v. Hodari D. (1991) 499 U.S. 621 [113 L.Ed.2^nd 690].)

Result: Any evidence abandoned during a foot pursuit of a fleeing suspect, even without any reasonable suspicion justifying a detention (i.e., a "threatened unlawful detention"), is admissible as abandoned property (as well as supplying the necessary "reasonable suspicion" to justify the suspect's detention upon being caught).

But, if the suspect does not abandon the contraband until after he has been caught, and thus illegally detained, then it is subject to suppression as "fruit of the poisonous tree;" i.e., the unlawful detention.

Searching for Identification

Searching for Identification:

A patdown of an individual for identification is illegal; patdowns on less than probable cause being allowed only for the purpose of discovering offensive weapons, and then only when the officer is able to articulate a "reasonable suspicion" for believing why the person might be armed. (People v. Garcia (2006) 145 Cal.App.4^th 782.)

A circumstance allowing for a check for identification has been found where the defendant claimed to have none, but the officer could see that he had a wallet in his pocket. (People v. Long (1987) 189 Cal.App.3^rd 77; telling the suspect to check his wallet and then insisting on watching him do so justified by the need to insure that he didn't conceal evidence or retrieve a weapon.)

Retrieving a wallet from a suspect where the wallet was visible in his pocket, after the suspect, who was lawfully detained, said he didn't have any identification, done for the purpose of checking the wallet for identification, was lawful "under the unique facts of this case." (People v. Loudermilk (1987) 195 Cal.App.3^rd 996.)

But note that the California Supreme Court has ruled that during a lawful traffic stop, at least after a demand for the driver's license and other vehicle documentation is made and a negative response is obtained (see United States v. Lopez (C.D.Cal. 1979) 474 F.Supp. 943, 948-949.), a warrantless, suspicionless intrusion into the vehicle for the limited purpose of locating such documentation is lawful, even if the driver denies that any such documentation exists. In so doing, the officer may look in any location where it is reasonable to believe he or she might find such documentation. (In re Arturo D. (2002) 27 Cal.4^th 60; Arturo D. was joined with the companion case, People v. Hinger, out of the Fourth District Court of Appeal.

This would include under the front seat (whether looking from the front or rear of the seat), in a glove compartment, and over the visor. It would probably not include within containers found in the vehicle or the trunk, absent some articulable reason to believe why such documentation might actually be there. (Id., at p. 86, and fn. 25.)

See "Searching a Vehicle for a Driver's License and/or Vehicle Registration, VIN Number, Proof of Insurance, etc," under "Searches of Vehicles," below.

Fingerprint Evidence

Fingerprint Evidence:

Upon being arrested, an arrestee has no legal right to refuse a fingerprint examination. (Virgle v. Superior Court (2002) 100 Cal.App.4^th 572.)

The legal authority for fingerprinting an arrestee can be inferred from various state statutes:

P.C. § 7(21): Describing the obtaining of fingerprints as part of the booking procedure.

P.C. § 853.6(g): The requirement that persons arrested and released on a misdemeanor citation provide fingerprints prior to the person's scheduled court appearance.

P.C. §§ 13125, 13127: Providing for the retention of certain basic information, including fingerprint identification numbers, on arrested individuals.

"Fingerprints taken pursuant to an arrest are part of so-called ‘booking' procedures, designed to ensure that the person who is arrested is in fact the person law enforcement officials believe they have in custody. (fn. omitted)" (United States v. Kinkade (9^th Cir. 2003) 345 F.3^rd 1095, 100-1101 (Reversed on other grounds); citing Smith v. United States (D.C. Cir. 1963) 324 F.2^nd 879, 883; and Napolitano v. United States (1^st Cir. 1965) 340 F.2^nd 313, 314.)

Fingerprints taken upon arrest for identification purposes are lawful, even if the product of an illegal arrest. (Immigration and Naturalization Service v. Lopez-Mendoza (1984) 468 U.S. 1032, 1039-1040 [82 L.Ed.2^nd 778].)

If, however, the fingerprints are found to have been obtained for "investigative purposes," such prints are subject to suppression absent probable cause justifying the arrest. (Davis v. Mississippi (1969) 394 U.S. 721 [22 L.Ed.2^nd 676]; Hayes v. Florida (1985) 470 U.S. 811 [84 L.Ed.2^nd 705]; United States v. Beltran (9^th Cir. 389 F.3^rd 864.)

However, even after fingerprints are taken for investigative purposes, and therefore suppressed as the product of an illegal arrest, the court, upon request, can require defendant to submit a new set of fingerprints for purposes of trial on the new criminal offense. (United States v. Garcia-Beltran (9^th Cir. 2006) 443 F.3^rd 1126; United States v. Parga-Rosas (9^th Cir. 2001) 238 F.3^rd 1209; United States v. Ortiz-Hernandez (9^th Cir. 2005) 427 F.3^rd 567.)

It can be argued that refusal to cooperate in providing fingerprints during the booking procedure is a violation of P.C. § 148(a)(1), for interfering with the officer in the performance of his or her duties. (See People v. Quiroga (1993) 16 Cal.App.4^th 961, 971; where defendant's conviction for P.C. § 148 upheld for refusing to identify himself during the booking procedure.)

In that fingerprint evidence does not involve any Fifth Amendment, self-incrimination issues (see Schmerber v. California (1966) 384 U.S. 757, 764 [16 L.Ed.2^nd 908, 916].), an arrestee has no right to refuse to provide them at his or her booking. (United States v. Kelly (2^nd Cir. 1932) 55 F.2^nd 67; People v. Jones (1931) 112 Cal.App. 68.)

While excessive force is not permissible (People v. Matteson (1964) 61 Cal.2d 466.), reasonable force which does not "shock the conscience" may be used if necessary in order to secure fingerprints from the arrested subject. (People v. Williams (1969) 71 Cal.2^nd 614, 625.)

Absent an arrest, the refusal to provide law enforcement with fingerprints is not a crime. However, it is apparently lawful to stop and fingerprint a particular suspect on less than probable cause, at least if done at the scene and without transportation to a police station. (Davis v. Mississippi (1969) 394 U.S. 721 [22 L.Ed.2^nd 676]; Hayes v. Florida (1985) 470 U.S. 811 [84 L.Ed.2^nd 705]; Virgle v. Superior Court, supra; Kaupp v. Texas (2003) 538 U.S. 626, 630, fn. 2 [155 L.Ed.2^nd 814, 820].)

The taking of a defendant's fingerprints is not a critical stage of criminal proceedings at which a defendant needs the presence of counsel. Therefore, there is no right to the presence of counsel at the taking of fingerprints. (People v. Williams, supra, citing United States v. Wade (1967) 388 U.S. 218, 227-228 [18 L.Ed.2d 1149, 1157-1158].)

Five deputies holding down a resisting criminal defendant for the purpose of obtaining his fingerprints, in a courtroom (but out of the jury's presence), where there were found to be less violent alternatives to obtaining the same evidence, is force that "shocks the conscience" and a violation of the defendant's Fourteenth Amendment due process rights. (People v. Herndon (2007) 149 Cal.App.4^th 274; held to be "harmless error" in light of other evidence and because defendant created the situation causing the force to be used.)

Handwriting (and Other Types of) Exemplars

Handwriting (and other types of) Exemplars:

Similarly, a criminal arrestee does not have a Fifth Amendment self-incrimination right not to provide a handwriting exemplar. (Schmerber v. California (1966) 384 U.S. 757, 768 [16 L.Ed.2^nd 908, 918]; Gilbert v. California (1967) 388 U.S 263 [18 L.Ed.2^nd 1178]; People v. Graves (1966) 64 Cal.2^nd 208.)

The same legal theory applies to a "voice exemplar." (United States v. Dionisio (1973) 410 U.S. 1 [35 L.Ed.2^nd 67].)

As well as submitting to being photographed. (Schmerber v. California, supra.)

Inventory Searches

A person who is to be booked, and who has objects in his possession, may be subjected to an inventory search despite the lack of probable cause. (Illinois v. Lafayette (1983) 462 U.S. 640 [77 L.Ed.2^nd 65].)

Search Incident to Arrest

A "search incident to arrest" does not include a "strip search" which, as a "serious intrusion upon personal rights" and "an invasion of personal rights of the first magnitude" (Chapman v. Nichols (10^th Cir. 1993) 989 F.2^nd 393, 395-396.), is generally not allowed prior to booking. (Foote v. Spiegel (Utah 1995) 903 F.Supp. 1463.)

Institutional Needs

Warrantless searches may be made by jail and prison officials to accommodate legitimate "institutional needs and objectives;" primarily internal security. (Hudson v. Palmer (1984) 468 U.S. 517, 524 [82 L.Ed.2^nd 393, 401].)

Other Purposes

Other purposes include:

To prevent the introduction of drugs and other contraband (including weapons) into the premises;
The detection of escape plots; and
The maintenance of sanitary conditions.

(See Hudson v. Palmer, supra, at p. 527 [82 L.Ed.2^ndat pp. 403-404]; United States v. Cohen (2^nd Cir. 1986) 796 F.3nd 20, 22-23.)

To collect evidence against inmates, including pretrial detainees. (People v. Davis (2005) 36 Cal.4^th 510, 523-529.)

Booking (and Inventory) Searches

Booking (and inventory) searches:

"Booking" entails the recordation of an arrest in official police records, and the taking by the police of fingerprints and photographs of the person arrested. (See People v. Superior Court [Simon] (1971) 7 Cal.3^rd 186, 208; see also P.C. § 7, subd. 21.)

Booking searches are justified under a number of legal theories:

To safeguard the person's property and for security purposes. (Illinois v. Lafayette (1983) 462 U.S. 640, 643-647 [77 L.Ed.2^nd 65]; People v. Laiwa (1983) 34 Cal.3^rd 711, 724-727; People v. Hamilton (1988) 46 Cal.3^rd 123, 137.)

See Gov't. Code § 26640; duty of the sheriff to take charge of, and safely keep, the property of a prisoner.

To prevent introduction of weapons and contraband into the jail facility. (People v. Gilliam (1974) 41 Cal.App.3^rd 181, 189.)
To discover evidence pertaining to the crime for which the person was arrested. (People v. Maher (1976) 17 Cal.3^rd 196, 200-201.)

Older authority has held that a booking search is really a "search incident to arrest with an inconsequential time lag." (People v. Superior Court [Murry] (1973) 30 Cal.App.3^rd 257, 263; and United States v. Edwards (1974) 415 U.S. 800, 803 [39 L.Ed.2^nd 771, 775-776].)

Containers

Containers: The right to conduct a warrantless booking search includes the right to search containers (e.g., purse, wallet, etc.) in the possession of the person to be booked. (Illinois v. Lafayette, supra; People v. Hamilton, supra, at p. 137.)

A defendant detained at a jail for failure to present satisfactory evidence of identification, pursuant to V.C. § 40307, may properly be subjected to a booking search even though not formally booked into the jail. (People v. Benz (1984) 156 Cal.App.3^rd 483, 489.)

Impounded Property

Impounded Property: A warrantless search of a prisoner's impounded property, such as a wallet or a purse, which was not searched until after completion of the booking process, and when there is no exigency, violates the inmate's privacy rights. A search warrant will be required to lawfully search the impounded wallet, purse, or other item. (People v. Smith (1980) 103 Cal.App.3^rd 840; evidence recovered from a wallet, not previously searched, in the defendant's booked property.)

Exceptions: Although Smith has never been expressly overruled, its continuing validity is seriously in question. At the very least, the exceptions to Smith have just about eaten up the rule. For instance:

No warrant is necessary for a post-booking search when the personal property searched has previously been viewed by officials. (E.g.; during the booking process or during a lawful search incident to arrest.) (People v. Davis (2000) 84 Cal.App.4^th 390; United States v. Holzman (9^th Cir. 1989) 871 F.2^nd 1496, 1505; United States v. Thompson (5^th Cir. 1988) 837 F.2^nd 673, 675; United States v. Johnson (9^th Cir. 1987) 820 F.2^nd 1065, 1071-1072.)

Property which is evidence of a crime may be taken from the person of the defendant without a warrant, even hours after booking, for the purpose of examination and testing. (United States v. Edwards (1974) 415 U.S. 800, 806 [39 L.Ed.2^nd 771, 777]; defendant's clothing, worn at the time of the booking, taken from him ten hours later, after replacement clothing was purchased for him.)

Note, however, the Supreme Court refused to "conclude that the Warrant Clause of the Fourth Amendment is never applicable to post-arrest seizures of the effects of an arrestee. [fn. Omitted]" (Id., at p. 808 [39 L.Ed.2^nd at p. 778].)

Recovery of a ring from defendant's booked property, contained in, and readily visible through, a transparent property bag, without the need to search any containers, was lawfully seized from defendant's property without the need for a warrant. (People v. Superior Court [Gunn] (1980) 112 Cal.App.3^rd 970.)

Note, however, the Court's discussion indicating that the right to search property without a warrant may even be broader: "Once articles have lawfully fallen into the hands of the police they may examine them to see if they have been stolen, test them to see if they have been used in the commission of a crime, return them to the prisoner on his release, or preserve them for use as evidence at the time of trial. [Citation] During their period of police custody an arrested person's personal effects, like his person itself, are subject to reasonable inspection, examination, and test. [Citation] Whatever segregation the police make as a matter of internal police administration of articles taken from a prisoner at the time of his arrest and booking does not derogate the fact of their continued custody and possession of such articles. [Citation]" (Id., at pp. 974-975.)

Ring worn by defendant in a robbery, visible to and identifiable by the victim, and properly in the custody of the sheriff after booking, does not hold the "vestige of privacy" as did the wallet in Smith, and was therefore properly retrieved from his impounded property in the jail and used as evidence in trial. (People v. Bradley (1981) 115 Cal.App.3^rd 744, 751; see also People v. Davis, supra.)

The warrantless search of defendant's personal effects, as an extension of the booking process, is okay. (People v. Panfili (1983) 145 Cal.App.3^rd 387, 392-394; where the arresting officer was instructed to isolate the property for a more detailed search later.)

Strip Searches of Prisoners

Strip Searches of Prisoners: Whether a prison or county jail inmate may be lawfully subjected to a "strip search" depends upon the circumstances, with Fifth and Fourteenth Amendment "due process," as well as Fourth Amendment "search and seizure" implications.

The Fourth Amendment right of the people to be secure against unreasonable searches and seizures "extends to incarcerated prisoners; however, the reasonableness of a particular search is determined by reference to the prison context." (Michenfelder v. Sumner (9^th Cir. 1988) 860 F.2^nd 328, 332.)

Note also authority (albeit the minority rule) from another circuit holding that prisoners have no privacy interests protected by the Fourth Amendment. (Johnson v. Phelan (7^th Cir. 1995) 69 F.2rd 144, 150.)

Even if the Fourth Amendment is inapplicable, the Fourteenth Amendment "due process" clause prohibits prison officials from "treating prisoners in a fashion so ‘brutal' and ‘offensive to human dignity' as to ‘shock the conscience.'" (Vaughn v. Ricketts (9^th Cir. 1988) 859 F.2^nd 736, 742; digital cavity searches conducted in a brutal fashion.)

However, even if a prisoner retains some degree of his or her Fourth Amendment rights, strip searches are reasonably related to legitimate penological interests, and therefore, if conducted properly, and limited to when necessary under the circumstances, are legal. (Michenfelder v. Sumner, supra, at p. 333.)

"Reasonableness," under the Fourth Amendment, requires the court to balance the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the intrusion, the justification for initiating it, and the place in which it is conducted. (Bell v. Wolfish (1979) 441 U.S. 520, 559 [60 L.Ed.2^nd 447, 480].)

The constitutionality of a visual inspection of a prison inmate's unclothed body, including body cavities, depends upon a balancing of (1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating the search, and (4) the place in which it is conducted. (People v. Collins (2004) 115 Cal.App.4^th 137, 152-153.)

The Court also noted that the more intrusive, "physical body cavity search" requires judicial authorization (i.e., a search warrant) and the use of properly trained medical personnel. (Id., at p. 143.)

California Code of Regulations, Title 15, § 3287(b), allows for a visual search of an inmate, clothed or unclothed, whenever there is a "substantial reason to believe the inmate may have unauthorized or dangerous items concealed on his or her person." (Italics added) Judicial authorization (i.e., a search warrant), and the use of "medical personnel in a medical setting," is only required in the case of a "physical (as opposed to a non-contact visual) body cavity search." In Collins, a visual inspection of the defendant's rectal area was intended, for which it is generally accepted that the rigorous requirements of the more intrusive "physical body cavity search" is not required.

Such visual body cavity searches have been upheld under circumstances constituting less than even a reasonable suspicion, such as after a visit to the law library, infirmary or exercise room, or an encounter with an outsider. (Id., at pp. 152-155; Goff v. Nix (8^th Cir. 1986) 803 F.2^nd 358, 368-371; Campbell v. Miller (7^th Cir. 1986) 787 F.2^nd 217, 228; and Arruda v. Fair (1^st Cir. 1983) 710 F.2^nd 886, 886-888.)

Note: Violation of the administrative provisions for the searching of prisoners in a prison, absent a constitutional violation, does not require the suppression of any resulting evidence. (People v. Collins, supra, at p. 156.)

The fact that the offense for which the defendant was arrested is classified as a felony does not mean that a strip search is constitutional. The seriousness of the offense must be balanced with all the other factors. (Kennedy v. Los Angeles (9^th Cir. 1989) 901 F.2^nd 702, 710-716; arrest for grand theft did not warrant a visual strip search, under the circumstances.)

But, a visual strip search was upheld for a person arrested for grand theft auto, in that this offense is sufficiently associated with violence to justify the intrusion into defendant's privacy. (Thompson v. Los Angeles (9^th Cir. 1989) 885 F.2^nd 1439, 1445-1448.)

Also, searches which are excessive, vindictive, harassing, or unrelated to any legitimate penological interest will not be upheld. (Michenfelder v. Sumner, supra, at p. 332; routine and repeated visual body cavity searches upheld for inmates in a maximum security prison holding Nevada's 40 most dangerous prisoners.)

Contact body cavity searches of female inmates conducted by police officers, without medical personnel, in a non-hygienic manner and in the presence of male officers, rejected as unreasonable. (Bonitz v. Fair (1^st Cir. 1986) 804 F.2^nd 164, 172-173.)

However, female prison guards subjecting male inmates to periodic body cavity searches is not a Fourteenth Amendment due process violation, nor an Eighth Amendment "cruel and unusual punishment," and therefore will not subject the guards to any civil liability. (Somers v. Thurman (9^th Cir. 1997) 109 F.3^rd 614.)

A full body cavity search of a group of 40 to 44 inmates returning to an honor farm from a day's work furlough was upheld when based upon information that marijuana was being brought into the honor farm. The body cavity searches were conducted by a doctor using an acceptable medical procedure. (People v. West (1985) 170 Cal.App.3^rd 326.)

X-raying all incoming prisoners being moved from one high-risk prison to a second high-risk prison is lawful. (People v. Pifer (1989) 216 Cal.App.3^rd 956.)

See Cal. Code of Reg., Title 15, § 3287(b), for statutory rules on strip searches of prison inmates.

Misdemeanor Booking Searches:

Due Process

Due Process: Balancing the interests involved, it has been held to be a Fourteenth (and Fifth) Amendment due process violation to strip-search a misdemeanor arrestee where the arrestee is not to be intermingled with the general jail population, the offense for which she was arrested is not one commonly associated with the possession of weapons or contraband (i.e., DUI in this case), and there is no cause to believe she may possess either. (Logan v. Shealy (4^th Cir. 1981) 660 F.2^nd 1007.)

The same rule holds true for a person arrested on minor misdemeanor arrest warrants, with no prior criminal history or any relationship to drugs or weapons. (Giles v. Ackerman (9^th Cir 1984) 746 F.2^nd 614.)

The fact that the arrestee is to be put into the general population, by itself, does not make constitutional a policy of strip searches. (Id., at p. 618.)

Restrictions

Restrictions: In the case of most misdemeanors, the California Legislature has restricted the right to conduct "strip" and "visual" or "physical" body cavity searches. (P.C. § 4030; see below.)

For Pre-Arraignment Detainees Arrested for Infractions and Misdemeanor Offenses

The following restrictions apply only to pre-arraignment detainees arrested for infraction and misdemeanor offenses, and minors detained prior to a detention hearing for infraction and misdemeanor violations. They do not apply to prisoners of the Department of Corrections or the California Youth Authority, or to post-arraignment inmates in local custody. (P.C. § 4030(b))

Definitions

Definitions:

P.C. § 4030(c): "Strip Search" means any search which requires the officer to remove or arrange some or all of that person's clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of the person.

P.C. § 4030(d)(1): "Body Cavity" means the stomach or rectal cavity of a person, and vagina of a female person.

P.C. § 4030(d)(2): "Visual Body Cavity Search" means visual inspection of a body cavity.

P.C. § 4030(d)(3): "Physical Body Cavity Search" means physical intrusion into a body cavity for the purpose of discovering any object concealed in the body cavity. (Often referred to as a "manual body cavity search" in federal cases.)

Pat Down, Metal Detector and Clothing Search

P.C. § 4030(e): Any person arrested and taken into custody may be subjected to a pat down search, metal detector search, and thorough clothing search, in order to discover and retrieve concealed weapons and contraband prior to being placed in a booking cell.

Limitations on “strip search” or “visual body cavity search”

P.C. § 4030(f): Unless, and until, a person (or minor, prior to a detention hearing), arrested for an infraction or misdemeanor, is moved into the general jail population (see subd. (g) for the prerequisites for moving a person arrested for an infraction or misdemeanor into the general population), he or she may not be subjected to a "strip search" or a "visual body cavity search" unless:

The offense for which he or she was arrested involved weapons, controlled substances, or violence; or
A peace officer has a "reasonable suspicion," based upon articulable facts, that the person is concealing a weapon or contraband and a strip search will result in the discovery of the weapon or contraband.

No strip search or visual body cavity search may be conducted without prior written authorization of the supervising officer on duty, with such authorization specifying the articulable facts and circumstances upon which the reasonable suspicion determination was made by the supervisor.

An arrest for the misdemeanor offense of being under the influence of a controlled substance, per H&S § 11550, does not justify a later visual body cavity search at the jail prior to being taken into the general jail population, despite this statute to the contrary, absent any specific articulable facts amounting to a reasonable suspicion that the arrestee does in fact possess a controlled substance. (Way v. County of Ventura (2006) 445 F.3^rd 1157.)

Search Warrant Requirement

P.C. § 4030(h): No person (nor a minor, prior to a disposition hearing) arrested for an infraction or a misdemeanor offense shall be subjected to a "physical body cavity search" except under the authority of a search warrant issued by a magistrate specifically authorizing the physical body cavity search.

Touching Prohibited

P.C. § 4030(j): Persons conducting a "strip search" or a "visual body cavity search" shall not touch the breasts, buttocks, or genitalia of the person being searched.

Physical Body Cavity Searches

P.C. § 4030(k): "Physical body cavity searches" may be conducted only:

Under sanitary conditions.
Only by a physician, nurse practitioner, registered nurse, licensed vocational nurse or emergency medical technician Level II, licensed to practice in this state.

Sex of Searchers

P.C. § 4030(l): All persons conducting or otherwise present for a "strip search," or a "visual" or "physical body cavity search," except for physicians or licensed medical personnel, shall be of the same sex as the person being searched.

Location of Searches

P.C. § 4030(m): All "strip searches," or "visual" or "physical body cavity searches" shall be conducted in an area of privacy so that the search cannot be observed by persons not participating in the search. Persons are considered to be participating in the search if their official duties relative to search procedure require them to be present at the time the search is conducted.

Penalties for Violations

P.C. § 4030(n): Violation of any of the above is a misdemeanor; 6 months and $1,000 fine. (P.C. § 19)

Civil Remedies for Violations

P.C. § 4030(o), (p): Civil remedies for violations.

Case Law

Case law:

People v. Wade (1989) 208 Cal.App.3^rd 304: Probable cause existed for a visual body cavity search of a defendant arrested for a narcotics violation, although other P.C. § 4030 requirements were not met. However, P.C. § 4030 does not provide for suppression of evidence as a remedy for violating the terms of this section, and the search was valid under federal constitutional law. Therefore, the resulting evidence was admissible despite the P.C. § 4030 violation.

Jail Cells

Jail Cells: The United States Supreme Court has upheld the random, warrantless searches of an inmate's prison cell, concluding that the Fourth Amendment's proscription against unreasonable searches and seizures is not applicable because an inmate has no reasonable expectation of privacy in his or her cell. (Hudson v. Palmer (1984) 468 U.S. 517, 526 [82 L.Ed.2^nd 393, 402-403].)

The courts have found the rules for prisons to be no different than those for a county jail. (See DeLancie v. Superior Court (1982) 31 Cal.3^rd 865, overruled on other grounds.)

The California Supreme Court is in accord, applying the rule of Hudson v. Palmer to a defendant's jail cell. (People v. Bittaker (1989) 48 Cal.3^rd 1046, 1096.)

In discussing the warrantless seizure of materials from the defendant's jail cell that were relevant to a pending murder prosecution, the California Supreme Court, at pages 1095-1096, noted that: "(D)efendant had no reasonable expectation of privacy in property within his jail cell either under federal law (see Hudson v. Palmer (1984) 468 U.S. 517, 526 [82 L.Ed.2d 393, 402-403 . . . ].) or under California decisions which govern searches antedating DeLancie v. Superior Court (1982) 31 Cal.3d 865 [183 Cal.Rptr. 866, 647 P.2d 142] (see People v. Valenzuela (1984) 151 Cal.App. 3d 180, 189 [198 Cal.Rptr. 469] and cases there cited). Since Budds could have seized the manuscript without asking for or receiving consent, the issues defendant raises are immaterial to the validity of the seizure."

The California Supreme Court has also interprets Hudson to mean that eavesdropping on jail inmates' (including pretrial detainees) conversations is lawful due to the lack of an expectation of privacy, and even if done for the purpose of collecting evidence. (People v. Davis (2005) 36 Cal.4^th 510, 523-529; recognizing that some courts disagree on whether pretrial detainees have a higher expectation of privacy than do convicted inmates.)

See Cal. Code of Reg., Title 15, § 3287(a), for statutory rules on the searches of prison cells and other inmate property.

Monitoring of Jail Visitations and Telephone Calls:

Rule

Rule: Given an inmate's lack of any reasonable expectation of privacy, the California Supreme Court, in People v. Loyd (2002) 27 Cal.4^th 997, overruling its previous decision in Delancie v. Superior Court (1982) 31 Cal.3^rd 865, has recently upheld the constitutionality of the following, even when done for the sole purpose of seeking incriminating evidence, despite the lack of a warrant or other judicial authorization.

Monitoring and recording of jail visitations.
Monitoring and recording of jail conversations over internal phone lines.
Monitoring and recording of jail conversations over external phone lines.

P.C. §§ 2600 & 2601(d), purporting to provide state prison (and by inference, county jail) inmates with a right to visitors, were amended by the Legislature in 1997, eliminating that right.

The Court in Loyd, however, specifically declined to decide the applicability of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2520) to the monitoring and recording of jail conversations over external telephone lines.

See People v. Zepeda (2001) 87 Cal.App.4^th 1183, where the need to obtain judicial authorization was assumed, without discussion, to be the law.

However, under Title III; "(I)t shall not be unlawful . . . for a person acting under color of law to intercept a wire, oral, or electronic communication where . . . one of the parties to the communication has given prior consent to such interception." (18 U.S.C. § 2511(2)(c))

Based upon this, it has been held that where a sign has been posted indicating that "telephone calls may be monitored and recorded," inmates are on notice, and his or her "decision to engage in conversations over those phones constitute implied consent to that monitoring and takes any wiretap outside the prohibitions of Title III." (People v. Kelly (2002) 103 Cal.App.4^th 853, 858; warrantless recording of defendant's telephone conversations to parties on the outside approved.)

Such warning signs also take such telephone calls outside the search warrant provisions of California's wiretap statutes. (P.C. §§ 629.50 et seq.; Id., at pp. 859-860.)

See also People v. Windham (2006) 145 Cal.App.4^th 881: The warrantless monitoring and recording of a jail inmates' telephone calls, where signs were posted, a message was heard at the beginning of every call, and jail rules provided to inmates, all noted that telephone calls would be monitored, violated neither the federal Title III rules nor California's Privacy Act provisions (P.C. §§ 630 et seq.)

Note also, a phone used during a physical visitation by a prisoner and his or her visitor does not meet the requirements of a "wire communication," not using a line in interstate or foreign commerce. It is therefore not subject to the wiretap restrictions of P.C. § 631. (People v. Santos (1972) 26 Cal.App.3^rd 397, 402.)

The California Supreme Court interprets Hudson to similarly allow eavesdropping on the conversations of inmates (including pretrial detainees) due to the lack of an expectation of privacy, even if done for the purpose of collecting evidence. (People v. Davis (2005) 36 Cal.4^th 510, 523-529.)

See also People v. Leonard (2007) 40 Cal.4^th 1370, 1404, where the California Supreme Court found no violation of the Fourth Amendment, the California Constitution's right to privacy, and Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. § 3711) by videotaping the defendant's end of a telephone conversation with his father when the defendant knew he was being videotaped.

Exceptions

Exceptions: There are a number of very important exceptions with which law enforcement must be aware:

P.C. § 636(a): Makes it a felony to eavesdrop on, or record, by means of an electronic device, a conversation between a person in the physical custody of a law enforcement officer or other public officer, or who is on the property of a law enforcement agency or other public agency, and that person's attorney, religious advisor, or licensed physician. (See In re Jordan (1972) 7 Cal.3^rd 930, 937-938, fn. 3; People v. Lopez (1963) 60 Cal.2^nd 223, 248.)

Subdivision (b) makes it a felony to eavesdrop on such a conversation by "nonelectronic" means, but excludes inadvertently overhearing such a conversation, or when the conversation is in a courtroom or other room used for adjudicatory proceedings.

Where jail officers acted so that the suspect "and his wife were lulled into believing that their conversation would be confidential." (North v. Superior Court (1972) 8 Cal.3^rd 301, 311; People v. Loyd (2002) 27 Cal.4^th 997, 1002.)

Monitoring Jail Mail

Monitoring Jail Mail: It is constitutionally permissible to monitor inmate mail coming into a jail facility. (People v. Dinkins (1966) 242 Cal.App.2^nd 892, 903; People v. Jones (1971) 19 Cal.App.3^rd 437, 449.)

An inmate's "legal mail" (i.e., correspondence with the prisoner's attorney) may be opened as well, so long as it is not read. (People v. Poe (1983) 145 Cal.App.3^rd 574; People v. White (1984) 161 Cal.App.3^rd 246.)

Outgoing mail may also be monitored, "to prevent any threats emanating from inmates." (People v. Jones, supra, see Cal. Code Regs, Title 15, § 3138(a))

The sole exception is legal correspondence to the defendant's attorney. (Cal. Code Regs, tit. 15, § 3141(b), (c)): "An attorney at law listed with a state bar." (subd. (c)(6))

The marital communication privilege does not protect defendant's personal letters to his wife. (United States v. Griffin (9^th Cir. 2006) 440 F.3^rd 1138.)

"Intra-jail mail" between inmates may also be read "to discover any threats that might be made to an inmate, ‘snitch jackets' placed on other inmates, and to detect coordination of possible escape attempts between inmates in custody." (People v. McCaslin (1986) 178 Cal.App.3^rd 1, 4.)

Prison authorities may enact and enforce rules restricting the receipt of magazines and other literature so long as such regulations "support the legitimate penological interests of reducing prohibited behaviors such as sexual aggression and gambling and maintaining respect for legitimate authority." (Bahrampour v. Lampert (9^th Cir. 2004) 356 F.3^rd 969.)

Under the theory of People v. Loyd (2002) 27 Cal.4^th 997, it would seem that monitoring all non-legal mail, coming in and going out of a facility, would be constitutionally permissible even if the purpose is to look for incriminating evidence.

Note: None of the above cases have required, or indicated the need for, a search warrant to monitor jail mail.

Regulating Jail/Prison Visitations

Regulating Jail/Prison Visitations:

There is no constitutionally guaranteed "due process" right to visitation for jail or prison inmates. "The denial of prison access to a particular visitor ‘is well within the terms of confinement ordinarily contemplated by a prison sentence,' Hewitt v. Helms (1983) 459 U.S. 460, 468 [96 L.Ed.2^nd 654, 686], and therefore is not independently protected by the Due Process Clause." (Kentucky Department of Corrections v. Thompson (1989) 490 U.S. 454, 461 [104 L.Ed.2^nd 506, 515].)

It is not a violation of the constitutional right of association (First Amendment), against cruel and unusual punishment (Eight Amendment), nor due process (Fifth and Fourteenth Amendments) to limit the number and relationship of visitors, such regulations being reasonably related to "legitimate penological interests." (Overton v. Bazzetta (2003) 539 U.S. 126 [156 L.Ed.2^nd 162].)

However, a state may create such enforceable liberty interests in the prison, and presumably county jail, settings by statute. (Ibid.; Hewitt v. Helms, supra, at p. 469 [96 L.Ed.2^nd at p. 686].)

P.C. §§ 2600 & 2601(d), purporting to provide state prison (and by inference, county jail) inmates with a right to visitors, were amended by the Legislature in 1997, eliminating that right.

A person who intends to visit a prison or county jail inmate will be subject to a strip search, including a "visual body cavity search," whenever there is a "reasonable suspicion" to believe the visitor possessions weapons and/or contraband. (In re Roark (1996) 48 Cal.App.4^th 1946.)

However, it has been held, at least for purposes of persons attempting to visit an inmate of any of the prisons of the California Department of Corrections, while justifying the lowered search standard on the theory that keeping weapons and contraband out of a prison is an important governmental interest and that therefore searching visitors is an "administrative search," the visitor must be given the option of forgoing the visit, and leaving, rather than submitting to a strip search. (Estes v. Rowland (1993) 14 Cal.App.4^th 508; see below.)

Estes v. Rowland, supra, also imposes the following requirements upon the Department of Corrections before a strip search of a prison visitor or the search of the person's vehicle will be allowed:

All persons eligible to visit inmates must be mailed written notice in English and Spanish of a dog search policy, the reasons for the policy, and the consequences of finding contraband in a vehicle or on the person of a prison visitor.
Immediately prior to a proposed search, the driver of each vehicle must be informed orally and in writing (again, in English and Spanish) of what the search will entail, the reasons for it, and the consequences of finding contraband. The notice must advise the driver that he or she has the option of leaving and returning without the car without losing visiting privileges for that day. Searches may be conducted only after written consent for the search is first obtained from the driver.
If the driver decides to leave, passengers may stay and cannot be denied their visit.
Local police officers may not be involved in the search process, and may not be present at the search unless there is some valid reason for their presence. Violations of the Vehicle Code may not be reported to any law enforcement agency.
No vehicle may be delayed more than ten (10) minutes prior to the search. A wait of up to 30 minutes is allowed "in unusual situations" (see p. 529 of the decision) "where the exigency is not created by the Department (of Corrections)."
A search should take no longer than reasonably necessary.
Dogs must be kept at least twenty (20) feet from visitors at all times.
Searchers may not read books, letters or other documents in possession of the visitors absent a reasonable suspicion that they are contraband.
A visitor may be requested to submit to a strip search if a drug dog alerts on the individual or drugs are found in the vehicle. The person must be given the reasons for the search orally and in writing, and given the option of refusing to be searched and leaving the grounds.
The Department of Corrections must adopt regulations encompassing the conditions and must distribute them to all institutions.

A "manual" or "physical" body cavity search, requiring a touching and constituting more than a mere visual inspection, may require "probable cause" and a search warrant. There is no local authority telling us what the standards should be. But see:

Laughter v. Kay (D. Utah 1997) 986 F.Supp. 1362; where probable cause and a search warrant were required.

Long v. Norris (6^th Cir. 1991) 929 F.2^nd 1111; inferring that no more than a reasonable suspicion is necessary, and that a search warrant was not required.

Note: The body cavity visual inspection of all inmates in a federal prison institution, made after contact visits with persons from the outside, was held to be reasonable and not prohibited by the Fourth Amendment. (Bell v. Wolfish (1979) 441 U.S. 520 [60 L.Ed.2^nd 447].)

Retained Constitutional Rights:

Infringement on Rights

Infringement on Rights: It has been held that prison inmates do retain certain basic constitutional rights that may be infringed on, if at all, only when rationally related to "institutional penological interests." (Overton v. Bazzetta (2003) 539 U.S. 126 [156 L.Ed.2^nd 162].)

"When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights." (Procunier v. Martinez (1974) 416 U.S. 396, 405-406 [40 L.Ed.2^nd 224, 236].)

However, absent a showing that prison regulations or practices "create inhumane prison conditions, deprive inmates of basic necessities or fail to protect their health or safety . . . (or) involve the infliction of pain or injury, or deliberate indifference to the risk that it might occur," there is no constitutional violation. (Overton v. Bazzetta, supra, at p. 137 [156 L.Ed.2^nd at p. 173].)

Rights Retained by Prison Inmates

Rights retained by prison inmates include:

The right to "petition the government for a redress of grievances" (First Amendment). (Johnson v. Avery (1969) 393 U.S. 483 [21 L.Ed.2^nd 718].)
The right to be protected from "invidious racial discrimination" (Fourteenth Amendment, Equal Protection). (Lee v. Washington (1968) 390 U.S. 333 [19 L.Ed.2^nd 1212].)
The right to "due process" (Fifth and Fourteenth Amendments). (Wolff v. McDonnell (1974) 418 U.S. 539 [41 L.Ed.2^nd 935]; Haines v. Kerner (1972) 404 U.S. 519 [30 L.Ed.2^nd 652].)

DNA Profiling of Prisoners

DNA Profiling of Prisoners and other Persons Arrested for Felonies:

The DNA and Forensic Identification Database and Data Bank Act of 1998

P.C. § 295(a): The DNA and Forensic Identification Database and Data Bank Act of 1998, as amended.

Statement of Intent

P.C. § 295(b): Statement of Intent. "It is the intent of the people of the State of California, in order to further the purposes of this chapter, to require DNA and forensic identification data bank samples from all persons, including juveniles, for the felony and misdemeanor offenses described in subdivision (a) of Section 296." (Para. (2))

Purpose

P.C. § 295(c): Purpose: The stated purpose is to establish a data bank and database to assist federal, state, and local criminal justice and law enforcement agencies in the expeditious detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children.

Identification of Criminal Offenders

P.C. § 295(d): Describes these provisions as "an administrative requirement to assist in the accurate identification of criminal offenders."

Biological Samples Limited to “Buccal”

P.C. § 295(e): Unless otherwise requested by the Department of Justice, collection of biological samples for DNA analysis from qualifying persons is limited to collection of inner cheek cells of the mouth ("buccal swab samples").

Collection of Blood Samples

P.C. § 295(f): Authorizes the collection of blood specimens from federal, state or local law enforcement agencies when necessary in a particular case or would aid DOJ in obtaining an accurate forensic DNA profile for identification purposes.

DNA and Forensic Identification Database and Data Bank Program

P.C. § 295(g) & (h): Department of Justice is responsible for the management and administration of the DNA and Forensic Identification Database and Data Bank Program, and for liaison with the FBI. Provisions for the enactment of local and state polices and procedures.

Provisions for providing information to an international DNA database and data bank program does not violate defendant's privacy rights and is therefore constitutional. (People v. McCray (2006) 144 Cal.App.4^th 258.)

Counties’ Responsibilities

P.C. § 295(i): Counties' Responsibilities:

(1) When the specimens, samples and print impressions are collected at a county jail or other county facility, including a private community correctional facility, the county sheriff or chief administrative officer of the county jail or other facility shall be responsible for all the following:

(A) Collect the specimens, etc., immediately following arrest, conviction, or adjudication, or during the booking or intake or reception center process at that facility, or reasonably promptly thereafter.

(B) Collect the specimens, etc., as soon as administratively practicable after a qualifying person reports to the facility for the purpose of providing them.

(C) Forward the collected specimens, etc., immediately to the Department of Justice, and in compliance with department policies.

(2) The specimens, etc., shall be collected by a person using a collection kit approved by the Department of Justice and in accordance with the requirements and procedures set forth in P.C. § 298.

(3) Counties to be reimbursed for expenses.

Costs

P.C. § 295(j): Portion of the costs may be paid by defendants at sentencing.

DNA Testing Fund

P.C. § 295(k): Funds to be deposited in the DNA Testing Fund.

The “Jan Bashinski DNA Laboratory.”

P.C. § 295(l): The Department of Justice DNA Laboratory to be known as the "Jan Bashinski DNA Laboratory."

NeOffenders Subject to Collection of Specimens, Samples and Print Impressions

P.C. § 296(a): The below listed persons shall provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples as described in the statutes, for law enforcement identification analysis:

(1): Any person, including any juvenile, who is convicted of or pleads guilty or no contest to any felony offense, or any juvenile who is adjudicated under W&I § 602 for committing any felony offense.

The mandatory requirements of this section have withstood constitutional attack, as far as adult defendants are concerned, a number of times. (See People v. King (2000) 82 Cal.App.4^th 1363; Alfaro v. Terhune (2002) 98 Cal.App.4^th 492; People v. Travis (2006) 139 Cal.App.4^th 1271.)

It has also been held that the requirement that a minor comply with this section is constitutional (i.e., no Fourth Amendment violation) despite the stronger privacy interest in Juvenile Court proceedings. (In re Calvin S. (2007) 150 Cal.App.4^th 443.)

Reduction of defendant's felony conviction to a misdemeanor, after having successfully completed certain terms and conditions of probation for one year, does not entitle defendant to the expungement of the DNA data or return or destruction of the DNA sample. (Coffey v. Superior Court (2005) 129 Cal.App.4^th 809.)

(2): Any adult who is arrested for or charged with any of the following felony offense:

(A): All felony P.C. § 290 (sex registration) offenses, or attempts to commit such offense.

(B): Murder or voluntary manslaughter, or attempts to commit such offense.

(C): Any felony offense (effective 1/1/2009).

(3): Any person, including any juvenile, who is required to register per P.C. §§ 290 (sex) or 457.1 (arson) because of the commission of, or attempt to commit, a felony or misdemeanor offense, or any person, including any juvenile, who is housed in a mental health facility or sex offender treatment program after referral to such facility or program by a court after being charged with any felony offense.

(4): Includes attempts.

(5): These provisions are not intended to preclude the collection of samples as a condition of a plea for a non-qualifying offense.

Applies to All Qualified Persons Regardless of Sentence

P.C. § 296(b): Provisions apply to all qualifying persons regardless of the sentence imposed.

Applies to All Qualified Persons Regadless of Placement

P.C. § 296(c): Provisions apply to all qualifying persons regardless of placement or confinement in any mental hospital or other public or private treatment facility, and shall include, but not be limited to, the following persons including juveniles:

(1): Any person committed to a state hospital or other treatment facility as a mentally disordered sex offender, per W&I §§ 6300 et seq.

(2): Any person who has a severe mental disorder, per P.C. §§ 2960 et seq.

(3): Any person found to be a sexually violent predator, per P.C. §§ 6600 et seq.

Provisions are Mandatory

P.C. § 296(d): Provisions are mandatory, and apply even if not so advised by the court.

One's religious beliefs might provide a particular defendant, under the "Religious Freedom Restoration Act," with a legal excuse for declining to provide a blood sample if the defendant can:

Articulate the scope of his beliefs;
Show that his beliefs are religious;
Prove that his beliefs are sincerely held; and
Establish that the exercise of his sincerely held religious beliefs is substantially burdened.

If defendant can prove the above, the government may still require that he provide a blood sample if it can show

Requiring that he provide a blood sample furthers a compelling governmental interest;
Through the least restrictive means.

(United States v. Zimmerman (9^th Cir. 2007) 514 F.3^rd 851.)

Duty of a Prosecutor to Notify the Court

P.C. § 296(e): Duty of a prosecutor to notify the court of a defendant's duty to provide the required samples.

Duty of a Court to Inquire

P.C. § 296(f): Duty of a court to inquire and verify that the required samples have been collected. Abstract of judgment to show that a defendant was ordered to provide such samples, and advisal to a defendant that he or she will be included in the DNA data bank. Failure to so notify a defendant is not grounds to invalidate an arrest, plea conviction or disposition, or affect the defendant's duty to provide such samples.

Collection of Samples For Present and Past Qualifying Offenses

P.C. § 296.1(a): The specimens, samples, and print impressions shall be collected from persons as described in P.C. § 296(a) for "present and past qualifying offenses of record" as follows:

Subd. (a)(1): Collection from any adult following arrest for a felony offense as described in P.C. § 296(a)(2)(A), (B) and (C):

(A) Immediately following arrest, or during the booking or intake or reception center process, or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody; or

(B) Upon mandatory order of the court to report within five calendar days to a county jail facility or to a city, state, local, private, or other designated facility.

Subd. (a)(2): Collection from persons (adult or juvenile) already confined or in custody after conviction or adjudication:

(A) Immediately upon intake, or during the prison reception center process, or as soon as administratively practicable at the appropriate custodial or receiving institution or program, if:

(i) The person has a record of any past or present conviction or adjudication as a ward of the court in California of a qualifying offense described in P.C. § 296(a), or has a record of any past or present conviction or adjudication in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as an offense as described in P.C. § 296(a); and

(ii) The person's specimens, etc., are not in the possession of the Department of Justice DNA Laboratory, or have not been recorded as part of DOJ's DNA data bank program.

Subd. (a)(3): Collection from persons on probation, parole, or other release:

(A) Any person, including a juvenile, who has a record of any past or present conviction or adjudication for any offense listed in P.C. § 296(a), who is on probation or parole for any felony or misdemeanor whether or not listed under P.C. § 296(a), shall provide the required samples if

(ii) The person's specimens, etc., are not in the possession of the Department of Justice DNA Laboratory, or have not been recorded as part of DOJ's DNA data bank program.

(B) The person shall have the required specimens, etc., collected within five calendar days of being notified by the court, or a law enforcement agency or other agency authorized by the Department of Justice. The specimens, etc., shall be collected in accordance with P.C. § 295(i) at a county jail facility or a city, state, local, private, or other facility designated for this collection.

Subd. (a)(4): Collection from parole violators and others returned to custody:

(A) If a person, including a juvenile, who has been released on parole, furlough, or other release for any offense or crime, whether or not set forth in P.C. § 296(a), is returned to a state correctional or other institution for a violation of a condition of his or her parole, furlough, or other release, or for any other reason, that person shall provide the required samples at a state correctional or other receiving institution, if

(ii) The person's specimens, etc., are not in the possession of the Department of Justice DNA Laboratory, or have not been recorded as part of DOJ's DNA data bank program.

Subd. (a)(5): Collection from persons accepted into California from other jurisdictions:

(A) When an offender from another state is accepted into this state under the various listed agreements and compacts, whether or not the offender is in custody, the acceptance is conditional on the offender providing the required specimens if the offender has a record of any past or present conviction or adjudication in California of a qualifying offense as listed in P.C. § 296(a), or has a record of any past or present conviction or adjudication in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as an offense as described in P.C. § 296(a).

(B) If the person is not in custody, the required specimens, etc., must be provided within five calendar days after the person reports to the supervising agent or within five calendar days of notice to the person, whichever occurs first. The person shall report to a county jail facility in the country where he or she resides or temporarily is located to have the specimens collected, in accordance with P.C. § 295(i).

(C) If the person is in custody, the required specimens, etc., shall be collected as soon as practicable after receipt in the facility.

Subd. (a)(6): Collection from persons in federal custody:

(A) Subject to the approval of the FBI, persons confined or incarcerated in a federal prison or federal institution who have a record of any past or present conviction or juvenile adjudication for an offense listed in P.C. § 296(a), or a similar crime under the laws of the Untied States or any other state that would constitute an offense described in PC. § 296(a), are subject to the requirements of these sections if any of the following apply:

(i) The person committed the qualifying offense in California;

(ii) The person was a resident of California at the time of the qualifying offense;

(iii) The person has any record of a California conviction for an offense described in P.C. § 296(a) regardless of when it was committed; or

(iv) The person will be released in California.

(B) The Department of Justice DNA Laboratory shall forward portions of the required specimens, etc., to the U.S. Department of Justice, upon request. Samples will be collected in accordance with P.C. § 295(i).

Retroactivity of Provisions

P.C. § 296.1(b): The above provisions are retroactive.

Procedures for Obtaining Replacement

P.C. § 296.2: Procedures for obtaining replacement samples when the originals are not usable.

Analysis of Crime Scene Samples

P.C. § 297: Analysis of crime scene samples.

Procedures for Collection of Samples

P.C. § 298: Procedures for collection of samples:

(a) The Director of Corrections, or the Chief Administrative Officer of the detention facility, jail or other facility at which the specimens, etc., were collected shall cause them to be forwarded promptly to the Department of Justice. The specimens, etc., shall be collected by a person using a Department of Justice approved collection kit and in accordance wit the requirements and procedures set forth below.

(b)(1) Department of Justice's responsibility for providing kits.

(b)(2) The withdrawal of blood shall be performed in a medically approved manner by health care providers trained and certified to draw blood.

(b)(3) Buccal swab samples may be procured by law enforcement or correctional personnel or other individuals trained to assist in buccal swab collection.

(b)(4) Thumb and palms prints shall be taken on forms prescribed by the Department of Justice, with palm print forms to be forwarded to, and maintained by, the Bureau of Criminal Identification and Information, Department of Justice. Thumbprints to be placed on the sample and specimen containers and forms as directed by the Department of Justice, and forwarded to, and maintained by, the DNA Laboratory.

(b)(5): The collecting agencies responsibility to confirm that the person from whom the specimens, etc., are collected, qualifies.

(b)(6): The DNA Laboratory is responsible for establishing procedures for entering data bank and database information.

(c): Protection from civil or criminal liability for errors in the above. Mistakes also not grounds for invalidating an arrest, plea, conviction, or disposition.

Sanctions for Failure to Provide Required Samples

P.C. § 298.1(a): Sanctions for failure to provide the required samples upon written notification: Misdemeanor; 1 year and $500 fine. For persons already confined in state prison; "by sanctions for misdemeanors according to a schedule determined by the Department of Corrections."

Use of Force

P.C. § 298.1(b)(1): Authorized law enforcement, custodial, or corrections personnel, including peace officers as defined in P.C. §§ 830, 830.1, 830.2(d), 830.5, and 830.55, may employ reasonable force to collect blood specimens, saliva samples, or thumb or palm print impressions from individuals who, after a written or oral request, refuse to provide those specimens, samples, or thumb or palm print impressions.

“Reasonable Force,” Defined

P.C. § 298.1(c)(1)(A), (2)(A): "Use of Reasonable Force" is defined as force that an objective, trained and competent correctional employee, faced with similar facts and circumstances, would consider necessary and reasonable to gain compliance.

Written Authorization to Use Force

P.C. § 298.1(c)(1)(B), (2)(B): The use of force must be preceded by written authorization by the supervising officer on duty, which must include the details of the request and the subject's refusal.

Efforts to Secure Voluntary Compliance

P.C. § 298.1(c)(1)(C), (2)(C): The use of force must be preceded by efforts to secure voluntary compliance.

Videotaping of “Cell Extractions”

P.C. § 298.1(c)(1)(D), (2)(D): If the use of force includes a jail "cell extraction," the extraction shall be videotaped.

Blood Withdrawals in a Medically Approved Manner

P.C. § 298.1(b)(2): The withdrawal of blood shall be performed in a medically approved manner in accordance with the requirements of P.C. § 298(b)(2) (above).

Expungement of Data

P.C. § 299: Expungement of Data.

Confidentiality Requirements

P.C. § 299.5: Confidentiality requirements and permitted disclosures.

Dissemination of Information to Law Enforcement Agencies

P.C. § 299.6: Dissemination of information to law enforcement agencies:

(a) Sharing or dissemination of population database or data bank information, DNA profile or forensic identification database or data bank information, analytical data and results generated for forensic identification database and data bank purposes, or protocol and forensic DNA analysis methods and quality assurance or quality control procedures, may be made with:

(1) Federal, state or local law enforcement agencies.

(2) Crime laboratories, public or private, that serve federal, state and local law enforcement agencies, that have been approved by the Department of Justice.

(3) The attorney general's office of any state.

(4) Any state or federally authorized auditing agent or board that inspects or reviews the work of the Department of Justice DNA Laboratory for the purpose of ensuring that the laboratory meets described standards.

(5) Any third party DOJ deems necessary to assist the department's crime laboratory with statistical analyses of population databases, or the analyses of forensic protocol, research methods, or quality control procedures, or to assist in the recovery or identification of human remains for humanitarian purposes, including identification of missing persons.

(b) The population databases and data banks of the DNA Laboratory may be made available to and searched by the FBI and any other agency participating in the FBI's CODIS System or any other national or international law enforcement database or data bank system.

(c) The Department of Justice may provide portions of biological samples (as described) to local public law enforcement DNA laboratories for identification purposes provided that the privacy provisions are followed, and if each of the following conditions are met:

(1) The procedures used for handling of specimens and samples and the disclosure of results are as established by DOJ pursuant to P.C. §§ 297, 298 and 299.5.

(2) The methodologies and procedures used for DNA or forensic identification analysis are compatible with those established by DOJ pursuant to P.C. § 299.5(i), or otherwise are determined by DOJ to be valid and appropriate for identification purposes.

(3) Only tests of value to law enforcement for identification purposes are performed and a copy of the results of the analysis are sent to DOJ.

(4) All provisions concerning privacy and security are followed.

Disposal of Samples

P.C. § 299.7: Disposal of samples.

Construction and Severability

P.C. §§ 300 et seq.: Construction and severability.

Case Law

Case Law:

The provisions of these statutes (formerly, P.C. § 290.2), requiring the providing of the listed samples, are constitutional. (People v. King (2000) 82 Cal.App.4^th 1363.)

The new provisions replacing P.C. § 290.2 (P.C. §§ 295 et seq.) have similarly been held to be constitutional. (Alfaro v. Terhune (2002) 98 Cal.App.4^th 492.)

The taking of blood samples from prison inmates, parolees and probationers for the purpose of completing a federal DNA database, is lawful. (United States v. Kincade (9^th Cir. 2004) 379 F.3^rd 813.)

See also United States v. Lujan (9^th Cir. 2007) 504 F.3^rd 1003; upholding the federal "DNA Analysis Backlog Elimination Act of 2000," 42 U.S.C. §§ 14135-14135e, when challenged on the basis that the Act violates the Fourth Amendment, the Ex Post Facto Clause, that it is a "Bill of Attainder, and that it contravenes constitutional "separation of powers" restrictions, when challenged by a federal felon who, when the requirement that she provide a DNA sample was imposed, was on supervised release.

Similarly, further amendment to this legislation by passage of the "Justice for All Act of 2004," expanding the DNA collection requirements to all federal felonies, crimes of violence, and all sexual abuse crimes, where the defendant is on probation, parole or supervised release, is constitutional. (United States v. Kriesel (9^th Cir. 2007) 508 F.3^rd 941.)

The amendments to P.C. § 296(a)(1), providing for the mandatory collection of DNA samples from anyone convicted of a felony offense, do not violate a defendant's Fourth (Search and Seizure) or Fourteenth (Equal Protection and Due Process) rights, and is not an Ex Post Facto violation despite being enacted after the date of defendant's offense. (People v. Travis (2006) 139 Cal.App.4^th 1271; felony DUI case.)

The "Kelly/Frye" (People v. Kelly (1976) 17 Cal.3^rd 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013.) standard does not apply to a DNA data base search used to identify a possible suspect. Requiring inmates to supply a DNA sample, even though not a criminal suspect at the time of the taking of the sample, is a constitutional "search" pursuant to P.C. § 295. (People v. Johnson (2006) 139 Cal.App.4^th 1135.)