AMENDED IN ASSEMBLY FEBRUARY 23, 2023
california legislature—2023–24 regular session
ASSEMBLY BILL No. 93
Introduced by Assembly Member Bryan
January 9, 2023
An act to add Section 833.6 to the P enal Code, relating to criminal law.
legislative counsel’s digest
AB 93, as amended, Bryan. Criminal procedure: consensual searches.
Existing law describes search warrants and enumerates the grounds upon which a search w arrant may be issued, including, among other grounds, when the property or things to be seized constitute e vidence showing that a felon y has been committed. Existing la w authorizes a peace officer to conduct a search without a w arrant if the y 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.
This bill would prohibit a peace officer or law enfor cement agency from conducting a warr antless search of a vehicle , person, or their effects, based solely on a person’s consent, as specified. The bill would specify that consent to conduct a sear ch is not lawful justification for a search.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
98 The people of the State of California do enact as follows:
line 1 SECTION 1. The Le gislature finds and declar es all of the line 2 following:
line 3 (a) The people have a right to be secur e in their per sons and line 4 effects a gainst unr easonable seizur es and sear ches. Sear ch line 5 warrants may not be issued except on probable cause, supported line 6 by oath or affirmation, particularly describing the place to be line 7 searched and the persons and things to be seized. line 8 (b) Nevertheless, every year, law enforcement agencies conduct line 9 tens of thousands of searches of people in California that are based line 10 not on any warrant, probable cause, nor even any factual basis to line 11 suspect a crime , but merely on the purported consent to sear ch line 12 given by a person confronted on the street by a police officer. line 13 (c) Data and r esearch make clear that suc h searches should line 14 not be considered truly consensual. In data reported to the state, line 15 officers report that 98.5 percent of individuals consent to a search line 16 when asked. Social psychology research indicates that the consent line 17 to search that people give when ask ed by an authority figur e is line 18 not truly voluntary due to power dynamics, particularly with line 19 vulnerable populations. In California, policing agencies reported line 20 most frequently subjecting youth 10 to 17 years of age to searches line 21 based solely on purported consent.
line 22 (d) Data and r esearch show that these factually baseless line 23 searches are not beneficial for public safety, because searches of line 24 people and vehicles in whic h the only le gal justification for the line 25 search is the per son’s purported consent have very low r ates of line 26 discovering e vidence of crime . Though police officer s perform line 27 consent-only searches in stops of Blac k and Hispanic or Latine line 28 people more frequently, they are also least likely to find contraband line 29 or evidence during those searches.
line 30 (e) Considering the race of an individual to any de gree when line 31 deciding whether to conduct additional actions during a stop, line 32 including consensual sear ches or asking questions, violates line 33 California law prohibiting racial or identity pr ofiling. However, line 34 data and research show that giving officers the discretion to seek line 35 factually baseless searches based on purported consent leads to line 36 disparate stops and sear ches of Blac k and Hispanic or Latine line 37 individuals. State stop data show that when consent searches are line 38 performed, the underlying reason for the initial police contact is 98 — 2 — AB 93
line 1 more likely to be traffic enforcement for people of color than it is line 2 for Caucasian people, raising the concern that consent sear ches line 3 incentivize racially biased pretextual stops. Black individuals are line 4 4 times as likely, Hispanic or Latine individuals 2.4 times as likely, line 5 and Multir acial individuals 2.2 times as lik ely to be ask ed for line 6 consent to search during a traffic stop than Caucasian individuals. line 7 (f) Increased police contacts including sear ches can have a line 8 negative impact on public health and safety, with Black individuals line 9 who have been stopped and those that live in communities where line 10 such stops fr equently occur r eporting higher le vels of anxiety , line 11 trauma, post-traumatic stress disorder, and depression along with line 12 other ne gative health consequences, including tr auma-induced line 13 sleep deprivation in youth who ar e stopped or vicariously line 14 experience abusive police behaviors. It may also undermine public line 15 faith in the institution of policing , with r esearch finding that line 16 individuals perceive stops for minor infractions that lead to officers line 17 asking additional questions, suc h as for consent to sear ch, as line 18 illegitimate uses of police authority.
line 19 SECTION 1.
line 20 SEC. 2. It is the intent of the Le gislature to enact legislation line 21 to prohibit officers from requesting consent to conduct a search if line 22 the officer does not suspect criminal acti vity. ensure the right of line 23 the people to be secure in their persons and effects against police line 24 searches based on purported consent rather than on an evidentiary line 25 basis.
line 26 SEC. 3. Section 833.6 is added to the Penal Code, to read:
line 27 833.6. (a) The consent of a person given to a peace officer to line 28 conduct a sear ch shall not constitute lawful justification for a line 29 search. A warrantless search conducted solely on the basis of a line 30 person’s consent is a violation of that per son’s rights under this line 31 section.
line 32 (b) A peace officer shall not seek consent to conduct a line 33 warrantless search of a vehicle, person, or their effects. line 34 (c) A law enforcement agency shall not authorize a peace officer line 35 to conduct a search in violation of this section. line 36 (d) This section shall not be construed to limit the authority of line 37 a peace officer to conduct a sear ch based on pr obable cause, a line 38 valid warrant, or another legal basis that is not consent.
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98 AB 93 — 3 —