Editorial by Robert Phillips, Deputy District Attorney (Ret).
Special Attention Prosecutors & Law Enforcement Investigators / Patrol Officers
**UPDATED 06/052023: From a subscriber: "The Assembly just took up AB 793. The author announced amendments that will limit its provisions only to reproductive health care and gender affirming care. The amendments will be taken in the Senate. With those amendments we won't have any other concerns. This is a significant win for law enforcement." And in an even more stunning development, AB93 (the bill aimed at banning consent as a valid basis for searches) has died. **
I recently briefed the Second District Court of Appeal (Div. 7) case of People v. Meza (Apr. 13, 2023) 90 Cal.App.5th 520, where the Appellate Court ruled unconstitutional one of the earlier attempts by Los Angeles County Sheriff’s Deputies to use a “geofence” warrant to identify two killers. Despite the Fourth Amendment violations, the convictions of both defendants were upheld due to the deputies’ “good faith” as they experimented with something for which there was little or no precedent. (See California Legal Update, Vol 28, #5; May 6, 2023, or www.legalupdates.com.) The primary conclusion in Meza was that the warrant as written violated a number of constitutional rules on “particularity” and “scope,” giving the officers too much unfettered discretion in the information being sought.
Well, as pointed out to me by a person well situated in California’s legal system (who wishes to remain anonymous), the constitutional requirement as described in Meza (and other cases) that a geofence warrant must be limited in particularity and scope wasn’t enough for California Assembly Member Mia Bonta (D). Ms. Bonta has introduced a bill, AB 793, that if enacted, will outlaw geofence warrants altogether.
AB 793 seeks to add four new Penal Code sections; P.C. §§ 1546.8 to 1546.83. These sections in general prohibit (1) any governmental agency from seeking, (2) any court from approving or enforcing, (3) any business from complying with a request for, and (4) anyone from using the results of, a geofence warrant. (P.C. § 1546.81.) Referred to in this new legislation as a “Reverse-keyword demand” and a “Reverse-location demand” (P.C. § 1546.81(d) & (e), respectively), the new sections provide for the suppression and the destruction of any information that might result from the use of a geofence warrant (P.C. § 1546.82.), as well as for a violator’s civil liability. (P.C. § 1546.83.)
Interestingly, Ms. Bonta’s concerns here—at least from what she wrote into her bill—is not that police officers will abuse geofence warrants to the detriment of criminals (as in Meza), but rather that they might be used to identify persons seeking either an abortion or “gender-affirming care.” Specifically, the Legislature’s stated purposes as described in its declaration accompanying this new legislation include the following (Italics added):
(a) California is proud to be a safe haven for reproductive health care access, gender-affirming care, and digital privacy, and has long been at the forefront of protecting these fundamental rights.
(b) When it comes to protecting reproductive and LGBTQI rights and safety, our digital trail is highly revealing and must be safeguarded. With states across the country passing antiabortion and antitransgender legislation, including laws that criminalize people for accessing care or helping people access care, it is vital that California continue to protect against digital tracking of vulnerable people seeking health care.
(g) These mass surveillance demands have been used to track the locations and identities of people protesting police violence and could easily be used by local law enforcement in states across the country to request the names and identities of people whose digital trail shows they have visited California abortion or gender-affirming care providers or even searched for revealing keywords online.
Where the point of the Court’s decision in Meza, a criminal homicide case, was that the geofence warrant as used was too broad, allowing the officers too much discretion, Ms. Bonta seeks legislation that is even broader, throwing the baby out with the bathwater, so to speak. Nevertheless, as written, this new legislation, if passed, will outlaw the use of geofence warrants for any purpose, whether to protect abortion seekers or murderers.
Adding insult to injury, also in the works is AB 93 via which Assembly Member Isaac G. Bryan (D) seeks to add new Penal Code § 833.6. This new statute, if passed, seeks to eliminate a police officer’s legal right to ask for a consensual search. In its current form, this new restriction on a police officer’s authority provides as follows (with Italics added.):
(a) The consent of a person given to a peace officer to conduct a search shall not constitute lawful justification for a search. A warrantless search conducted solely on the basis of a person’s consent is a violation of that person’s rights under this section.
(b) A peace officer shall not seek consent to conduct a warrantless search of a vehicle, person, or their effects.
(c) A law enforcement agency shall not authorize a peace officer to conduct a search in violation of this section.
(d) This section 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.”
The reasoning behind this intrusion on the otherwise lawful authority of any California peace officer, supported by piles of case law, is Mr. Bryan’s belief that consents are never really voluntary; i.e.: “(S)uch searches should not be considered truly consensual.” To allow police officers to ask for a consent to search (per Mr. Bryan) unfairly gives “police officers the discretion to seek factually baseless searches based on purported consent.” This, Mr. Bryan further alleges, “leads to disparate stops and searches of Black and Hispanic or Latine individuals.” (“Latine,” by the way, is in fact a word. Googling it, we’re told that the word was “created by LGBTQIA+ Spanish speakers, us(ing) the letter ‘e’ to illustrate gender inclusivity within existing Spanish pronunciation.”)
Both of the above bills are still crawling through the Legislature via their own respective paths. If ultimately passed, both seek to eliminate by legislative fiat important law enforcement tools which, having been analyzed multiple times by the courts, are repeatedly found—when properly applied—to be constitutional. When not properly applied, the Exclusionary Rule already provides a remedy. Why the California Legislature thinks it needs to tighten the noose tighter than it constitutionally needs to be is unknown, other than perhaps to support the current trend towards enlarging criminals’ rights while further hampering law enforcement in their efforts to protect the law-abiding public in general. Do you think maybe it’s time to draw the line?
This might be a good time for your associations to reach out to your State representatives and oppose AB793 and AB93.