SONENSHINE, J. I concur. In the particular facts before us, exclusion is not mandated by the United States Supreme Court. (Winston v. Lee (1985) 470 U.S. 753 [84 L.Ed.2d 662, 105 S.Ct. 1611]; Rochin v. California [310](1952) 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.2d 1396].) And, of course, we are bound by those decisions. (See People v. Neer (1986) 177 Cal.App.3d 991, 999-1001 [223 Cal.Rptr. 555].)
Appendix A
See next page.
[311]Appendix A
§ 4030. Strip and body cavity searches; limitation; application; definitions; conditions; damages
(a) The Legislature finds and declares that law enforcement policies and practices for conducting strip or body cavity searches ^.of detained persons vary widely throughout California. Consequently, some people have been arbitrarily subjected to unnecessary strip and body cavity searches after arrests for minor misdemeanor and infraction offenses. Some present search practices violate state and federal constitutional rights to privacy and freedom from unreasonable searches and seizures.
It is the intent of the Legislature in enacting this section to protect the state and federal constitutional rights of the people of California by establishing a statewide policy stnctly limiting strip and body cavity searches.
(b) The provisions of this section shall apply only to prearraignment detainees arrested for infraction or misdemeanor offenses and to any minor detained pnor to a detention hearing on the grounds that he or she is a person described in Section 300, 601, or 602 of the Welfare and Institutions Code alleged to have committed a misdemeanor or infraction offense. The provisions of this section shall not apply to any person in the custody of the Director of the Department of Corrections or the Director of the Youth Authority.
(c) As used in this section, “strip search” means a search which requires a person to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of such person.
(d) As used in this section:
(1) “Body cavity” only means the stomach or rectal cavity of a person, and vagina of a female person.
(2) “Visual body cavity search” means visual inspection of a body cavity.
(3) “Physical body cavity search” means physical intrusion into a body cavity for the purpose of discovering any object concealed in the body cavity.
(e) Notwithstanding any other provision of law, including Section 40304.5 of the Vehicle Code, when a person is arrested and taken into custody, that person may be subjected to patdown searches, metal detector searches, and thorough clothing searches in order to discover and retrieve concealed weapons and contraband substances prior to being placed in a booking cell.
(0 No person arrested and held in custody on a misdemeanor or infraction offense, except those involving weapons, controlled substances or violence nor any minor detained prior to a detention hearing on the grounds that he or she is a person described in Section 300, 601 or 602 of the Welfare and Institutions Code, except for those minors alleged to have committed felonies or offenses involving weapons, controlled substances or violence, shall be subjected to a strip search or visual body cavity search pnor to placement in the general jail population, unless a peace officer has determined there is reasonable suspicion based on specific and articulable facts to believe such 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 or both may he conducted without the prior written authonzation of the supervising officer on duty. The authorization shall include the specific and articulable facts and circumstances upon wmch the reasonable suspicion determination was made by the supervisor.
(g) (1) Except pursuant to the provisions of paragraph (2), no person arrested and held in custody on a misdemeanor or infraction offense not involving weapons, controlled substances or violence, shall be confined in the general jail population unless all of the following are true:
(1) The person is not cited and released.
(ii) The person is not released on his or her own recognizance pursuant to Article 9 (commencing with Section 1318) of Chapter l of Title 10 of Part 2.
(iii) The person is not able to post ball within a reasonable lime not less than three hours.
(2) No person may be housed in the general jail population poor to release pursuant to the provisions of paragraph (!) unless a documented emergency exists and there is no reasonable alternative to such placement. Such person shall be placed in the general population only upon prior written authorization documenting the specific facts and circumstances of the emergency. The written authonzation shall be signed by the uniformed supervisor of the facility or by a uniformed watch commander. Any person confined in the general jail population pursuant to paragraph (1) shall retain all rights to release on citation, his or her own recognizance, or bail which were preempted as a consequence of the emergency.
(h) No person arrested on a misdemeanor or infraction offense, nor any minor described in subdivision (b), 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.
(i) A copy of the prior wntten authonzation required by subdivisions (0 and (g) and the search warrant required by subdivision (h) shall be placed in the agency's records and made available, on request, to the person searched or his or her authorized representative. With regard to any strip, visual or body search, the time, date and place of the search, the name and sex of the person conducting the search and a statement of the results of the search, including a list of any items removed from the person searched, shall be recorded in the agency’s records and made available, upon request, to the person searched or his or her authorized representative.
(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.
(k) A physical body cavity search shall be conducted under sanitary conditions, and only by a physician, nurse practitioner, registered nurse, licensed vocational nurse or emergency medical technician Level I! licensed to practice in this state. Any physician engaged in providing health care to detainees and inmates of the facility may conduct physical body cavity searches.
(/) All persons conducting or otherwise present dunng a strip search or visual or physical body cavity search shall be of the same sex as the person being searched, except for physicians or licensed medical personnel.
(in) All strip, visual and physical body cavity searches shall be conducted m an area of privacy so that the search cannot be observed by ¡>crsons not participating in the search. Persons are considered to be participating in the search if their official dunes relative to search procedure require them to he present at the time the •eareh is conducted.
[312](n) A person who knowingly and willfully authorizes or conducts a strip, visual or physical body cavity search in violation of this section is guilty of a misdemeanor.
(o) Nothing in this section shall be construed as limiting any common law or statutory rights of any person regarding any action for damages or injunctive relief, or as precluding the prosecution under another provision of law of any peace officer or other person who has violated this section.
(p) Any person who suffers damage or harm as a result of a violation of this section may bring a civil action to recover actual damages, or one thousand dollars ($1,000), whichever is greater. In addition, the court may, in its discretion, award punitive damages, equitable relief as it deems necessary and proper, and costs, including reasonable attorney's fees.