NEW LAW PERMITS ISSUANCE OF SEARCH WARRANT TO ENTER HOME
TO SEIZE FIREARMS AFTER TAKING “5150” INTO PROTECTIVE
CUSTODY OUTSIDE THE HOME
December 18, 2009
In response to the ruling in People v. Sweig, 167 Cal. App. 4th 1145 (Cal. App. 3d Dist. 2008), Sacramento has passed AB 532, effective January 1, 2010. Sweig held that the law did not allow officers to go into the home of someone taken as “5150” to retrieve weapons believed or known to be in the home, nor to secure a warrant to enter the premises, if the person was taken into custody outside the home.
Section 8102 of the Welfare and Institutions Code requires the temporary seizure of firearms from a mentally disordered person who is a threat to him/herself or others. However, under these circumstances, law enforcement officers could not enter the home to seize firearms, absent either consent or exigent circumstances, even they knew weapons were in the home. Additionally, there was no authorization for a court to issue a search warrant, which the Sweigcourt called a “flaw in the statutes.”
As such, AB 532 was passed, amending Penal Code section 1524, and will now authorize issuance of a search warrant which will permit entry into the home. The Sweig court reasoned that “the Legislature should have authorized the issuance of a search warrant to do so (by amending Pen. Code, § 1524)… It did not do so.”
The June 16, 2009 Senate Committee on Public Safety’s Report on AB 532 said: “It is the intent of the Legislature in enacting this act to address the holding in People v. Sweig … and the court’s suggestion that the Legislature ‘address the statutory flaw’ highlighted in that case.”
The law has also been amended to allow issuance of a search warrant to temporarily seize firearms or other deadly weapons at the scene of a person arrested in connection with certain domestic violence incidents involving a threat to human life or a physical assault.
HOW THIS AFFECTS YOUR AGENCY
Officers will now be able to follow though and secure weapons of persons taken into custody as “5150,” who were seized outside of their homes, in accordance with Welf. & Inst. Code §8102. It is important, however, that officers be made aware of the fact that they must first obtain a warrant, which can now be done.
This was an unusual situation where a “gap” existed in the law. Prior to this amendment, there was no way for law enforcement to secure such a warrant since it was not included in the law as justification for the issuance of such a warrant. Through the efforts of various law enforcement associations, this was brought to the attention of the Legislature and the needed changes were made.