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2014 Edition Derald D. Hunt and Devallis Rutledge

2014 Edition Derald D. Hunt and Devallis Rutledge. LAWS OF ARREST. Chapter 7. California Criminal Law Concepts 2014 Edition. ARREST DEFINED. Penal Code 834 defines an arrest: The taking of a person into custody, in a case and manner authorized by law

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2014 Edition Derald D. Hunt and Devallis Rutledge

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  1. 2014 Edition Derald D. Hunt and Devallis Rutledge

  2. LAWS OF ARREST Chapter 7 California Criminal Law Concepts 2014 Edition

  3. ARREST DEFINED • Penal Code 834 defines an arrest: • The taking of a person into custody, in a case and manner authorized by law • An arrest may be made by a peace officer or by a private person • Penal Code 835 defines how an arrest can be made: • By actual restraint, or • Submission into custody • The officer may use reasonable force to effect the arrest 7.1

  4. ENCOUNTERS AND DETENTIONS • Police contacts with citizens can be categorized in the following three ways: • Consensual Encounters: This contact requires no legal standard of suspicion. • Detentions: This is a seizure under the Fourth Amendment and requires a minimum of “reasonable suspicion.” • Arrests: This is also a seizure under the Fourth Amendment and requires a minimum legal standard of “probable cause.” 7.2

  5. ENCOUNTERS AND DETENTIONS, Continued • A “search” occurs when governmental action infringes an expectation of privacy that society is prepared to consider reasonable (US v. Jacobsen, 466 US 109) • A “seizure” of property occurs when there is some meaningful interference by the government with an individual’s possessory interests in that property (Soldal v. Cook County, 121 L.Ed. 2d 450) 7.2

  6. ENCOUNTERS AND DETENTIONS, Continued A person has been “seized” within the meaning of the Fourth Amendment where the government by show of force or other assertion of official authority, communicates to an individual that he or she is not free to disregard police presence and go about his or her business, and the individual is thereby caused to submit (Florida c. Bostick, 502 US 429; California v. Hodari D., 499 US 621) 7.2

  7. ENCOUNTERS AND DETENTIONS, Continued Under the court-created “exclusionary rule,” any evidence resulting from an unreasonable search or seizure is subject to exclusion from a defendant’s trial. This means that every seizure (including both “detentions” and “arrests”) must be justified by a corresponding level of suspicion in order to be held constitutionally reasonable for exclusionary rule purposes. 7.2

  8. CONSENSUAL ENCOUNTER • When both the police and the person enter into a “consensual” contact • Police are NOT limited by Constitution during this contact • Officers do not have to demonstrate meeting a legal standard here • No need to show that the officer has established “reasonable suspicion” or “probable cause” that a crime has been committed. • EX: Officers asking a person if they would mind stepping aside and answering a few questions. 7.2

  9. CONSENSUAL ENCOUNTER, Continued PLEASE REMEMBER: • During a consensual encounter, the person is free to leave, unless you can meet the legal standard of “reasonable suspicion” or probable cause” to SEIZE them further • The person does not have to talk with you about an incident or possible crime if they don’t want to • Under narrow circumstances a person may have to provide you with their name 7.2

  10. DETENTIONS • The Fourth Amendment of the U.S. Constitution uses the broader term known as SEIZURE • A detention is a seizure and requires an officer to justify their government use of force by a legal standard. This standard is less than “probable cause”; a detention only requires “reasonable suspicion.” Terry v. Ohio, 1968 • The officer must be able to articulate (or explain) their suspicion that the person may be involved in criminal activity • The two most common examples of detentions are the pedestrian stop and the traffic stop. 7.2

  11. TRAFFIC STOPS • The traffic stop is a temporary detention of a vehicle and is based on reasonable suspicion • Probable cause or “PC” is not a correct legal standard for such a stop under the Fourth Amendment • What makes a traffic stop a form of a detention is the display of red/blue lights or sirens (i.e., a show of force) that makes the reasonable person feel they are not free to continue on their way 7.2

  12. ARTICULABLE SUSPICION • The Fourth Amendment of the U.S. Constitution requires searches and/or seizures to be “reasonable” • An officer must be able to articulate (or explain) facts and inferences that justify their actions • Factors that may contribute to articulable suspicion include: • An officer’s observations of a suspect’s activity • Time of day • Nature of the location • Information received from other sources • Inferences from a trained and experienced police officer that would allow the officer to draw a reasonable conclusion 7.2

  13. LENGTH OF DETENTION • Detentions are temporary; they cannot be prolonged any longer than is reasonably necessary to accomplish the purpose of the initial stop • If new facts become evident, you may extend the detention • If, during your detention, your suspicions are dispelled, you must release the person • If your detention produces “probable cause”, you may arrest the person 7.2

  14. DETENTIONS & SEARCHES • Terry v. Ohio, 392 U.S. 1 (1968) • During a temporary detention, an officer may conduct a cursory “pat-down” search • The search is limited to the outer clothing • The officer must have articulable suspicion that the person is armed and/or dangerous • An officer may use this same principle to permit a cursory search of a person’s passenger compartment of the vehicle during a traffic stop 7.2

  15. VEHICLE OCCUPANTS During a lawful traffic stop, police are permitted to: • Routinely order all occupants out of a vehicle and have them remain in a neutral location • This order need not be justified by any particular suspicion of criminal activity • The officer has the right to inspect the VIN number • The officer has the right to retrieve a person’s driver license and/or registration from the vehicle 7.2

  16. PEACE OFFICER DEFINED • PC 830.1 (Defines a peace officer) • Any person who comes within the provision of the California Penal Code • Meets all standards imposed by law on a peace officer • A peace officer includes: • Sheriffs (deputy sheriffs) • Police officers • Marshals • Constables • Inspectors • Investigators 7.3

  17. PEACE OFFICER STATUS PC 830.2-10 Primary Duty / Authority Includes: • California Highway Patrol • University/State College Police • Correctional, Probation & Parole Officers • Reserve Officers & Deputies • Fire/Arson Investigators • Miscellaneous Police • State agencies like the DMV, ABC, Forestry, Labor Standards, Health and Social Services, Insurance, etc. 7.4

  18. PEACE OFFICER STATUS, Continued • Peace Officer’s are required to wear a badge or name plate (PC 830.10) • A Peace Officer is in fact an officer 24 hours a day and may be called upon on or off duty (AG Memo Opinion 21, 1960) • Members of a police department are authorized to carry concealed firearms (or other weapons) inside or outside the jurisdiction for which they are employed 7.4

  19. THE FOURTH AMENDMENT The right of the people to be secure in their person, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized 7.5

  20. ARRESTS WITHOUT WARRANTS • The majority of arrests by law enforcement are made without warrants • These arrests must be based on the Fourth Amendment standard of probable cause and the accused must be taken before a judge or magistrate without unnecessary delay • To arrest a person in their home, an officer must do so: • By use of a warrant • Pursuant to a probation/parole condition • Under exigent circumstances 7.5

  21. PEACE OFFICERPOWERS OF ARREST PC 836(a) • When the officer has probable cause that a public offense has been committed in the officer’s presence • When a person to be arrested has committed a felony, although not in the officer’s presence • When the officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony has, in fact, been committed 7.5

  22. POWERS OF ARREST, Continued • Officer’s Presence (Defined): Relates to an officer’s senses (i.e., sight, hearing, taste, touch and smell) • Public Offense (Defined): includes felonies, misdemeanors and infractions • There shall be no civil liability or cause of action against an officer within the scope of his/her authority for false arrest… (PC 836.5 (b)) 7.5

  23. DUTY FOLLOWING ARREST • An officer shall take an arrested person before a judge/magistrate without delay (PC 849(a)) • A peace officer may release a person from custody any person arrested without a warrant whenever: • There are insufficient grounds for making a criminal complaint • The person was arrested for intoxication only • The person was arrested for being under the influence of a controlled substance or drug and the person is delivered to a hospital or treatment center (PC 849(b)) 7.6

  24. PRIVATE PERSON ARRESTS PC 837: A private person may arrest another: • For a public offense committed or attempted in his/her presence • When a person arrested has committed a felony, although not in his/her presence • When a felony has been in fact committed, and s/he has reasonable cause for believing the person arrested to have committed it 7.7

  25. PRIVATE PERSON ARRESTS , CONTINUED • Domestic Violence Call: Officer required to make a good faith effort to inform the victim of their right to make a private person arrest • Presence (Defined): Same for the private person as for the officer (the use of senses) • Justified in using only reasonable force to make the arrest • Not justified to use lethal force in making arrests for crimes against property • After an arrest, the private person must take person before a magistrate or peace officer without unnecessary delay 7.7

  26. DUTY OF OFFICER TO RECEIVE ARREST • PC 142: Any peace officer with authority to arrest who willfully refuses to receive or arrest a person is guilty of a crime • This section does not apply to arrests made by private persons (PC 142 [c]) • To avoid civil liability, courts have insisted that probable cause support any arrest made or accepted by a peace officer (including those made by a private person) 7.7

  27. MISDEMEANOR CITATIONS An officer may use the written notice to appear: • For any misdemeanor offense which he has reasonable cause to believe the person to be arrested has committed in his presence, or • For any misdemeanor offense in which a private person made the arrest and delivered the arrested person to the officer The citation-and-release procedure does not apply to most violent and serious felonies, nor to crimes involving witness intimidation, criminal threats, family abuse and stalking. 7.8

  28. PROBABLE CAUSE TO ARREST • Under the test of Fourth Amendment “reasonableness”, an arrest must be based on “probable cause” • Probable Cause (Defined): A state of facts as would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime People v. Kilvington, 104 Cal. 86 • Courts look at two aspects of reasonableness: • PC to believe that a crime was prima facie committed based on the corpus delicti • PC to believe that the person arrested is the person who committed the crime 7.9

  29. PROBABLE CAUSE TO ARREST, Continued In making a determination of probable cause, the relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attached to particular types of noncriminal acts (Illinois v. Gates, 462 US 213) Specific fact – not hunches – are the requirement of the probable cause standard 7.9

  30. PROBABLE CAUSE FACTORS • The difference between articulable suspicion and probable cause is not the nature of the underlying information, but in the amount • Factors of establishing PC include: • Suspect’s activity • Attempts of concealment • Flight • Manner of dress • Location • Time of day or night • Prior criminal record • Number of suspects • Informant information • Suspect’s appearance • Patterns of activity • Facts gained by officers 7.9

  31. ENTRAPMENT • Entrapment: An act by the police of inducing a person to commit a crime not contemplated by the suspect • The reason for allowing entrapment as a defense is to deter police misconduct • The defense should focus on police conduct and not on the defendant’s conduct • The current test is now whether the conduct of a law enforcement officer is likely to induce a normally law abiding person to commit the offense 7.10

  32. ENTRAPMENT, CONTINUED • Officers may set reasonable traps in an effort to apprehend criminals • Officers may provide opportunity for a crime’s commission and may use decoys to participate in the crime • Use of deception is allowed • Use of informants is essential to detect and gather evidence in a crime. Informants may include: • Minors aged 13-18 (under court order) • In-custody informants (must disclose to jury) • Informants wired for sound 7.10

  33. ACCOMPLISHING THE ARREST • An arrest is made by: • Actual restraint • Submission into custody • Person may use whatever force may be necessary for the arrest as long as such means are reasonable • A person is never justified in using deadly force on one guilty of a misdemeanor in order to effect the arrest (unless in self-defense to counter deadly force) 7.11

  34. ACCOMPLISHING THE ARREST, CONTINUED • PC 841: The person making the arrest must inform the person being arrested: • Intention to arrest • Cause of the arrest • Authority to arrest • PC 835(a): Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to: • Effect the arrest • Prevent escape • Overcome resistance 7.11

  35. RESISTING ARREST • PC 834(a): If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest • PC 148.9: It is a misdemeanor to give false identification to a peace officer when lawfully detained/arrested, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer 7.12

  36. RESISTING ARREST, CONTINUED Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician…in the performance of his or her office or employment, when no other punishment is prescribed, is punishable by a fine…or by imprisonment in the county jail…or by both a fine and imprisonment PC 148(a) 7.12

  37. THE MIRANDA ADMONISHMENT • Fifth Amendment: “…no person shall be compelled in any criminal case to be a witness against himself” • In Miranda v. Arizona (384 U.S. 436) the Supreme Court held that compulsion is inherent (built-in) in the process of custodial interrogation • The stress of a police-dominated atmosphere tends to undermine a person’s free will to speak • Prosecutors may not use any statement made by a criminal defendant to prove guilt resulting from a custodial interrogation 7.13

  38. MIRANDAPROCEDURES FOR ADMONISHMENT • You have the right to remain silent • Anything you say may be used against you in court • You have the right to have a lawyer with you before and during questioning • If you cannot afford to hire a lawyer, one will be appointed for you without charge before questioning, if you wish 7.13

  39. MIRANDASTEPS FOLLOWING ADMONISHMENT • Before the prosecution can offer a suspect’s responses to custodial interrogation into evidence, the prosecutor has the burden of proving the suspect: • Was timely and properly advised • Understood his/her rights • Voluntarily waived his/her rights • If the suspect invokes his/her rights, any custodial statement obtained thereafter will be inadmissible, unless the suspect initiates further discussion and waiver his/her rights 7.13

  40. MIRANDA WHEN ADMONISHMENT IS REQUIRED • The Miranda admonishment is only required when two elements are present. They are: • Custody, and • Interrogation • Neither custody nor interrogation alone will trigger the need for a Miranda warning. It is only the combination of custody and interrogation together that creates the need for a warning 7.13

  41. MIRANDA WHAT CONSTITUTES CUSTODY? • The ultimate inquiry for custody is whether the person is: • Under formal arrest, or • Restraint equal to a formal arrest California v. Beheler, 463 U.S. 1121 (1983) Stansbury v. California, 511 U.S. 318 (1994) • The critical factor for custody is whether a reasonable person in the suspect’s position would not have felt that he was under arrest at the time the interrogation occurred 7.13

  42. MIRANDA WHAT CONSTITUTES INTERROGATION? • The term interrogation under Miranda refers not only to express questioning but police words or actions that are inherently likely to elicit an incriminating response from the suspect • Typical booking questions would not be subject to the Miranda warning or the exclusionary provisions 7.13

  43. MIRANDA INDEPENDENT STATE GROUNDS People v. May, 44 Cal. 3d 309 (1988) • The “Truth-in-Evidence” provision of Proposition 8 rescinds the state-grounded exclusionary rule • Violations of Miranda that are inconsistent with state standards will not be excluded from a criminal court proceeding if they meet federal rules 7.13

  44. MIRANDA OTHER RULES • It is not desirable to “over-Mirandize” A Miranda warning is not required before each custodial interrogation • WIC 625: Created a statutory duty by police to advise a minor of certain rights consistent with 5th/6th Amendment constitutional rights when a minor is taken into temporary custody (Admissibility is determined under constitutional standards) • Regardless of Miranda, a suspect’s volunteered statement are always admissible • The Sixth Amendment right to counsel will be violated if police initiate interrogation of an accused person after he/she has been indicted/arraigned on the case and has requested/obtained an attorney 7.13

  45. ARREST PURSUANT TO WARRANT • In order to secure arrest warrants, the courts require an affidavit to accompany the complaint • PC 817: Courts have held that a non-consensual, non-exigent entry into a home to make an arrest requires a warrant People v. Ramey, 16 Cal. 3d 263 (1976) • Warrant Service: • Felony = Anytime day or night • Misdemeanor/Infraction = cannot be made between 10pm and 6am, unless: • Arrest is made without a warrant under PC836/837 • Arrest is made in a public place • Arrest is made when the person is in custody pursuant to a lawful arrest • Arrest is made pursuant to a warrant signed for night service 7.14

  46. ESCAPE, PERSUIT AND RETAKING • Escape – a person who has knowingly been lawfully arrested by a peace officer commits a misdemeanor by escaping or attempting to escape. Becomes a wobbler if force or violence causes serious bodily injury to the peace officer • Fresh Pursuit – means close pursuit or is sometimes called “hot pursuit” of a suspect by a police officer - can be from another state • Bail Fugitive Recovery – a bail agent who apprehends fugitives 7.15

  47. POSSE COMITATUS “Power of the county” When a sheriff or other public officer authorized to execute process… may command as many able-bodied inhabitants of the officer’s county as he or she may think proper to assist him or her in overcoming the resistance, and, if necessary in seizing, arresting, and confining the persons resisting, their aiders and abettors PC 723 7.16

  48. THREATENED OFFENSES • An information may be laid before any of the magistrates mentioned in Section 808, that a person has threatened to commit an offense against the person or property of another. Sometimes known as a “peace bond” PC 701 • Judge may issue an arrest warrant PC 703 • Bail may be required PC 706 7.17

  49. DIPLOMATIC IMMUNITY The Vienna Convention on Diplomatic Relations provides immunities from arrest and prosecution for specified members of a foreign country’s diplomatic officers and their family members Diplomatic immunity does not prevent: • traffic tickets • police intervention to keep the peace or prevent injury or serious crime 7.18

  50. ARRESTED PERSON’S RIGHTS • Within three hours after having been booked a person has the right to make at least three completed phone calls PC 851.5 (Officers subject to civil libility) • Unless otherwise released, must be taken before a magistrate without unnecessary delay PC 825 • Has the right to visitation by an attorney upon request 7.19

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