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2012 Edition

Derald D. Hunt and Devallis Rutledge

California Criminal Law

Concepts

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LAWS OF ARREST

Chapter 7

California Criminal Law Concepts2012 Edition

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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 arrest7.1

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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.”

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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)

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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)

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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.

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CONSENSUAL ENCOUNTER

When both the police and the person enter into a “consensual” contact

Police are NOT limited by Constitution during this contactOfficers do not have to demonstrate

meeting a legal standard hereo No need to show that the officer has established “reasonable suspicion” or “probable cause” that a crime has been committed.

o EX: Officers asking a person if they would mind stepping aside and answering a few questions.

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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

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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.

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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

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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

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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

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DETENTIONS & SEARCHES Terry v. Ohio, 392 U.S. 1 (1968) During a temporary detention, an officer

may conduct a cursory “pat-down” searchThe search is limited to the outer clothingThe officer must have articulable suspicion

that the person is armed and/or dangerousAn officer may use this same principle to

permit a cursory search of a person’s passenger compartment of the vehicle during a traffic stop7.2

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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 vehicle7.2

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PEACE OFFICER DEFINED

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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

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PEACE OFFICER STATUS

PC 830.2-10 Primary Duty / Authority Includes:

California Highway PatrolUniversity/State College Police Correctional, Probation & Parole OfficersReserve Officers & DeputiesFire/Arson Investigators Miscellaneous Police

State agencies like the DMV, ABC, Forestry, Labor Standards, Health and Social Services, Insurance, etc.7.4

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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 employed7.4

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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

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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

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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

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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))

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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

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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

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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

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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

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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.

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PROBABLE CAUSE TO ARREST

7.9

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

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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

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PROBABLE CAUSE FACTORS

7.9

Prior criminal record

Number of suspects Informant

information Suspect’s

appearance Patterns of activity Facts gained by

officers

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

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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

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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

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ACCOMPLISHING THE ARREST

An arrest is made by:Actual restraintSubmission 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

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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

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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

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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)

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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

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MIRANDA PROCEDURES 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

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MIRANDA STEPS 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

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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

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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 occurred7.13

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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

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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

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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

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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:o Arrest is made without a warrant under PC836/837o Arrest is made in a public placeo Arrest is made when the person is in custody

pursuant to a lawful arresto Arrest is made pursuant to a warrant signed for night

service7.14

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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

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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

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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 7067.17

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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

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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

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LAW ENFORCEMENT AND CIVIL LIABILITY

Typical defenses to civil actions brought against police officers are: Probable cause for the arrest Reasonable force in effecting

arrest Self-defense Coercive interrogation claims

7.20