Criminal Procedure

Week 5

ARREST

• MADE BY POLICE OR PRIVATE CITIZEN

• ARRESTED PERSON TAKEN INTO CUSTODY, IN A CASE AND IN MANNER AUTHORIZED BY LAW (P.C. 834)

• ACTUAL RESTRAINT OR SUBMISSION TO AUTHORITY

ARREST

• A ‘SEIZURE’ UNDER 4TH AND 14TH AMENDMENT AND THEREFORE MUST BE REASONABLE

• ALSO GOVERNED BY CALIFORNIA PENAL CODE

ARREST

• PURSUANT TO A WARRANT

• UNDER SOME CIRCUMSTANCES WITHOUT A WARRANT

ARREST WARRANTS

• PARTICULARLY DESCRIBE PERSON TO BE ARRESTED AND OFFENSE

• BASED ON OATH OR AFFIRMATION SHOWING PROBABLE CAUSE (AFFIDAVIT)

ARREST WARRANT: PROCEDURE

• POLICE AND D.A. PREPARE DOCUMENTATION

• DOCUMENTATION SUBMITTED TO JUDGE FOR “ISSUANCE” OF WARRANT

• IN PERSON• ON PHONE• FAX

AFFIDAVIT--STATEMENT OF PROBABLE CAUSE

• IDENTITY AND EXPERIENCE OF AFFIANT(S)

• FACTS SHOWING COMMISSION OF CRIME

• FACTS CONNECTING SUSPECT TO CRIME

• RELIABILITY OF INFORMANTS

ARRESTS WITHOUT WARRANT--POLICE

• MISDEMEANOR• PROBABLE CAUSE TO BELIEVE MISD.

COMMITTED IN PRESENCE

• FELONY• PROBABLE CAUSE TO BELIEVE FELONY

COMMITTED BY SUSPECT

ARREST BY PRIVATE CITIZEN

• MISDEMEANOR– MISDEMEANOR COMMITTED IN

PRESENCE

• FELONY– PROBABLE CAUSE TO BELIEVE SUSPECT

COMMITTED FELONY– FELONY ACTUALLY WAS COMMITTED

SITUATION

• POLICE HAVE P.C. TO BELIEVE JONES COMMITTED FELONY. THEY ARE NOTIFIED THAT JONES IS AT HOME. THEY GO TO HIS HOME TO ARREST HIM. DO THEY NEED A WARRANT.

KNOCK NOTICE RULE

• PENAL CODE §844 REQUIRES THAT POLICE KNOCK AND ANNOUNCE THEMSELVES BEFORE BREAKING IN.

• SIMILAR FEDERAL RULE

• EXCEPTIONS: DANGER/ FLIGHT/DESTRUCTION OF EVIDENCE

USE OF FORCE

• REASONABLE FORCE TO EFFECT ARREST

• DEADLY FORCE ONLY WHEN THREAT OF DEATH OR GREAT BODILY HARM TO COP OR OTHERS

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, to prevent escape or to overcome resistance.

A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.

West's Ann.Cal.Penal Code § 835a

Timing of Arrest

• No arrest between 10 p.m. and 6 a.m. unless– Warrant has “night time endorsement”– Felony arrest– Public place