LD 15 V-4.16.pdf

CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING Basic Course Workbook Series Student Materials Learning Domain 15 Laws of Arrest Version 4.16 THE MISSION OF THE CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING IS TO CONTINUALLY ENHANCE THE PROFESSIONALISM OF CALI...

CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING Basic Course Workbook Series Student Materials Learning Domain 15 Laws of Arrest Version 4.16 THE MISSION OF THE CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING IS TO CONTINUALLY ENHANCE THE PROFESSIONALISM OF CALIFORNIA LAW ENFORCEMENT IN SERVING ITS COMMUNITIES  Basic Course Workbook Series Student Materials Learning Domain 15 Laws of Arrest Version 4.16 © Copyright 2008 California Commission on Peace Officer Standards and Training (POST) All rights reserved. Published1998 Revised August 2001 Revised January 2006 Revised July 2008 Correction June 2017 Correction April 2019 Revised April 2021 Revised April 2022 This publication may not be reproduced, in whole or in part, in any form or by any means electronic or mechanical or by any information storage and retrieval system now known or hereafter invented, without prior written permission of the California Commission on Peace Officer Standards and Training, with the following exception: California law enforcement or dispatch agencies in the POST program, POST-certified training presenters, and presenters and students of the California basic course instructional system are allowed to copy this publication for non-commercial use. All other individuals, private businesses and corporations, public and private agencies and colleges, professional associations, and non-POST law enforcement agencies in-state or out-of- state may purchase copies of this publication, at cost, from POST as listed below: From POST’s Web Site: www.post.ca.gov Go to Ordering Student Workbooks  POST COMMISSIONERS Joyce Dudley – Chair District Attorney Santa Barbara County Rick Braziel – Vice Chair Educator Humboldt State University Alan Barcelona Special Agent California Department of Justice Ingrid Braun Sheriff-Coroner Mono County Sheriff’s Department Barry Donelan Sergeant Oakland Police Department Robert T. Doyle Sheriff Marin County Kelly Gordon Chief Monterey Park Police Department P. Lamont Ewell Public Member Geoff Long Public Member Tina Nieto Chief Marina Police Department James O’Rourke Sergeant California Highway Patrol Batine Ramirez Sergeant Placer County Sheriff’s Department John Marsh Chief Representing Rob Bonta Director of Division of Law Enforcement Attorney General Ex-Officio Member  THE ACADEMY TRAINING MISSION The primary mission of basic training is to prepare students mentally, morally, and physically to advance into a field training program, assume the responsibilities, and execute the duties of a peace officer in society.  FOREWORD The California Commission on Peace Officer Standards and Training sincerely appreciates the efforts of the many curriculum consultants, academy instructors, directors and coordinators who contributed to the development of this workbook. We must also thank the California law enforcement agency executives who allowed their personnel to participate in the development of these training materials. This student workbook is part of the POST Basic Course Training System. The workbook component of this system provides a self-study document for every learning domain in the Basic Course. Each workbook is intended to be a supplement to, not a substitute for, classroom instruction. The objective of the system is to improve academy student learning and information retention and ultimately contribute to you becoming a peace officer committed to safety, and to the communities you will serve. The content of each workbook is organized into sequenced learning modules to meet requirements as prescribed both by California law and the POST Training and Testing Specifications for the Basic Course. It is our hope that the collective wisdom and experience of all who contributed to this workbook will help you, the student, to successfully complete the Basic Course and to enjoy a safe and rewarding career as a peace officer. MANUEL ALVAREZ, Jr. Executive Director  LD 15: Laws of Arrest Table of Contents Topic See Page Preface iv Introduction iv How to Use the Workbook v Chapter 1: Constitutional Protections and the Role of a 1-1 Peace Officer Overview 1-1 Overview of the U.S. and California Constitutions 1-3 Fourth Amendment 1-4 Fifth Amendment 1-6 Sixth Amendment 1-8 Fourteenth Amendment 1-10 Civil Rights Statutes 1-11 Chapter Synopsis 1-15 Workbook Learning Activities 1-17 Chapter 2: Consensual Encounters 2-1 Overview 2-1 Consensual Encounters 2-2 Elevating Consensual Encounters 2-4 Chapter Synopsis 2-6 Workbook Learning Activities 2-7 Continued on next page LD 15: Laws of Arrest i Table of Contents, Continued Topic See Page Chapter 3: Detentions 3-1 Overview 3-1 Detentions 3-3 Reasonable Suspicion for a Detention 3-6 Appropriate Actions During a Detention 3-9 Searches and Seizures During a Detention 3-13 Use of Force/Physical Restraint During a Detention 3-16 Chapter Synopsis 3-17 Workbook Learning Activities 3-19 Chapter 4: Arrests 4-1 Overview 4-1 Probable Cause for Arrest 4-4 Elements of a Lawful Arrest 4-7 Information to an Arrestee 4-9 Warrantless Arrests for Misdemeanors and Felonies 4-11 Warrant Arrests 4-15 Entry into a Dwelling to Make an Arrest 4-17 Private Person Arrests 4-20 Use of Force/Physical Restraint During an Arrest 4-24 Disposition of Arrestees 4-25 Immunity and Statute of Limitations 4-29 Chapter Synopsis 4-32 Workbook Learning Activities 4-35 Continued on next page ii LD 15: Laws of Arrest Table of Contents, Continued Topic See Page Chapter 5: Administration of Miranda Warnings 5-1 Overview 5-1 The Miranda Warning 5-3 When the Miranda Warning is Required 5-4 Waiving or Invoking Miranda Rights 5-8 Exception to the Rule of Miranda 5-15 Chapter Synopsis 5-16 Workbook Learning Activities 5-18 Chapter 6: Crime Scene Interviews and Investigative 6-1 Interrogations Overview 6-1 Crime Scene Interviews 6-3 Investigative Interrogations 6-9 Chapter Synopsis 6-14 Workbook Learning Activities 6-15 Glossary G-1 Continued on next page LD 15: Laws of Arrest iii Table of Contents, Continued This page was left intentionally blank. iv LD 15: Laws of Arrest How to Use the Student Workbook Introduction This workbook provides an introduction to the training requirements for this Learning Domain. It is intended to be used in several ways: for initial learning prior to classroom attendance, for test preparation, and for remedial training. Workbook To use the workbook most effectively, follow the steps listed below. format Step Action 1 Read the first two sections: How to Use the Workbook and Preface which provide an overview of how the workbook fits into the POST Instructional System and how it should be used. 2 Refer to the overview section at the start of each chapter to review the learning objectives. 3 Read the text. 4 Refer to the Chapter Synopsis section at the end of each chapter to review the key points that support the chapter objectives. 5 Complete the Workbook Learning Activities at the end of each chapter. These activities reinforce the material taught in the chapter. 6 Refer to the Glossary section for a definition of important terms. The terms appear throughout the text and are bolded and underlined the first time they appear (e.g., term). LD 15: Laws of Arrest v  Preface Introduction Student The student workbooks are part of the POST Basic Course Instructional workbooks System. This system is designed to provide students with a self-study document to be used in preparation for classroom training. Regular Basic Completion of the Regular Basic Course is required, prior to exercising peace Course officer powers, as recognized in the California Penal Code and where the training POST-required standard is the POST Regular Basic Course. requirement Student The following elements are included in each workbook: workbook elements chapter contents, including a synopsis of key points supplementary material a glossary of terms used in this workbook vi LD 15: Laws of Arrest  Chapter 1 Constitutional Protections and the Role of a Peace Officer Overview Learning need Peace officers must have an understanding of the amendments to the U.S. Constitution, and similar sections of the California Constitution that are related to the authority, liability, and responsibility they have in making arrests. Learning The chart below identifies the student learning objectives for this chapter. objectives After completing study of this chapter, the student will be Objective able to... ID recognize a peace officer’s responsibility in relation to the protections and rights included in the following amendments to the U.S. Constitution and related California Constitution sections: - Fourth Amendment 15.01.2 - Fifth Amendment 15.01.3 - Sixth Amendment 15.01.4 - Fourteenth Amendment 15.01.5 recognize a peace officer’s responsibility in relation to 15.01.6 the protections included under federal civil rights statutes Continued on next page LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer 1-1 Overview, Continued In this chapter This section focuses on the U.S. and California constitutional provisions that directly impact peace officers. Refer to the chart below for a specific topic. Topic See Page Overview of the U.S. and California Constitutions 1-3 Fourth Amendment 1-4 Fifth Amendment 1- 6 Sixth Amendment 1-8 Fourteenth Amendment 1-10 Civil Rights Statutes 1-11 Chapter Synopsis 1-15 Workbook Learning Activities 1-17 1-2 LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer Overview of the U.S. and California Constitutions Introduction A Constitution is a written document which embodies the basic laws of a nation or state, defines the powers and duties of the government, and guarantees certain rights to the public. Ethics The authority to arrest and to deprive a person of freedom is one of the most serious and sensitive duties of a peace officer. Americans place high value on their personal freedom; they give the power of arrest to peace officers in full faith and consent with the understanding that it is to be used judiciously and under the strictest of limitations. The misuse of this authority undermines the relationship between peace officers and the community members they serve. History of The U.S. Constitution became effective in March 1789. The authors the Federal established this document to “form a more perfect Union, establish justice, Constitution insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty.” Amendments The first session of Congress proposed 10 amendments to the Constitution. to the These amendments are called the “Bill of Rights.” Constitution Since 1791, 17 additional amendments have been proposed by Congress and ratified by the voters. California In 1850, California became the 31st state to enter the Union, adopting its own Constitution Constitution in 1879. All the laws passed by the voters in the state must comply with the California Constitution, which is organized into articles that represent different subject matter areas. Officer During the performance of their duties peace officers have a legal, moral and responsibility ethical responsibility to protect all of the rights afforded to a citizen by the United States and California Constitutions. LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer 1-3 Fourth Amendment Text The right of the people to be secure in their persons, 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. Guaranteed The Fourth Amendment to the U.S. Constitution provides that people, houses, rights and effects (belongings) shall be secure from unreasonable searches and seizures, and requires probable cause for the issuance of warrants. Meaning The first part of the Fourth Amendment deals with the right of people to be for peace free from unreasonable searches and seizures. The second part defines officers procedures officers must follow when obtaining a warrant. Related Reasonable suspicion is the standard used to justify a detention. It exists terms when an officer has sufficient facts and information to make it reasonable to suspect that criminal activity may be occurring, and the person to be detained is connected to that activity. Probable cause to arrest exists when the totality of the circumstances or "total atmosphere" of the case would cause a person of ordinary care and prudence to entertain an honest and strong suspicion that the person to be arrested is guilty of a crime. A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government. A seizure of a person occurs when a peace officer physically applies force to a person or when a person voluntarily submits to the officer’s authority. A seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property by the government. Continued on next page 1-4 LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer Fourth Amendment, Continued Officer Peace officers have a responsibility to protect the Fourth Amendments rights responsibility of all citizens as it applies to unreasonable searches and seizures. LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer 1-5 Fifth Amendment Text No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Guaranteed The Fifth Amendment of the U.S. Constitution provides that individuals rights cannot be compelled to be a witness against themselves in a criminal case, may not be tried for the same offense twice, or be deprived of life, liberty, or property without due process of law. Meaning Peace officers need to understand the relationship between a person’s right for peace against self-incrimination and the Miranda decision. officers NOTE: The Miranda right to counsel was established by the United States Supreme Court in 1966 protecting a subject’s Fifth Amendment right against self-incrimination. Officer Peace officers have a responsibility to protect the Fifth Amendment rights of responsibility citizens as they pertain to double jeopardy, being a witness against one’s self, or depriving a person of life, liberty or property without due process. Continued on next page 1-6 LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer Fifth Amendment, Continued Examples An officer arrests a suspect for burglary. After the officer read the arrestee his Miranda rights, the arrestee waives his rights and agrees to answer questions. During questioning the arrestee confesses to the crime. If challenged in court the confession will not be suppressed because the officer obtained a knowing, voluntary waiver of the arrestee’s 5th Amendment Right against self- incrimination before obtaining the confession. An officer arrests a subject for burglary. The officer reads the arrestee his Miranda Rights before questioning. After hearing his rights, the arrestee invokes his 5th Amendment Right against self-incrimination by stating that he wants his attorney present before answering any questions. The officer continues to question the arrestee and eventually obtains a confession. The confession will be suppressed in court as a violation of the arrestees 5th Amendment Rights. An officer arrests a subject for burglary. Before reading the arrestee his Miranda Rights, the officer questions him about the crime and the arrestee confesses. The confession will be suppressed in court because the officer cannot show that the arrestee knowingly, voluntarily and intelligently waived his 5th Amendment Right against self-incrimination. LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer 1-7 Sixth Amendment Text In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Guaranteed The Sixth Amendment to the U.S. Constitution guarantees people accused of a rights crime the right to: a speedy trial confront witnesses against them and obtain witnesses in their favor the assistance of counsel, during court proceedings Meaning The Sixth Amendment entitles a person to counsel (i.e., an attorney) once for peace adversarial judicial proceedings have commenced. Adversarial judicial officers proceedings are considered to have commenced when the person is either indicted by a grand jury, or makes his or her first court appearance, known as arraignment. NOTE: This Sixth Amendment right to counsel is constitutional and was designed to help formally charged defendants defend themselves in court. Continued on next page 1-8 LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer Sixth Amendment, Continued Officer Peace officers have a responsibility to protect the Sixth Amendments rights of responsibility people. The Sixth Amendment gives the right to a speedy trial, an opportunity to confront witnesses and the right to counsel during court proceedings. Example Following a grand jury indictment, officers went to Smith’s house to serve an arrest warrant and “discuss his involvement in methamphetamine distribution.” After being advised of his Miranda rights, including being advised of his right to counsel, Smith waived his rights. Smith made a series of incriminating statements before and after he was arrested. The officers did not violate Smith’s 6th amendment rights because, even though he was represented by counsel, he voluntarily waived his 6th amendment rights. LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer 1-9 Fourteenth Amendment Text All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Guaranteed Through its “due process and equal protection” clauses, the Fourteenth rights Amendment to the U.S. Constitution applies portions of the Bill of Rights to all states. Meaning The Fourteenth Amendment requires peace officers to apply the law equally to to peace all people regardless of race, creed, nationality, religious preference, or officers national origin. NOTE: An illegal alien is entitled to equal protection under the 14th Amendment. Officer Peace officers have a responsibility to protect the Fourteenth Amendment responsibility rights of all people in the United States. The Fourteenth Amendment requires peace officers to apply the law equally to all people. 1-10 LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer Civil Rights Statutes Introduction There are several Federal statutes protecting people’s constitutional rights from conspiracies and from abuse by law enforcement. Violation of these codes is a crime. Text of U.S. Code, Title 42, Section 1983: Section 1983 Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Summary of This statute permits a civil rights suit seeking monetary damages to be Section 1983 awarded to anyone who proves, in a court of law, that they were deprived of some legal right through governmental action, that is, by a person acting under color of law. Under color of law means an action carried out as if under the authority of law, but is actually done in violation of the law (e.g., peace officers or magistrates using their positions to act in an unlawful manner). NOTE: Peace Officers could suffer monetary sanctions. Meaning Peace officers are subject to this statute and can be held personally liable if, for peace while acting under the color of law, they deprive or deny someone a legal right officers to which the person was entitled. However, under this section, so long as an officer was acting within the scope of their duties and they reasonably believed their actions did not violate any federal statutory or constitutional rights, they may request qualified immunity. Qualified immunity protects the individual officer from being liable for damages resulting in actual constitutional violations. Continued on next page LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer 1-11 Civil Rights Statutes, Continued Text of U.S. Code, Title 18, Section 241: Section 241 Conspiracy against rights of citizens. If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;... They shall be fined under this title or imprisoned not more than ten years, or both;... Summary of This law makes it a federal crime, punishable by a fine or imprisonment up to Section 241 10 years, or both: if two or more persons conspire to injure, oppress, threaten, or intimidate any person for doing anything that the person had a legal right to be doing or because the person previously exercised any such legal right NOTE: Conspiracy has different definitions under federal and state law. Meaning Peace officers can be prosecuted criminally if they conspire with other persons for peace to deprive individuals of their legal rights and be incarcerated. officers Officer Peace officers have a responsibility and legal obligation to protect the Civil responsibility Rights of all people as those rights pertain to the Federal Civil Rights Statutes. Continued on next page 1-12 LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer Civil Rights Statutes, Continued Text of U.S. Code, Title 18, Section 242: Section 242 Deprivation of rights under color of law. Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both;... Summary of This law makes it a federal crime, punishable by a fine or imprisonment up to Section 242 one year, or both: for any person, acting under color of any law to willfully deprive any person of any legal right or to subject any person to a different punishment or penalty based on that person’s color, race, or citizenship status Meaning Peace officers can be prosecuted criminally if they apply a law unevenly to peace because of a person’s color, race, or the fact that the person is an alien. officers Continued on next page LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer 1-13 Civil Rights Statutes, Continued California Penal Code Section 422.6(a) is broader than U.S. Code, Title 18, Section 242. equivalent It does not limit the governmental agent to acting only under “color of law.” It includes additional categories of religion, ancestry, national origin, disability, gender, and sexual orientation that are protected from discrimination. No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because he or she perceives that the other person has one or more of those characteristics. 1-14 LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer Chapter Synopsis Learning need Peace officers must have an understanding of the amendments to the U.S. Constitution, and similar sections of the California Constitution that are related to the authority, liability, and responsibility they have in making arrests. The Fourth If peace officers are not able to show probable cause, an arrest or search may Amendment be invalid, and the resulting evidence may be excluded. and officer responsibility During the performance of their duties, peace officers have a legal, moral and [15.01.2] ethical responsibility to protect all of the rights afforded to a citizen by the United States and California Constitution. The Fifth Peace officers need to understand how the Miranda decision protects a Amendment person’s right against self-incrimination and officer responsibility During the performance of their duties, peace officers have a legal, moral and [15.01.3] ethical responsibility to protect all of the rights afforded to a citizen by the United States and California Constitution. The Sixth Once this right attaches (indictment or first court appearance) and the person is Amendment represented by counsel, peace officers are prohibited from initiating and officer interrogation of the person about the charged crime, except in the presence of responsibility counsel. [15.01.4] During the performance of their duties, peace officers have a legal, moral and ethical responsibility to protect all of the rights afforded to a citizen by the United States and California Constitution. Continued on next page LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer 1-15 Chapter Synopsis, Continued The Fourteenth The Fourteenth Amendment requires that peace officers must: Amendment and officer apply the law equally to all people responsibility treat them the same regardless of race, creed, nationality, religious [15.01.5] preference, or national origin During the performance of their duties, peace officers have a legal, moral and ethical responsibility to protect all of the rights afforded to a citizen by the United States and California Constitution. Civil rights U.S. Code, Title 42, Section 1983, states that individuals acting under color of codes law who deprive someone of any legal right can be held civilly liable. and officer responsibility U.S. Code, Title 18, Section 241, makes it a federal crime for two or more [15.01.6] persons to conspire to injure, oppress, threaten, or intimidate someone for doing something they have a legal right to do. U.S. Code, Title 18, Section 242, makes it a federal crime to deprive a person, under color of law, of any legal right, or to punish a person differently, based on that person’s color, race, or citizenship status. Penal Code Section 422.6(a) is broader than U.S. Code, Title 18, Section 242. It adds categories of religion, ancestry, national origin, disability, gender, and sexual orientation to those protected from discrimination. 1-16 LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer Workbook Learning Activities Introduction To help you review and apply the material covered in this chapter, a selection of learning activities has been included. No answers are provided. However, by referring to the appropriate text, you should be able to prepare a response. Activity 1. Match the provision to the correct Amendment of the U.S. Constitution. questions ______ freedom from unreasonable A. Fourth Amendment searches and seizures ______ a speedy trial and assistance of B. Fifth Amendment counsel ______ equal treatment, regardless of race, C. Sixth Amendment creed, nationality, religious preference, or national origin D. Fourteenth Amendment 2. Define a conspiracy according to U.S. Code, Title 18, Section 241, and give an example. Continued on next page LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer 1-17 Workbook Learning Activities, Continued Activity 3. An anti-abortion protestor is quietly walking back and forth on the public Questions sidewalk in front of a medical clinic. The protestor is handing out anti- (continued) abortion literature containing graphic images. The clinic owners call peace officers. What actions should officers take on the scene? What Constitutional amendment has particular meaning in this case, and what protections does it offer? 4. Describe the impact of the Fourth Amendment on peace officers’ investigations. Continued on next page 1-18 LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer Workbook Learning Activities, Continued Activity 5. Describe one way peace officers can help to ensure due process rights questions guaranteed by the Fourteenth Amendment. (continued) Continued on next page LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer 1-19 Workbook Learning Activities, Continued Student notes 1-20 LD 15: Chapter 1 – Constitutional Protections and the Role of a Peace Officer  Chapter 2 Consensual Encounters Overview Learning need Peace officers must recognize that a consensual encounter is a face-to-face contact with a person under circumstances which would cause a reasonable person to believe they are free to leave or otherwise not cooperate. Learning The chart below identifies the student learning objectives for this chapter. objectives After completing study of this chapter, the student will be Objective able to... ID recognize appropriate conduct during a consensual 15.02.2 encounter recognize conduct that may elevate a consensual 15.02.3 encounter recognize the consequences of elevating a consensual 15.02.4 encounter In this chapter This section focuses on the characteristics of a consensual encounter. Topic See Page Consensual Encounters 2-2 Elevating Consensual Encounters 2-4 Chapter Synopsis 2-6 Workbook Learning Activities 2-7 LD 15: Chapter 2 – Consensual Encounters 2-1 Consensual Encounters Introduction Peace officers come into daily contact with individuals for a variety of reasons. The peace officer must be able to communicate with those individuals to aid and collect information without violating the Fourth Amendment. Policing With the advent of community policing, traditional measures of success such in our as the number of arrests are combined with new measures defined in terms of communities quality of life. These measures include reduction in alcohol-related traffic collisions, domestic abuse, homicide incidents, and drug-related recidivism. Arrests are not an end product in law enforcement work. They are useful tools in helping to achieve quality of life goals. Definition A consensual encounter is a face-to-face contact with a person under circumstances which would cause a reasonable person to believe they are free to leave or otherwise not cooperate. No legal justification is needed as long as officers are in a place they have a right to be. Appropriate Peace officers must be vigilant when contacting the public to ensure their applications actions do not elevate a consensual encounter into a detention. Appropriate actions peace officers can take during a consensual encounter are: requesting information (including identification and personal information) interviewing witnesses at the scene of a crime or accident conversing casually disseminating information Continued on next page 2-2 LD 15: Chapter 2 – Consensual Encounters Consensual Encounters, Continued Examples A highway patrol officer arrived at the scene of an accident to assist another officer. The second officer interviewed the witnesses to the accident and took their statements. Two peace officers were leaving a restaurant when an elderly couple approached them and asked for directions to the zoo. The officers gave them directions and then asked general questions about their visit to town. A peace officer suspects an individual of possessing a controlled substance but does not have enough information to legally detain him. The officer approaches the person and asks if he would be willing to answer a few questions. Non- If people refuse to cooperate during a consensual encounter, the peace officer cooperation may not require them to do so. People must be allowed to leave unless the officer has obtained or developed sufficient additional information which would justify detaining (reasonable suspicion) or arresting them (probable cause). LD 15: Chapter 2 – Consensual Encounters 2-3 Elevating Consensual Encounters Introduction Peace officers will ensure they do not violate a person’s Fourth Amendment rights during a consensual encounter by elevating it into a detention or arrest without legal justification. Elevating Certain actions may elevate a consensual encounter into a detention. Usually, actions peace officers can take alternate actions to avoid elevation. Possible Elevating Actions Alternate Actions Using emergency lights Using a spotlight rather than emergency lights Selecting a position or placing the Selecting a position or location that patrol vehicle so as to prevent the does not obstruct the person or person or car from leaving vehicle from freely leaving Issuing orders or commands (“Stop!” Requesting consent; seeking or “Come here, now!”) voluntary cooperation; “Do you mind if we talk?” Using accusatory questioning or tone Using non-accusing, helpful, of voice inquisitive tone of voice; requesting compliance rather than ordering it Conducting cursory/pat searches Asking for consent to pat search without legal justification Demanding and/or keeping a Requesting identification and person’s identification returning it when finished or upon request Continued on next page 2-4 LD 15: Chapter 2 – Consensual Encounters Elevating Consensual Encounters, Continued Examples Officers saw two men walk past each other in an alley in an area with a lot of drug-trafficking. They believed the men would have met each other if the officers had not been there. This "looked suspicious" to the officers, so they contacted one of the men and asked for identification. When he refused, they ordered him to stay and investigated further. Refusal to cooperate, by itself, is not reason enough to detain, so the detention was illegal. Late one evening, an officer observed someone sitting alone in a parked car in the empty parking lot of a closed business. Wishing to investigate, the officer drove up to the parked car. He turned on his emergency lights to identify himself as a peace officer. Because the officer’s red light means “Stop,” this was an illegal detention. Elevation Elevating a consensual encounter by improper behavior can have negative of contact legal and professional repercussions. The peace officer could: violate the Fourth Amendment right against unreasonable searches and seizures, resulting in the suppression of evidence be civilly prosecuted for a violation of civil rights be criminally prosecuted for false imprisonment face agency disciplinary action LD 15: Chapter 2 – Consensual Encounters 2-5 Chapter Synopsis Learning need Peace officers must recognize that a consensual encounter is a face-to-face contact with a person under circumstances which would cause a reasonable person to believe they are free to leave or otherwise not cooperate. Appropriate Peace officers must be vigilant when contacting the public to ensure they do applications not elevate a consensual encounter into a detention. [15.02.2] Elevating Certain actions can elevate a consensual encounter. consensual encounters [15.02.3] Consequences Elevating a consensual encounter could have legal negative repercussions. of elevating consensual encounters [15.02.4] 2-6 LD 15: Chapter 2 – Consensual Encounters Workbook Learning Activities Introduction To help you review and apply the material covered in this chapter, a selection of learning activities has been included. No answers are provided. However, by referring to the appropriate text, you should be able to prepare a response. Activity 1. A peace officer is interviewing witnesses at the scene of a drive-by questions shooting. What actions might the officer take to make sure these encounters remain consensual and do not elevate into detentions? What should the officer do if an eyewitness says she has to leave for an appointment? 2. What is the defining feature of a consensual encounter? Why is it important for an officer to be aware of the citizen’s perspective of the encounter as well as his or her own? Continued on next page LD 15: Chapter 2 – Consensual Encounters 2-7 Workbook Learning Activities, continued Activity 3. Why must an officer guard against unintentionally elevating a consensual questions encounter into a detention? What actions do you think might easily cause (continued) such elevation? 2-8 LD 15: Chapter 2 – Consensual Encounters Workbook Corrections Suggested corrections to this workbook can be made by going to the POST website at: www.post.ca.gov Continued on next page LD 15: Chapter 2 – Consensual Encounters 2-9 Workbook Corrections, Continued Student notes 2-10 LD 15: Chapter 2 – Consensual Encounters  Chapter 3 Detentions Overview Learning need Peace officers must recognize that a temporary detention is an assertion of authority that is less than an arrest but more substantial than a consensual encounter. Learning The chart below identifies the student learning objectives for this chapter. objectives After completing study of this chapter, the student will be Objective able to... ID differentiate between a detention and a consensual 15.03.2 encounter recognize reasonable suspicion 15.03.3 recognize appropriate peace officer actions during a 15.03.4 detention recognize the scope and conditions for warrantless 15.03.5 searches and seizures during a detention recognize conditions where the use of force or physical 15.03.6 restraint is appropriate during a detention Continued on next page LD 15: Chapter 3 – Detentions 3-1 Overview, Continued In this chapter This section focuses on detentions. Refer to the chart below for a specific topic. Topic See Page Detentions 3-3 Reasonable Suspicion for a Detention 3-6 Appropriate Actions During a Detention 3-9 Searches and Seizures During a Detention 3-13 Use of Force/Physical Restraints During a Detention 3-16 Chapter Synopsis 3-17 Workbook Learning Activities 3-19 3-2 LD 15: Chapter 3 – Detentions Detentions Introduction Peace officers may need to detain a person to investigate involvement in criminal activity. To be lawful, a detention must be based on reasonable suspicion that criminal activity has taken place, is taking place, or is about to take place, and that the person detained is connected to that activity. Definition A lawful detention requires reasonable suspicion of criminal activity. A temporary detention or stop is an assertion of authority by a peace officer that would cause a reasonable person to believe they are not free to leave. Such a belief may result from physical restraint, unequivocal verbal commands, or other conduct by an officer. A detention of a person is limited in scope, intensity, and duration. It is less than an arrest and more substantial than a consensual encounter. Continued on next page LD 15: Chapter 3 – Detentions 3-3 Detentions, Continued Consensual Peace officers must be able to distinguish between a consensual encounter and encounter vs. a detention. The table below depicts some similarities and differences detention between a consensual encounter and a detention. Consensual Encounter Detention An officer approached a man, known An officer approached a man, known for selling drugs, in an alley and for selling drugs, in an alley and asked if they could talk. The officer asked if they could talk. The officer proceeded to obtain general proceeded to obtain general information from the man. The information from the man, and officer started filling out a field started filling out a field identification card and ran a records identification card. The man stated check, making small talk until the that he needed to leave, but the results came back. officer did not return his driver’s license, continued to run a records check, and made small talk until the results came back. Because the officer kept the license, the man was not free to leave. The consensual encounter was elevated to a detention. Continued on next page 3-4 LD 15: Chapter 3 – Detentions Detentions, Continued Consensual Consensual Encounter Detention encounter vs. Officers observed a man walking Officers observed a man walking detention through a shopping center at 1:20 a.m. through a shopping center at 1:20 (continued) when all the stores were closed. They a.m. when all the stores were shined a spotlight on him, and one of closed. They shined a spotlight on the officers asked, "Is everything him, got out of their car, and one of okay?" the officers said, "Come over here. I want to talk to you." This "command" would make the suspect believe he was not free to leave. The initial contact would now be classified as a detention. Examples An officer made a vehicle stop for weaving within the lane. The officer determined that the driver was weaving because she spilled coffee in her lap. This was a lawful detention based on reasonable suspicion of a reckless driving violation. While assigned to night foot patrol, a uniformed officer observed a man walking by a closed jewelry store. The man walked back and forth, looking at all corners of the window, as well as at the alarm box on the wall. The officer had been informed that there had been several “smash-and-grab” burglaries in the area. The officer approached the man and asked for identification. The man started to walk away without answering. The officer stepped in front of the man to prevent him from leaving the area. This is a legal detention. Continued on next page LD 15: Chapter 3 – Detentions 3-5 Reasonable Suspicion for a Detention Introduction Unlike a consensual encounter, peace officers must have a reason or factual basis they can articulate in order to lawfully detain a person. This basis is called reasonable suspicion. Definition Reasonable suspicion is when a peace officer has enough facts and circumstances present to make it reasonable to suspect that criminal activity is occurring and the person detained is connected to that activity. Reasonable suspicion of criminal activity must exist to make a detention lawful. Basis for Reasonable suspicion may be based on observation, personal training and reasonable experience, or information from eyewitnesses, victims, or other officers suspicion (totality of the circumstances). Reasonable suspicion cannot be based on a hunch or instinct. If reasonable suspicion is not properly established in a court of law, the case against the defendant may be dismissed or any evidence seized may be excluded from trial. Contributing Some factors that contribute to establishing reasonable suspicion are: factors appearance or condition of a person (intoxicated, resemblance to wanted person) actions (hiding objects, furtive movements, running from a crime scene) driving behaviors knowledge of the person’s “history” (criminal record or conduct) demeanor (non-responsive, nervous) Continued on next page 3-6 LD 15: Chapter 3 – Detentions Reasonable Suspicion for a Detention, Continued Contributing time of day (unusualness) factors location of the stop (near crime scene, known criminal activity in area) (continued) officer training and experience (modus operandi, expertise in certain area such as narcotics or gang activity) NOTE: Flight by itself does not establish (reasonable suspicion) and cannot justify a detention. Examples An officer observed a man and woman standing on a corner in an area known for high drug activity. The woman appeared nervous, slyly looking in all directions. The woman reached into her pocket and gave the man a baggie in return for something; he then walked away. The officer is justified in detaining the man and woman on reasonable suspicion of drug-dealing. An officer was driving when a car passed him. The car swerved and almost hit another car. The officer had reasonable suspicion to stop the driver for vehicle code violations. Continued on next page LD 15: Chapter 3 – Detentions 3-7 Reasonable Suspicion for a Detention, Continued Role of a Peace officers can use information from others to investigate possible criminal reliable action and detain those involved in that action. Information which triggers source investigative action does not need to come from a source of proven reliability. A tip may support a detention if the surrounding circumstances make the information believable or if the reliable source’s identity is known. A purely anonymous tip will normally not provide a sufficient basis to detain although it can be if there is sufficient collaboration or other indications of reliability. Additionally, if the tip provides information or a person who poses a grave or more immediate risk to the public, such as driving under the influence, the detention can be upheld. 3-8 LD 15: Chapter 3 – Detentions Appropriate Actions During a Detention Introduction Though a detention is considered to be a “seizure of the person,” it does not intrude into a person’s liberty as much as an arrest. To ensure that peace officers do not make illegal arrests, they are restricted in what actions they may take during detentions. Investigative Once officers have stopped or detained a person, they may take whatever actions investigative actions are reasonable under the circumstances to determine the person’s possible participation in a crime. Common Common investigative actions include: actions questioning the person about identity and conduct contacting other individuals (e.g. witnesses) to confirm explanations, verifying identification, or determining whether the person is wanted (warrant check) checking premises, examining objects, or contacting neighbors or other individuals to determine whether a crime (e.g., burglary) actually occurred bringing the victim to the suspect for identification purposes Example A peace officer detained a robbery suspect based on a broadcast description of the person and the area of the robbery. The officer contacted the store clerk to identify the person. The detention was legal even if the clerk says the person is not the one who robbed the store. Continued on next page LD 15: Chapter 3 – Detentions 3-9 Appropriate Actions During a Detention, Continued Length of A detention must be temporary and last no longer than is necessary to resolve detention the reason for the stop. A detention legal at its beginning can become an illegal arrest if extended beyond what is reasonably necessary under the circumstances. Often what officers see and hear during a detention (evasiveness, nervousness, conduct, property) will increase their suspicion, justify a longer detention, lead to investigation of a different offense, or possibly even provide probable cause for arrest. If the person answers all questions about the suspicious circumstances satisfactorily, so that suspicion decreases or disappears, the person must be released. Examples A traffic stop, originally based on an excessively loud muffler, was properly prolonged to ascertain positive identification and vehicle ownership when the driver did not have a license, the car was not registered to any of the three male occupants, and the occupants gave conflicting answers to questions. A peace officer detained a possible battery suspect. During the investigative process, a witness was brought to the location of the detained suspect and confirmed the individual was not the one who committed the crime. The officer must release the person since the initial reason for the detention had been satisfied and no other suspicious behavior was observed. Continued on next page 3-10 LD 15: Chapter 3 – Detentions Appropriate Actions During a Detention, Continued Transporting The person usually will be considered under arrest if transported, without a person consent, by a peace officer to a different location. Because of this, officers during must be careful before transporting a detained person. Officers should not detention transport a person during a detention unless: the detainee gives permission it is impractical to bring the witness/victim to the detainee’s location the conditions of the detention are dangerous to the person the conditions of the detention are dangerous to the officer(s) independent probable cause exists to arrest the subject Continued on next page LD 15: Chapter 3 – Detentions 3-11 Appropriate Actions During a Detention, Continued Examples An officer detained a person as a suspect in a battery. Because the badly beaten victim was still recovering in a nearby hospital, the officer may take the detainee to the hospital for the victim to view for identification purposes. Two peace officers approached a group of men acting suspiciously on a corner known for drug activity. They asked the men for identification; one of the men was a known narcotics dealer. When the officers continued to question the known dealer, the other men began to get belligerent and verbally harassed the officers. The officers were justified in moving the detainee for their own safety. Refusal to A detainee is not obligated to answer any questions an officer may ask during answer a lawful detention. The refusal to answer questions alone does not provide questions probable cause for escalating a detention to an arrest. NOTE: A person who flees from a lawful detention or intentionally gives misleading/incorrect answers may be arrested for violating Penal Code Section 148(a)(1) (resisting, delaying, or obstructing any officer), provided that the action delayed or obstructed the investigation. Not answering questions, however, is not a violation of law. Continued on next page 3-12 LD 15: Chapter 3 – Detentions Searches and Seizures During a Detention Introduction Usually, searches are not permitted during a detention. If officers have a factual basis to suspect that the person is carrying a concealed weapon, dangerous instrument or an object that can be used as a weapon, the officers are justified in conducting a cursory/pat search to protect the officers from an assault. Scope of Cursory/pat searches are allowed to protect officers from an assault, but only a cursory/ if there are specific facts that cause the officers to feel endangered. pat search The scope of such a search is limited only to: - a cursory or pat down search of the outer clothing - locate possible weapons - a pat search is not a search for evidence or contraband Once the officers realize an object is not a weapon, or an object that can be used as a weapon, the officers may not further manipulate the object; they must move on. Any additional feeling, grabbing, or manipulating of the item is outside the scope of a cursory/pat search for weapons and will be considered an illegal search. Conditions Peace officers must be able to articulate specific facts which caused them to reasonably believe the person might be carrying a weapon or dangerous instrument. The following factors may support reasonable suspicion to believe the person may be carrying a weapon or pose a danger: person’s clothing (e.g., a bulge in clothing, or wearing a heavy coat on a hot night) person’s actions (e.g., trying to hide something or being overly nervous) Continued on next page LD 15: Chapter 3 – Detentions 3-13 Searches and Seizures During a Detention, Continued Conditions prior knowledge of person for carrying weapons or of violent behavior (continued) isolated location so officers are unlikely to receive immediate aid if attacked time of day (e.g., a dark, moonless night may increase likelihood that the officer may be attacked) reason for detention (e.g., serious, violent, or armed offense) a similar cursory/pat search of a detainee’s companion revealed a weapon ratio of individuals to officers Discovery If officers discover an object during a cursory/pat search, which officers believe is a weapon, dangerous instrument, or hard object which could contain or be used as a weapon, the officers have a right to remove it from the person. Discovered Item Officer Action Legal objects that could be used as a The officer may remove it, keep it weapon (e.g., screwdriver, pocket until the detention has concluded, knife). then return it to the subject. A container that is capable of The officer may remove and open containing a weapon or dangerous the container. instrument. NOTE: If contraband is discovered during the cursory/pat search, without any undue manipulation of the object, the officers should seize it, ask appropriate questions, place the person under arrest, and conduct a full custody search. This is known as the “plain feel” doctrine. As long as the officer has probable cause, usually based on their training and experience, that the object is contraband, they may lawfully seize the item. Continued on next page 3-14 LD 15: Chapter 3 – Detentions Searches and Seizures During a Detention, Continued Examples A peace officer observed a person walking with a screwdriver in the area of a recent auto theft; the person matched a broadcast description which had been given. The dispatcher also indicated that the person was armed with a knife. The officer made contact with the person. The officer conducted a cursory search and retrieved an illegal firearm. Upon further questioning, the person was found not to be involved in the original incident but could be arrested for possession of an illegal firearm. After seeing a bulge under an individual’s shirt, the officer conducted a cursory search of the person. Unable to determine the nature of the bulge, the officer began to manipulate the bulge to determine if it was a weapon. LD 15: Chapter 3 – Detentions 3-15 Use of Force/Physical Restraint During a Detention Introduction Sometimes officers may have to use force or physical restraints to detain a person. The reasonableness of the use of force will determine whether the detention is elevated to an arrest or remains a detention. Use of force If a person attempts to leave during a detention, officers may use reasonable or physical force and/or physical restraints to compel the person to remain. The use of restraints force does not necessarily elevate the detention to an arrest. Uncooperative individuals may be: handcuffed, and/or placed in a patrol vehicle Any use of force during a detention must be in accordance with Penal Code Section 835a. Examples A lawfully detained person began to get nervous during questioning, looked around, and started to walk off; the officer ordered the person to stay. When the person continued to walk off, the officer went after him, grabbed him by the arm, escorted him to the squad car, and placed him in the back seat. When a peace officer started checking whether the person she had detained had an outstanding warrant, the person turned and ran. The officer chased him and grabbed him. When he continued to struggle, the officer handcuffed him, walked him back to her car, and confirmed the outstanding warrant. 3-16 LD 15: Chapter 3 – Detentions Chapter Synopsis Learning need Peace officers must recognize that a temporary detention is an assertion of authority that is less than an arrest but more substantial than a consensual encounter. Consensual Peace officers must be able to distinguish between a consensual encounter and encounter vs. a detention. detention [15.03.2] Reasonable When an officer has enough facts and circumstances are present to make it suspicion reasonable to suspect that criminal activity is occurring and the person detained [15.03.3] is connected to that activity. Reasonable suspicion of criminal activity must exist to make a detention lawful. Appropriate Peace officers can take certain investigative actions during a detention if they actions can be completed within a reasonably limited time. during a detention [15.01.4] Searches No searches are permitted during a detention unless peace officers reasonably and seizures suspect that the detained person may be carrying a concealed weapon or during a dangerous instrument. detention [15.03.5] Continued on next page LD 15: Chapter 3 – Detentions 3-17 Chapter Synopsis, Continued Use of force If a person attempts to leave during a detention, the officers may use or physical reasonable force and/or physical restraints to compel the person to remain. restraints Uncooperative individuals may be handcuffed, and/or be placed in a patrol during a vehicle. detention [15.03.6] 3-18 LD 15: Chapter 3 – Detentions Workbook Learning Activities Introduction To help you review and apply the material covered in this chapter, a selection of learning activities has been included. No answers are provided. However, by referring to appropriate text, you should be able to prepare a response. Activity 1. About 1:00 a.m. a peace officer detains a couple who have circled the same questions block in their car several times in an area known for drug sales. As the officer approaches the car, he notices the couple fumbling in the front seat. What actions may the officer take to protect himself? What type of searches are legal in this situation? If the officer finds an unidentifiable bulge during a cursory search, how should the officer proceed? If the officer is asked, after-the-fact, to justify his reasonable suspicion for detaining the couple, how might the officer respond? 2. Describe three actions a peace officer might take, aside from physically restraining a person that would define a contact as a detention. Continued on next page LD 15: Chapter 3 – Detentions 3-19 Workbook Learning Activities Activity 3. Peace officers are called to the scene of a robbery by a silent alarm. En- questions route, they notice a man walking rapidly away from the scene and looking (continued) around nervously. They detain the man. What investigative actions can the officers properly take at this time? 3-20 LD 15: Chapter 3 – Detentions  Chapter 4 Arrests Overview Learning need Peace officers must know and comply with the statutory rules of arrest in order to properly exercise their authority and responsibility while avoiding liability when making arrests. Learning The chart below identifies the student learning objectives for this chapter. objectives After completing study of this chapter, the student will be Objective able to... ID recognize when there is probable cause to arrest 15.04.2 identify elements of a lawful arrest 15.04.3 differentiate between arrest and a detention 15.04.4 recognize information that must be given to an arrested 15.04.5 person recognize elements of a warrantless arrest for a 15.04.6 misdemeanor recognize elements of a warrantless arrest for a felony 15.04.7 recognize elements of a warrant arrest 15.04.8 recognize the requirements for entry into a dwelling to 15.04.9 make an arrest Continued on next page LD 15: Chapter 4 – Arrests 4-1 Overview, Continued Learning After completing study of this chapter, the student will be Objective objectives able to... ID (continued) recognize the authority for a private person arrest and the 15.04.10 peace officer’s duty in response to a private person arrest recognize conditions under which the use of force or 15.04.11 physical restraint is appropriate during an arrest recognize the statutory requirements for the disposition of 15.04.12 an arrested person recognize the exception(s) to the powers to arrest 15.04.13 Continued on next page 4-2 LD 15: Chapter 4 – Arrests Overview, Continued In this chapter This section focuses on identifying and classifying statutory law related to the authority to arrest and release individuals. Refer to the chart below for a specific topic. Topic See Page Probable Cause for Arrest 4-4 Elements of a Lawful Arrest 4-7 Information Given to an Arrestee 4-9 Warrantless Arrests for Misdemeanors and Felonies 4-11 Warrant Arrests 4-15 Entry Into a Dwelling to Make an Arrest 4-17 Private Person Arrests 4-20 Use of Force/Physical Restraints During an Arrest 4-24 Disposition of the Arrestee 4-25 Immunity and Statue of Limitations 4-29 Chapter Synopsis 4-32 Workbook Learning Activities 4-35 LD 15: Chapter 4 – Arrests 4-3 Probable Cause for Arrest Introduction The Fourth Amendment of the U.S. Constitution requires probable cause to make arrests and/or conduct searches because searches or arrests conducted without probable cause infringe on a person’s privacy. Leadership Peace officers must know the law and the proper methods of enforcement. They are aware of any available options regarding the decision to arrest and how to apply them. Definitions Arrest is taking a person into custody, in a case and in the manner authorized by law. (Penal Code Section 834) The arrest must be based on probable cause. Probable cause for an arrest is a set of facts that would cause a person of ordinary care and prudence to entertain an honest and strong belief that the person to be arrested is guilty of a crime. Probable cause is required before an arrest is made and is based on the totality of the circumstances. Facts required to establish probable cause may include, but are not limited to: direct investigation or reports circumstantial evidence second-hand statements from reliable sources Continued on next page 4-4 LD 15: Chapter 4 – Arrests Probable Cause for Arrest, Continued Reasonable Probable cause is a higher standard of suspicion than reasonable suspicion. suspicion However, factors that contribute to establishing reasonable suspicion can also vs. probable be used to establish probable cause, or it can escalate into probable cause. cause Factors for Reasonable Suspicion Probable Cause to Arrest Possible influence of alcohol or drugs Illegal level of intoxication Actions/words/demeanor during Self-incrimination, contraband detention Erratic driving behaviors DUI, contraband Pat search for weapons Possession of illegal weapons or contraband Possible connection to burglary Discovery of stolen property Officer Peace officers’ expertise is part of the equation for determining probable training and cause. For officers versed in a specific field of law enforcement, an activity experience which might otherwise appear innocent may provide probable cause to a trained eye. Continued on next page LD 15: Chapter 4 – Arrests 4-5 Probable Cause for Arrest, Continued Example An officer stopped Smith’s car for a traffic violation and as he approaches the car, observes a card board box in the back seat. The box contained glass beakers and flasks with a white residue. The officer’s training and experience enable him to recognize the contents of the box as items commonly used to manufacture methamphetamine and the officer makes an arrest. 4-6 LD 15: Chapter 4 – Arrests Elements of a Lawful Arrest Introduction An arrest is considered a full seizure of a person under the Fourth Amendment because it takes away a person’s liberty. Federal and California law establishes the authority to arrest and the information that must be provided to a person being arrested. Elements The following chart lists the elements of a lawful arrest and the appropriate of a lawful California Penal Code Sections. arrest Elements of a lawful arrest Penal Code Section An arrest may be made by a peace officer or private person. 834 The arrested person must be taken into custody, in a case and 834 in the manner authorized by law. An arrest may be made by actual restraint of the person, or 835 by the person’s submission to the officer’s authority. Reasonable force may be used to make an arrest, prevent 835a escape, or overcome resistance. Difference An arrest is the taking of a person into custody, in a case and in the manner between an authorized by law. Custody is the key word; it implies the person making the arrest and a arrest has full control. detention A detention or stop is an assertion of authority that would cause a reasonable person to believe they are not free to leave. A detention is limited in scope, intensity, and duration. Continued on next page LD 15: Chapter 4 – Arrests 4-7 Elements of a Lawful Arrest, Continued Peace Penal Code Section 836 establishes the legal basis for an arrest by peace officer officers. Officers may make an arrest: authority to arrest pursuant to a warrant without a warrant - whenever they have probable cause to believe the person to be arrested has committed a public offense (felony or misdemeanor) in their presence; - when the person arrested has committed a felony, although not in the officer’s presence; - whenever they have probable cause to believe the person to be arrested has committed a felony, whether or not a felony has in fact been committed. In the In the officer’s presence is liberally construed by the courts to include what is officer’s apparent to the officer’s senses, such as hearing, sight, and smell. presence Also, the officer can enhance his or her senses by using certain devices or objects, such as binoculars, a flashlight, a dog, a telephone, etc. However, the United States Supreme court has ruled the warrantless use of some thermal imaging devices constitutes a search. 4-8 LD 15: Chapter 4 – Arrests Information Given to an Arrestee Information California Penal Code Section 841 requires that any person making an arrest required at must convey certain information to the individual arrested at the time of the time of arrest. The three things that must be explained are: arrest intent cause authority Item Description Intent The arresting person must tell the individual that he or she is being arrested. Cause The arresting person must state the reason for the arrest (e.g., an outstanding warrant, or the name of the offense). Authority - A non-uniformed officer must show identification. - A uniformed officer and/or marked car satisfies this requirement (no ID required). - A private person must state his or her authority to make the arrest. NOTE: A peace officer arresting or detaining a foreign national for more than two hours must advise the individual that they have the right to contact their consulate (except as specified); and the officer’s agency must notify the consulate of the arrest or detention. (Penal Code Section 834(c)) Continued on next page LD 15: Chapter 4 – Arrests 4-9 Information Given to an Arrestee, Continued Exceptions There are two situations when the arresting person is not required to provide the individual with the intent, cause, and authority of the arrest. These are when the individual to be arrested is: actually committing the offense attempting to escape Examples Upon serving an arrest warrant, the uniformed officer stated the individual was under arrest for sexual assault. The officer did not need to state his authority since he was in uniform. A store owner caught a young woman shoplifting perfume. He held her arm and stated under the authority of the California Penal Code he was making a private person’s arrest for shoplifting. 4-10 LD 15: Chapter 4 – Arrests Warrantless Arrests for Misdemeanors and Felonies Introduction A warrantless arrest is a violation of the Fourth Amendment unless it is supported by probable cause. Peace officers must comply with numerous statutory requirements. Conditions for Peace officers may make a warrantless felony arrest whenever they have warrantless probable cause to believe the person to be arrested has: felony arrests committed a felony in the officer’s presence (Penal Code Section 836(a)(1)) committed a felony, although not in the officer’s presence (Penal Code Section 836(a)(2)) committed a felony, regardless of whether or not the felony was, in fact, committed (Penal Code Section 836(a)(3)) Conditions for Peace officers may make a warrantless misdemeanor arrest whenever they have warrantless probable cause to believe the person to be arrested committed the misdemeanor misdemeanor in their presence. (Penal Code Section 836(a)(1)) arrests The officer may make a warrantless arrest if there is probable cause even though a misdemeanor was not committed in the officers presence in the following circumstances: committed by a juvenile (Welfare and Institutions Code Section 625) Continued on next page LD 15: Chapter 4 – Arrests 4-11 Warrantless Arrests for Misdemeanors and Felonies, Continued Conditions for any of the following seven violations: warrantless misdemeanor - driving while under the influence (Vehicle Code Sections 40300.5 and arrests 40600) (continued) - carrying a loaded firearm on an individual’s person or in a vehicle while in any public place or on any public street (Penal Code Section 25850(a)) - violating a domestic protective or restraining order, when the officer was responding to a call alleging the same (Penal Code Section 836(c)) (Mandatory arrest) - committing an assault or battery on a spouse, cohabitant, or a parent of their child (Penal Code Section 836(d)) - committing an assault or battery on school property while school is in session (Penal Code Section 243.5) - committing an assault or battery against a working firefighter, emergency medical technician, or mobile intensive care paramedic (Penal Code Section 836.1) - carrying a concealed firearm at an airport (Penal Code Section 836(e)(1)(2)) Continued on next page 4-12 LD 15: Chapter 4 – Arrests Warrantless Arrests for Misdemeanors and Felonies, Continued Examples An officer received a radio dispatch of drug activity in front of an apartment complex. The officer arrived within two minutes and,