Laws of Arrest LD 15 Flashcards
Why did the authors of the U.S. Constitution establish the document?
To form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty.
4th Amendment to U.S. Constitution
People, houses (any private space), and belongings are protected from unreasonable searches and seizures; and requires probable cause for warrants
5th Amendment to U.S. Constitution
- no double jeopardy
- no forced self-incrimination
— right to counsel when in custody and interrogated - cannot take someone’s life, freedom, or property without due process
Reasonable Suspicion
Legal threshold required to detain someone, composed of sufficient facts and info. to make it reasonable to suspect that criminal activity may be occurring, and the person to be detained is connected to that activity.
-based on observation, personal training or experience, information from victims, eye witnesses, or other officers
Probable Cause
The high threshold required to arrest someone, based on the totality of the circumstances that 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.
Search
Occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government.
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.
Seizure of Property
Occurs when there is some meaningful interference with an individual’s possessory interest in that property by the gov’t.
6th Amendment to the U.S. Constitution
Guarantees people accused of a crime the rights to:
- speedy trial
- confront witnesses against them
- obtain witnesses in their favor
- assistance of counsel during court proceedings (beginning at grand jury indictment or arraignment)
14th Amendment to U.S. Constitution
Requires peace officers to apply the law equally to all people regardless of race, creed, nationality, religious preference, or national origin.
Under Color of Law
Action carried out as if under the authority of the law, but is actually done in violation of the law (peace officers using their positions to act in an unlawful manner).
U.S Code, Title 42, Section 1983
Allows civil rights suit seeking money damages (personally liability) to be awarded to anyone who proves, in a court of law, that they were deprived of some legal right through governmental action by a person acting under color of law.
U.S. Code, Title 18, Section 241
This law makes it a federal crime, punishable by a fine or imprisonment up to 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
U.S. Code, Title 18, Section 242
This law makes it a federal crime, punishable by a fine or imprisonment up to 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
Penal Code Section 422.6(a)
- 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 Constitutions or laws
- because of race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because of these perceived characteristics.
Consensual encounter
- face-to-face contact with a person
-under circumstances which a reasonable person would 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.
- Peace officers must be vigilant when contacting the public to ensure their actions do not elevate a consensual encounter into a detention.
Examples:
-requesting information (including identification and personal information)
-interviewing witnesses at the scene of a crime or accident
-conversing casually
-disseminating information
Elevating Actions
Consensual to Detention
- using emergency lights
- blocking vehicle from movement with patrol vehicle
- issuing orders or commands (“stop!” or “come here now!)
- using accusatory questioning or tone of voice
- using cursory/pat searches w/o legal justification
- demanding and/or keeping a person’s ID
Detention
- Requires reasonable suspicion of criminal activity
- temporary stop in an assertion of authority by a peace officer
- would cause a reasonable person to believe they are not free to leave.
- physical restraint, unequivocal verbal commands, or other conduct by an officer.
- limited in scope, intensity, and duration
- less than an arrest and more substantial than a consensual encounter.
- limited seizure of a person
Factors for Reasonable Suspicion to detain
- appearance or condition of person (intoxication, resemblance to wanted person)
- actions (hiding objects, secretive movements, running from crime scene)
- driving behaviors
- knowledge of the person’s history (crim. record or conduct)
- demeanor (non-responsive, nervous)
- time of day (unusualness)
- location of the stop (near crime scene, known criminal activity in area)
- officer training and experience (M.O., expertise in narcotics, gangs, etc)
- not instinct, hunch, nor flight of individual alone
- tip from reliable known source
- anonymous tip w/ sufficient collaboration or other indications of reliability.
- tip with information or a person who poses a grave or more immediate risk to the public (DUI)
Detention 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
-person usually will be considered under arrest if transported, without consent, by a peace officer to a different location.
-Officers should not 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
- A detainee is not obligated to answer any questions an officer may ask during a lawful detention.
-The refusal to answer questions alone does not provide probable cause for escalating a detention to an arrest
Detention Duration
- temporary: last no longer than is necessary to resolve the reason for the stop.
- legal at its beginning can become an illegal arrest if extended beyond what is reasonably necessary under the circumstances.
- what you 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.
Penal Code Section 148(a)(1)
- fleeing from a lawful detention or intentionally giving misleading/incorrect answers may allow arrest for resisting, delaying, or obstructing any officer
- provided that the action delayed or obstructed the investigation.
- Not answering questions is not a violation of law.
To avoid escalating a detention to an arrest, a detainee should only be transported when?
• 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
The scope of a detainee search w/ reasonable suspicion is limited only to what?
- a cursory or pat down search of the outer clothing
- only locate possible weapons
- not a search for evidence or contraband
- Once you realize an object is not a weapon, or an object that can be used as a weapon, you may not further manipulate the object, must move on
What factors support reasonable suspicion for weapon search of detainee?
- 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) - prior knowledge of person for carrying weapons or of violent behavior
• 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
What objects may be removed from a detainee during a search with reasonable suspicion?
- object believed to be a weapon
- dangerous instrument
- hard object which could contain or be used as a weapon
- contraband only w/o undue manipulation of object
What are reasonable uses of force with uncooperative detainee w/o escalating to arrest?
• handcuffed, and/or
• placed in a patrol vehicle
Arrest
- taking a person into custody, in a case and in the manner authorized by law
- must be based on probable cause
- Penal Code Section 834
Factors for probable cause to arrest incluse what?
- direct investigation or reports
- circumstantial evidence
- second-hand statements from reliable sources
Elements of Lawful Arrest
- may be made by a peace officer or private person (PC 834)
- must be taken into custody, in a case and in the manner authorized by law (PC 834)
- by actual restraint, or by the submission to officer’s authority (835)
- reasonable force may be used to make an arrest, prevent escape or overcome resistance (835a)
Custody
the person making the arrest has full control
PC 836
Officers may make an arrest:
- with warrant
- w/o warrant
- w/ probable cause of felony/misdemeanor in presence (sight, hearing, smell, K9)
- felony not in presence
- probable cause to believe person to be arrested committed felony, whether or not felony actually committed
CA PC 841
Requires any person making an arrest to convey certain info to arrestee (unless in process of committing offense or fleeing):
- intent (telling person they are under arrest)
- cause (reason for arrest or name of offense)
- authority
- non-uniformed officer must show ID
- uniformed officer or marked car sufficient
- private person must state his or her authority to make arrest (CA PC 834)
PC 834(c)
Peace officer arresting or detaining foreign national > 2 hrs. must:
- advise them of their right to contact their consulate
- officer’s agency must notify consulate of arrest or detention
