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151 Cards in this Set
- Front
- Back
US Constitution |
The U.S. Constitution became effective in March 1789. |
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Bill of Rights |
The first session of Congress proposed 10 amendments to the Constitution. These amendments are called the “Bill of Rights.”
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California Constitution |
In 1850, California became the 31st state to enter the Union, adopting its own Constitution in 1879.
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Officer Responsibility (as it pertains to constitutions) |
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 Constitutions |
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Fourth Amendment |
The Fourth Amendment to the U.S. Constitution provides that people, houses, and effects (belongings) shall be secure from unreasonable searches and seizures, and requires probable cause for the issuance of warrants. |
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Fourth Amendment - Meaning for Peace Officers |
The first part of the Fourth Amendment deals with the right of people to be free from unreasonable searches and seizures.
The second part defines procedures officers must follow when obtaining a warrant. |
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Reasonable Suspicion |
Reasonable suspicion is the standard used to justify a detention.
It exists 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. |
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Probable Cause |
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. |
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Search |
A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government. |
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Seizure of a person |
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. |
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Seizure of property |
A seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property by the government. |
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Fifth Amendment |
The Fifth Amendment of the U.S. Constitution provides that individuals 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. |
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Fifth Amendment - Meaning for Peace Officers |
Peace officers need to understand the relationship between a person’s right against self-incrimination and the Miranda decision.
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Sixth Amendment |
The Sixth Amendment to the U.S. Constitution guarantees people accused of a crime the right to: |
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Sixth Amendment - Meaning for Peace Officers |
The Sixth Amendment entitles a person to counsel (i.e., an attorney) once adversarial judicial proceedings have commenced.
Adversarial judicial proceedings are considered to have commenced when the person is either indicted by a grand jury, or makes his or her first court appearance.
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Fourteenth Amendment |
Through its “due process and equal protection” clauses, the Fourteenth Amendment to the U.S. Constitution applies portions of the Bill of Rights to all states. |
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Fourteenth Amendment - Meaning for Peace Officers |
The Fourteenth Amendment requires peace officers to apply the law equally to all people regardless of race, creed, nationality, religious preference, or national origin.
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U.S. Code, Title 42, 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.
This statute permits a civil rights suit seeking monetary damages to be 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.
Peace Officers could suffer monetary sanctions |
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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). |
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U.S. Code, Title 42, Section 1983 - Meaning for Peace Officers |
Peace officers are subject to this statute and can be held personally liable if, while acting under the color of law, they deprive or deny someone a legal right to which the person was entitled. |
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U.S. Code, Title 18, 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; ...
This law makes it a federal crime, punishable by a fine or imprisonment up to 10 years, or both:
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U.S. Code, Title 18, Section 241 - Meaning for Peace Officers |
Peace officers can be prosecuted criminally if they conspire with other persons to deprive individuals of their legal rights and be incarcerated. |
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U.S. Code, Title 18, 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; ...
This law makes it a federal crime, punishable by a fine or imprisonment up to one year, or both:
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U.S. Code, Title 18, Section 242 - Meaning for Peace Officers |
Peace officers can be prosecuted criminally if they apply a law unevenly because of a person’s color, race, or the fact that the person is an alien. |
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Penal Code Section 422.6(a) |
Penal Code Section 422.6(a) is broader than U.S. Code, Title 18, Section 242. 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.
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Consensual encounter |
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.
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Consensual encounter - Appropriate applications |
Peace officers must be vigilant when contacting the public to ensure their actions do not elevate a consensual encounter into a detention.
Appropriate actions peace officers can take during a consensual encounter are: |
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Consensual encounter - Non-cooperation |
If people refuse to cooperate during a consensual encounter, the peace officer 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 or arresting them. |
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Actions elevating consensual encounter to detention |
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Consequences of elevating consensual encounter without reasonable suspicion for detention |
Elevating a consensual encounter by improper behavior can have negative legal and professional repercussions.
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Detention |
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.
A lawful detention requires reasonable suspicion of criminal activity.
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Reasonable suspicion |
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.
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Basis for reasonable suspicion |
Reasonable suspicion may be based on observation, personal training and experience, or information from eyewitnesses, victims, or other officers (totality of the circumstances).
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Reasonable suspicion - contributing factors |
Some factors that contribute to establishing reasonable suspicion are: • time of day (unusualness) |
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Role of a reliable source |
Peace officers can use information from others to investigate possible criminal action and detain those involved in that action.
Information which triggers 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 sources 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.
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Investigative actions during detention |
Once officers have stopped or detained a person, they may take whatever investigative actions are reasonable under the circumstances to determine the person’s possible participation in a crime.
Common investigative actions include: |
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Length of detention |
A detention must be temporary and last no longer than is necessary to resolve 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.
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Transporting a person during detention |
The person usually will be considered under arrest if transported, without consent, by a peace officer to a different location. Because of this, officers must be careful before transporting a detained person. Officers should not transport a person during a detention unless: |
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Refusal to answer questions during detention |
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.
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Penal Code Section 148 |
Resisting, delaying, or obstructing any officer |
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Searches and seizures during detention |
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. |
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Scope of a cursory/pat search |
Cursory/pat searches are allowed to protect officers from an assault, but only if there are specific facts that cause the officers to feel endangered.
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Search and seizure during detention - 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.
• prior knowledge of person for carrying weapons or of violent behavior |
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Discovery |
If officers discover an object during a cursory/frisk 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
• Legal objects that could be used as a weapon (e.g., screwdriver, pocket knife). - The officer may remove it, keep it until the detention has concluded, then return it to the subject. • A container that is capable of containing a weapon or dangerous instrument. - The officer may remove and open the container.
If contraband is discovered during the weapons frisk, the officers should seize it, ask appropriate questions, place the person under arrest, and conduct a full custody search. |
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Use of force/physical restraint during detention |
If a person attempts to leave during a detention, officers may use reasonable force and/or physical restraints to compel the person to remain.
The use of force does not necessarily elevate the detention to an arrest.
Uncooperative individuals may be: |
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Arrest |
Taking a person into custody, in a case and in the manner authorized by law. (Penal Code Section 834) |
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Probable Cause for Arrest |
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.
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Probable Cause for Arrest as it relates to the 4th Amendment |
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.
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.
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Reasonable suspicion |
Probable cause is a higher standard of suspicion than reasonable suspicion. However, factors that contribute to establishing reasonable suspicion can also be used to establish probable cause, or it can escalate into probable cause.
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Reasonable suspicion |
Possible influence of alcohol or drugs versus Illegal level of intoxication
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Probable cause - Officer training and experience |
Peace officers’ expertise is part of the equation for determining probable cause.
For officers versed in a specific field of law enforcement, an activity which might otherwise appear innocent may provide probable cause to a trained eye |
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Difference between an arrest and a detention |
An arrest is the taking of a person into custody, in a case and in the manner authorized by law. Custody is the key word; it implies the person making the arrest has full control.
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Elements of a lawful arrest |
An arrest may be made by a peace officer or private person.
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Penal Code Section 834 |
An arrest may be made by a peace officer or private person.
The arrested person must be taken into custody, in a case and in the manner authorized by law. |
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Penal Code Section 835 |
An arrest may be made by actual restraint of the person, or by the person’s submission to the officer’s authority. |
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Penal Code Section 835a |
Penal Code Section 835a authorizes peace officers to use force that is reasonable and necessary to make an arrest, prevent his escape, or overcome resistance. |
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Penal Code Section 836 |
Penal Code Section 836 establishes the legal basis for an arrest by peace officers.
When an arrest can be made.
Officers may make an arrest:
Warrant arrests for misdemeanors must be made between the hours of 6 a.m. and 10 p.m. unless the warrant is endorsed for nighttime service. |
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In the officer’s presence |
In the officer’s presence is liberally construed by the courts to include what is apparent to the officer’s senses, such as hearing, sight, and smell.
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Penal Code Section 841 |
Penal Code Section 841 requires that any person making an arrest must convey certain information to the person arrested at the time of the arrest. The three things that must be explained are, intent, cause, and authority. |
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Information required at time of arrest - intent |
The arresting person must tell the individual that he or she is being arrested. |
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Information required at time of arrest - cause |
The arresting person must state the reason for the arrest (e.g., an outstanding warrant, or the name of the offense). |
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Information required at time of arrest - authority |
- A non-uniformed officer must show identification. |
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Information required at time of arrest - 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: |
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Conditions for warrantless felony arrests |
Peace officers may make a warrantless felony arrest whenever they have probable cause to believe the person to be arrested has: |
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Conditions for warrantless misdemeanor arrests |
Peace officers may make a warrantless misdemeanor arrest whenever they have probable cause to believe the person to be arrested committed the misdemeanor in their presence. (Penal Code Section 836(a)(1))
• any of the following seven violations: |
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Penal Code Section 840 |
Warrantless arrests for felonies may take place at any time of day or night on any day of the week. |
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Time of arrest - Warrantless arrests for misdemeanors or infractions |
Warrantless arrests for misdemeanors or infractions must be made between the hours of 6 a.m. and 10 p.m. (Penal Code Section 836), unless the person:
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Arrests - Exemption from prosecution |
Officers acting within agency policy and lawful scope of their authority are protected from prosecution for false arrest or imprisonment for both warrant and warrantless arrests. |
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Arrest warrant |
An arrest warrant is a written order signed by a magistrate which directs and commands a peace officer to arrest the person named in the warrant for the offense named in the warrant.
Absent consent, exigencies, parole, or searchable probation, an arrest warrant is necessary to lawfully enter a dwelling to make an arrest. |
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Arrest warrant contents |
Arrest warrants are required by Penal Code Section 815 to contain the following information: |
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Pre-complaint warrants |
Pre-complaint warrants (also known as Ramey warrants) are an alternative to the complaint/warrant procedure. Pre-complaint warrants contain the same information as other arrest warrants and are also issued based on sworn statements (affidavits) establishing probable cause. |
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Penal Code Section 817 |
Penal Code Section 817 allows a peace officer to obtain an arrest warrant before a criminal complaint has been filed.
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Obtaining a pre-complaint warrant |
The process for obtaining a pre-complaint warrant includes the following actions: |
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Time of arrest - Warrant arrests for felonies |
Warrant arrests for felonies may be made at any time of day or night on any day of the week. (Penal Code Section 840) |
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Time of arrest - Warrant arrests for misdemeanors |
Warrant arrests for misdemeanors must be made between the hours of 6 a.m. and 10 p.m. unless the warrant is endorsed for nighttime service. (Penal Code Section 840) |
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“Knock and notice” |
Knock and notice means that before entering a dwelling to make an arrest, with or without a warrant, officers must give notice to the person inside. (Penal Code Section 844). A private dwelling can be any place the person resides (not just houses or apartments) or areas of a business not open to the general public.
Before entering a private dwelling to make an arrest, an officer needs lawful access.
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Penal Code Section 844 |
Knock and notice means that before entering a dwelling to make an arrest, with or without a warrant, officers must give notice to the person inside. (Penal Code Section 844) |
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Knock and notice procedure |
Peace officers must follow the prescribed procedure for knock and notice: |
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Knock and notice exceptions |
Under certain circumstances, an officer may enter a dwelling without complying with knock and notice requirements.
These circumstances are: |
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Exigent circumstances |
Exigent circumstances exist when there is: |
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Private Person Arrests |
A private person may arrest an individual for any public offense (felony, misdemeanor, or infraction) committed in their presence.
In addition, a private person may arrest an individual if a felony actually has been committed and the arresting person has probable cause to believe the individual committed the felony.
A private person is authorized to make both felony and misdemeanor arrests. (Penal Code Sections 834 and 837).
The conditions under which private person arrests can be made are similar to peace officer arrests regarding the use of force and the information that must be supplied to the arrested person. (Penal Code Section 841) |
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Penal Code Section 847 |
According to Penal Code Section 847, when making a private person arrest, the person is, without unnecessary delay, required to: |
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Private person - searches and seizures |
The Fourth Amendment protects citizens from unreasonable searches and seizures by government personnel or their agents.
The Fourth Amendment does not apply to a private person.
Evidence obtained as a result of searches and seizures by a private person will not normally be suppressed.
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Private Person Arrests - Officer refusing to receive or arrest person charged with offense |
Penal Code Section 142(c) states: “This section shall not apply to arrests made pursuant to section 837, (arrests by private persons).” |
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Private Person Arrests - disposition |
After an officer “receives” someone who has been arrested by a private person, the private person has no further say in the matter. The officer has three different ways to proceed, as indicated in the table below.
Release
Issue a citation The officer can issue a citation (signed promise to appear) if the arrest was for a misdemeanor, if the arrestee does not demand to be taken before a magistrate, and none of the statutory reasons for denying release exist. (Penal Code Section 853.6(i))
Take the arrested person to a magistrate The officer can take the person “to the nearest or most accessible magistrate,” (Penal Code Section 849(a)), if one is available. Otherwise, the officer can take the person to jail for booking and either bail or arraignment and then file a criminal complaint. |
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Private Person Arrests - Exemption from prosecution |
An officer who “receives” an arrested person may not be held civilly liable for false arrest or imprisonment. (Penal Code Section 836.5) |
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Use of Force/Physical Restraint During an Arrest |
Individuals are not permitted to resist arrest by peace officers because they can take legal and/or civil action for a false arrest. Some individuals do resist arrest, and peace officers may have to use physical restraints
Penal Code Section 835a authorizes peace officers to use force that is reasonable and necessary to make an arrest, prevent escape, or overcome resistance. |
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Disposition of the Arrestees |
Statutes provide different means of handling or “disposing” of arrestees, depending on the nature of their offenses (infraction, misdemeanor, or felony) and the manner of arrest (warrant or warrantless). |
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Disposition of arrestees - Compliance with |
If the arrest is made pursuant to a warrant (felony or misdemeanor), the arresting officer must proceed with the arrestee as commanded in the warrant. (Penal Code Section 848).
For misdemeanors only, this may include cite and release or transport to jail. (Penal Code Section 827.1) |
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Penal Code Section 848 |
If the arrest is made pursuant to a warrant, the arresting officer must proceed with the arrestee as commanded in the warrant. (Penal Code Section 848) |
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Disposition of arrestees - Infractions |
A person arrested for an infraction is normally cited and released, although the arrestee must sign a written promise to appear. (Penal Code Section 853.5)
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Disposition of arrestees - Warrantless misdemeanor arrests and release |
Penal Code Section 853.6 requires, with some exception, that a person arrested without a warrant for misdemeanor offenses be cited and released in lieu of custody.
Once arrestees sign a written promise to appear or post a bail bond, they are released. |
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Disposition of arrestees - Warrantless misdemeanor arrests and release - Exceptions to misdemeanor cite and release |
Whenever any person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for non-release, in which case the arresting officer may release the person, or the arresting officer shall indicate, on a form to be established by his or her employing law enforcement agency, which of the following was a reason for non-release: (Penal Code Section 853.6(i)): |
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Disposition of arrestees - Domestic violence/ |
Officers are required to take the person before a magistrate, rather than cite and release, if the arrest: |
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Disposition of arrestees - Warrantless arrest |
When officers arrest a person without a warrant for a felony or misdemeanor and the person is not otherwise released, the officers must take the person “to the nearest or most accessible magistrate,” (Penal Code Section 849(a)), if one is available. Otherwise, the officers must take the person to jail for booking and either bail or arraignment and the filing of a criminal complaint.
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Disposition of arrestees - Probable cause determination |
Individuals arrested without a warrant must be given a judicial determination of probable cause within 48 hours after the arrest, including weekends and holidays |
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Disposition of arrestees - Phone calls |
After being booked, and within three hours of being arrested, an arrested adult must be allowed to make at least three completed phone calls. (Penal Code Section 851.5)
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Disposition of arrestees - Visitation privileges |
After a person has been arrested, any attorney licensed to practice law in California, upon the request of the arrested person or the arrested person’s relatives may visit any time of the day or night. Any officer who willfully refuses to allow an attorney to visit can be charged with a misdemeanor and “shall forfeit” $500 to the aggrieved party. (Penal Code Section 825(b))
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Immunity |
Exemption from a duty or penalty |
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Diplomatic agent |
Official appointed by a government to reside in a foreign country to represent the political interests of citizens of the appointing country. |
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Consular officer |
Official appointed by a government to reside in a foreign country to represent the commercial interests of citizens of the appointing country. |
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Consular service staff |
People who work for the consular officer in a foreign country |
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Diplomatic immunity |
There are various levels of diplomatic immunity for foreign diplomats in the United States.
Those with full diplomatic immunity may not be prosecuted for any crimes they commit. Those without full immunity may be arrested and prosecuted. |
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Stale misdemeanor |
Exists when an adult commits a misdemeanor in another person’s presence (including a peace officer) and the person fails to arrest the adult within a reasonable time thereafter.
A reasonable time thereafter normally means the person must have been in continuous fresh pursuit of the individual until the arrest is made. If no arrest is made during that time, the individual can no longer be arrested without an arrest warrant.
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Statute of limitations |
Suspects for most crimes must be arrested within a certain time limit called the statute of limitation, as shown in the chart below.
most misdemeanors = one year
NOTE: Even though the statute of limitation has expired, this does not preclude the officer from conducting an investigation, notifying detectives, or seeking advice from a district attorney. |
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The Miranda Warning |
Minimally, the following advisements must be provided to a person subjected to custodial interrogations.
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Miranda v. Arizona |
In the 1966 case of Miranda v. Arizona, the U. S. Supreme Court set forth a series of “procedural safeguards,” now known as Miranda admonishments.
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Purpose of Miranda warning |
The Fifth Amendment of the U.S. Constitution states that:
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When the Miranda Warning is Required |
The Miranda warning and a valid waiver of those rights are required before any custodial interrogation.
Custody and interrogation must both exist before the Miranda warning is necessary.
CUSTODY + INTERROGATION = NEED FOR THE MIRANDA WARNING
(unless it's a juvenile, then custody = miranda) |
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Custody |
Custody means a formal arrest or its “functional equivalent.” It is objectively determined by the totality of circumstances. People are in custody for Miranda purposes when they have been:
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Interrogation |
Interrogation occurs when a peace officer:
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When the Miranda Warning is Not Required |
The Miranda warning is not required unless both custody and interrogation exist at the same time. In the absence of formal arrest or equivalent restraints, Miranda custody does not exist.
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Volunteered statements |
Statements volunteered by a person, and not as a direct result of interrogation by the peace officer, are not affected by Miranda. Statements may be volunteered in any setting, such as: |
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Privilege against self-incrimination |
The Fifth Amendment privilege against self-incrimination applies to testimonial communication only.
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Consequences of not administering Miranda |
Peace officers need to realize that if they fail to follow the Miranda procedures, any statement they may obtain during custodial interrogation may be inadmissible against the person at the criminal trial to prove guilt. |
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Miranda - Elements |
There are three elements in the Miranda process. They are: |
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Miranda - process |
The person must understand all four advisements of the Miranda warning. To determine this, the officer can ask the person about understanding after each advisement or ask one time after each advisement has been given. Once a person has acknowledged their understanding of the warning, they must go on to either waive (give up) their Miranda rights or invoke one or both of them.
Warning
Understanding
Waiving or invoking rights |
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Miranda - Waivers |
Giving up Miranda rights.
Only if a valid waiver is obtained will answers to questioning be admissible in court. A waiver can be either expressed or implied, but must always be knowing and voluntary |
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Miranda - Validity of waiver |
For a waiver to be knowing, the person must have fully comprehended the four advisements, that is, must understand the nature of the rights he is giving up and the consequences of waiving them. (“Knowing” and “intelligent” both have this same definition and express a single concept.)
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Miranda - Expressed waiver |
Answers yes/no question about going forward with the questioning. |
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Miranda - Implied waiver |
Acknowledges understanding the advisements, and exhibits conduct indicating waiver of rights. |
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Miranda - Conditional waiver |
Acknowledges understanding the advisements and is willing to go forward, but places a limitation/ qualification on answering questions. |
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Miranda - Invoke |
Assert their Miranda rights. |
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Miranda - Invoking Miranda rights |
A person may invoke the right to silence or the right to counsel only at the time of, or during, police custodial interrogation. Unless custody and interrogation both exist at the same time, there are no Miranda rights to invoke.
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Miranda - right to remain silent |
The right to remain silent may be invoked by any words or conduct which reflect an unwillingness to discuss the case.
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Miranda - right to counsel |
Unlike the right to silence, a person's invocation of the Miranda right to have an attorney present or to speak to an attorney can only be invoked by a clear and express request for an attorney.
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Miranda - When a suspect reinitiates questioning |
Because Miranda rights are personal, suspects may change their mind. For example, suspects may reinitiate or express a desire to make a statement, even though they earlier invoked the right to silence or counsel.
Under such circumstances, the officer should: |
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Miranda - Documentation |
Because of the different reinitiation rules, peace officers should always document whether a person has waived or invoked their right to silence or their right to counsel. This will protect other officers from inadvertently reinitiating contact with the person and possibly violating Miranda’s requirements. |
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Miranda - Juveniles in custody |
Miranda applies the same to minors as adults. The courts have found no difference in application. A juvenile does not have the right to have an adult present, and any request for one is not automatically either an invocation of the right to silence or the right to an attorney.
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Welfare and Institutions Code Section 625 |
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: |
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Exception to the Rule of Miranda |
There is one exception to the general Rule of Miranda when a person is in custody and about to be interrogated. It is known as the public safety or emergency rescue exception, and it is based on exigent circumstances.
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Exception to the Rule of Miranda - Public Safety |
No Miranda warning is necessary, even though a person is in custody, if the officer who is about to ask incriminating questions (interrogate) is motivated by a concern for someone’s safety.
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Interview |
An interview is the process of gathering information from a person who has knowledge of the facts that an officer will need to conduct an investigation. |
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Crime Scene Interviews |
Interviews are conducted at the scene of a crime in order to obtain and document information needed to: |
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Interviews vs. interrogations |
Interviews • The process of questioning non-suspects such as victims or witnesses (who typically are willing to cooperate). • Should take place at the crime scene.
Interrogations • The process of questioning suspects (who often may be unwilling to provide information to investigating officers). • More than likely takes place as part of a follow-up investigation. |
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Crime Scene Interviews - preparation |
Be physically and mentally prepared.
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Crime Scene Interviews - listening actively |
Ask the person to recount what has happened.
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Crime Scene Interviews - Ask questions and take notes |
Obtain identification information.
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Crime Scene Interviews - Recording the interview |
Some officers may choose to use a small tape recorder while conducting an interview. Officers should be aware that this may inhibit the person from talking freely. Electronic equipment can also malfunction, leaving the officer with little or no information.
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Crime Scene Interviews - Verify information |
Review information with the person.
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Crime Scene Interviews - close the interview |
At the end of each interview, the interviewing officers should thank the individual for that person’s time and cooperation. Officers may also choose to explain any further actions that may be taken during the investigative process. |
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Crime Scene Interviews - Additional sources of information |
During the investigation of a crime, it is imperative that the investigating officer gather as much relevant information as possible.
To supplement crime scene interviews or when conducting a follow-up investigation, additional information may be obtained from: |
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Interrogation |
An interrogation means any questioning or conduct that is reasonably likely to elicit (produce) an incriminating response from a suspect (i.e., perpetrator or accomplice).
Although, it is possible to “interrogate” a suspect at the scene before the suspect has been arrested, handcuffed, or otherwise placed in “custody,” interrogation more commonly takes place after the suspect has been taken into custody, typically as part of a follow-up investigation.
When a suspect is both in “custody” and about to undergo “interrogation,” then Miranda comes into play. |
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Interrogation - Purpose |
An interrogation serves a number of different purposes: |
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Interrogation - Confession vs. admission |
A peace officer who conducts an interrogation must have a clear understanding of the difference between a confession and an admission.
Confession -
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Interrogation - Inadmissible statements |
A confession is the most compelling evidence of a suspect’s guilt. However, a confession or admission that violates the person’s constitutional protections and statutory requirements can be ruled inadmissible as evidence and greatly jeopardize the state’s position.
A confession or admission may be inadmissible in a court of law if the...
• arrest and statement was the result of an illegal search and seizure, such as an improper entry, unreasonable detention, etc. (4th Amendment)
• statement was obtained during custodial interrogation carried out in violation of any Miranda requirements, such as without a complete advisement of rights, or without a valid waiver of rights (5th Amendment)
• statement was obtained in violation of charged defendant’s right to be assisted by counsel, such as by initiating interrogation about the charged crime outside the presence of defense counsel of a defendant who has already been to court and obtained a lawyer to represent him or her. (6th Amendment)
• Statement was involuntary, i.e., was coerced by the government as the result of: (14th Amendment)
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Interrogation - Preparation |
Prior to conducting an interrogation, officers should take the time to prepare themselves and form a strategy for obtaining incriminating information. • decide on an interrogation technique to begin with (understanding that other techniques may be used during the interrogation as well) |
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Interrogation - location |
To control all outside influences on the individual to be questioned, the interrogation should take place in a room that is: |
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Interrogation - obtaining a statement |
The goal of an interrogation is to obtain an incriminating statement from the suspect.
Most importantly though, interrogating officers should never indicate in any way that their attitude has been anything but sincere, no matter which techniques have been employed |
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Interrogation - Use of subterfuge |
Subterfuge is the use of deception or falsehoods as a tactic when interrogating a suspect. In contrast, coercion is the use of force (mental or physical), threats, or overbearing psychological pressure to deprive a suspect’s free choice to admit, deny, or refuse to answer.
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Interrogation - Involuntary confessions |
An involuntary confession or statement is one that results from the use of coercion and therefore is not admissible in court for any purpose.
Unlike statements obtained in violation of Miranda, an involuntary confession may not be used as evidence to impeach witnesses or in any other way against the accused individual. |