6- Timing for Arrest

Even though a private person may make a “citizen’s arrest,” the arrest must be made in a timely fashion. An arrest is unlawful if not made in a timely fashion.

Imogene Green v. Department of Motor Vehicles (1977) 68 Cal.App.3d 536

In this case, a private person noticed a vehicle being driven erratically shortly before 1:00 a.m. The private person observed the car veer back and forth between lanes, travel through a red light, make several turns on the wrong side of the street, and also pass back and forth over a double yellow line.

The private person observed the suspect pull into a driveway. The private person noted the physical characteristics of the suspect. He then located a police officer and told the officer what he had observed, including a description of the suspect’s vehicle and physical description.

The police officer went to the suspect’s home without the private person. The officer made contact with the suspect and immediately noticed obvious signs of intoxication, including a strong odor of alcohol. However, since the officer had not seen the suspect driving, he could not arrest him for driving while intoxicated.

The police officer located the private person who had observed the suspect driving. The private person was brought to the suspect’s home where he was able to positively identify the suspect. The private person then, with the assistance of the police officer, made a citizen’s arrest.

The suspect prevailed in an administrative hearing before the DMV on the theory that the warrantless arrest was not valid because it was not made within a reasonable time after the offense had been committed.

The Court of Appeal disagreed. The Court found that the arrest was made within 35-40 minutes of the time the private person observed the suspect park his vehicle in the driveway. The Court held,

“There is no requirement that the citizen keep the offender within view throughout the time intervening between observation of the offense and arrest.” (Id. at p. 541. )

The private person had notified the police immediately after observing the suspect’s actions. It was at that point that the private person believed his duties were complete. It was only after the police officer recalled the private person to the scene due to a technicality regarding the arrest that the private person then completed the citizen’s arrest. The Court determined that the arrest was made within a reasonable time as,

“This is not a case where the citizen observing the offense went about his other business and then later decided to effectuate an arrest.” (Id. at p. 541.)