Advanced Arrest, Search & Seizure (Lesson 9 of 31)
9- To determine the proper standard for an authorized arrest, a number of factors must be considered.
- What type of crime is being committed, a public offense (i.e., a misdemeanor) or a felony?
- Who is the arresting person, a police officer or a security officer (i.e., a private person)?
- Was the crime observed?
- Is there probable cause to believe the crime occurred?
Penal Code Section 836 provides the authority for an arrest by a police officer and in very specific situations a citizen’s arrest. In general, an arrest by a police officer may be made with a warrant or without a warrant. If the officer does not have a warrant for arrest, the officer must have probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence.
This rule regarding an arrest without a warrant for a public offense, also known as a misdemeanor, is different from a police officer’s authority to arrest and a private person’s authority to arrest. For a misdemeanor or public offense, the police officer must only have probable cause to believe the person to be arrested has committed the offense in the officer’s presence. For a private individual, the private individual must actually observe the public offense being committed or attempted to be committed. There is no room for error. This is a severe limitation on the private person’s authority to arrest. Failure to understand this could result in civil liability for the security officer.
A police officer can rely upon not only his own observations, but upon hearsay when determining whether there is probable cause for making an arrest. That is, if a citizen told him what happened, even if it occurred outside of the police officer’s presence, probable cause to arrest exists for purposes of a felony. If the hearsay statements corroborate some of the officer’s own personal observations, assuming the observations itself did not amount to probable cause, the additional information can often be used to show that the crime occurred in the officer’s presence.
For example, a man seen running on the sidewalk with a purse in his hand, by itself, would not be sufficient for an officer to say that a crime had occurred in his presence. However, if the officer then sees a woman run out of a store yelling, “he just stole my purse!”, that hearsay statement would then be enough for the officer to reasonably conclude that the misdemeanor – theft of a purse – had occurred, and that the running suspect is the guy who did it. The officer did not observe the theft. It did not occur in his presence. But he had sufficient facts to justify the stop.