Because California has enacted statutes that prohibit officers from making arrests for misdemeanors and infractions that were not committed in the officers’ presence, the only people who can make many misdemeanor arrests are civilians.
A citizen’s arrest can be made for a number of reasons and you can make a citizen’s arrest for most crimes should you see the person commit the crime.
A Crime Committed “In-The-Presence”
To make a citizen’s arrest for a felony or a “wobbler” crime, an officer or civilian needs only have probable cause. A “wobbler crime” is an offense that can be prosecuted as either a felony or a misdemeanor. However, if the crime was a straight misdemeanor or an infraction, the crime must have been committed in the “presence” of the arresting person, be it an officer or civilian. In the presence has been determined to mean that the citizen observed conduct by the alleged offender that is sufficiently indicative of a crime in the course of its commission.
Crimes that do not require the citizen or officer to have occurred in their presence are:
- Assault on School Property: Assault or battery on school property when school activities were occurring.
- Carrying a Loaded Firearm: Carrying a loaded firearm in violation of Penal Code section 12031.11.
- Firearm at Airport: Carrying a concealed firearm in an airport.
- Domestic Violence: Assault on a spouse or cohabitant, or a violation of a domestic violence protective order or restraining order if there was probable cause to believe the arrestee had notice of the order.
- Elder Assault: Assault or battery on any person aged 65 or older who is related to the suspect by blood or legal guardianship.
- Assault on Firefighter or Paramedic: Assault on firefighter, EMT, or paramedic engaged in performance of his duties.
- DUI: Driving under the influence if there is reasonable suspicion to believe that one or more of the following circumstances existed:
- The suspect was involved in auto accident.
- The suspect was in or near a vehicle obstructing a roadway.
- The suspect would not be apprehended unless immediately arrested.
- The suspect might harm themselves or damage property if not immediately arrested.
- The suspect might destroy or conceal evidence unless immediately arrested.
- An immediate arrest was necessary to accurately determine the suspect’s blood alcohol level.
Receive the Suspect
If the suspect is present when officers initially meet with the citizen, and if the citizen’s arrest has already done so, the officer must “receive” him, meaning they must take custody of the suspect. Note the following:
- The officer’s act of taking custody of the suspect does not constitute an arrest by the officers, it is merely a transfer of custody following an arrest by the citizen, and consequently, the officers cannot be held liable for false arrest.
- The officer must accept custody even if they don’t know whether the citizen had probable cause. The officer who accepts custody of a person following a citizen arrest is not required to determine whether the arrest was justified, and cannot be held liable for the arrest if it was improper.
- The officer could be charged with a felony for refusing to take custody of a suspect who had been arrested by a citizen.
Should the suspect not be present when officer arrives, the officer who later finds the suspect, may detain them until the citizen arrives to make a citizen’s arrest. The officer can also arrest the suspect without the citizen if the citizen, in addition to declaring their intent to arrest the suspect, had delegated to the office their right to take the suspect into physical custody. Delegations of authority can be expressed or implied.
Entering the Home of a Suspect
An officer can enter a home only if they have a warrant, consent, or if there were exigent circumstances. The exigent circumstance known as “fresh pursuit” is not usually permitted unless the suspect was wanted for a dangerous felony.
Transporting the Suspect
If an officer arrests the suspect based on an express or implied delegation of authority, they may transport the suspect to the citizen for the purpose of having the citizen complete the formalities of the arrest.
The suspect must be notified that he is under arrest. This must be done by the citizen or officer. However, neither the citizen nor the officers are required to formally arrest the suspect if, under the circumstances, a reasonable person in the suspect’s position would have known they were under arrest.
Cite and Release
Unless officers are required by statute to transport the suspect, they may cite and release him. The officers may also release the suspect without having them sign a notice to appear if they are satisfied that probable cause does not exist.
Searching the Arrestee
A citizen may seize any weapons in the arrestee’s possession, and any evidence in plain view but cannot conduct a search incident to the arrest or otherwise search for evidence unless it’s a “merchant” search.”
A merchant who makes a citizen’s arrest of a suspected thief, may request that the suspect surrender the stolen property. If the suspect refuses, the merchant may conduct a limited and reasonable search for the stolen property in packages, shopping bags, handbags or other property in the immediate possession of the suspect, but not including any clothing worn by the suspect.
Search by Officer
If the officers transport the suspect to jail for booking, they may conduct a standard search incident to arrest. Regardless of whether the suspect will be transported, an officer who accepts custody of a person arrested by a merchant having probable cause to believe the suspect had stolen retail merchandise may search the suspect for any item or items alleged to have been taken.
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