Misdemeanor Arrest

by Charles Gillingham

The author was having a conversation with detectives recently when the question of when may misdemeanor arrests, not in the officer's presence, take place? This is a question that officers confront rarely, but it can be important.

"In the presence"

Penal Code section 836. In People v. Taylor 222 Cal.App.3d 612, the court made clear that for someone to arrest one only needs probable cause. This applies to both civilians and officer regardless of whether the crime is a felony or misdemeanor. A straight misdemeanor has an additional requirement: the crime must be committed in the presence of the arresting individual. Repeated court decisions have defined "in the presence" as facts presented to the officers senses; ie sight, smell, hearing. The court in People v. Welch 151 Cal.App.3d 1038 reiterated other decisions that in the presence is liberally construed.


Multiple courts have held that there is no suppression of evidence based on a violation of the "in the presence rule." Courts have found that because the rule is a state statute and not compelled by the Fourth Amendment suppression is not warranted. People v. McKay (2002) 27 Cal.4th 601, 605. Compliance with state arrest procedures is not a component of the federal constitutional inquiry. People v. Donaldson (1995) 36 Cal.App.4th 532, 539. People v. Burton (2013) 219 Cal.App.4th Supp. 9. Be mindful that violation of a state statute may expose you to a civil suit.


The Penal Code has carved out multiple exceptions to the "in the presence rule." Assaultive behavior and DUI cases are the most common exceptions. Assault on school grounds, of a firefighter or paramedic, and assault on an elder are exceptions. Carrying a loaded firearm on the person or in a vehcile are exceptions as well. As to DUI's the following apply: suspect was in a crash, the suspect might hurt himself or property if not arrested, exigent circumstances as to evidence, vehicle obstructing a roadway, suspect might flea, or finally the BAC being evanescent. Of course, juveniles are not subject to the "in the presence rule."


If the suspect is in a public place, most often a citizen will effectuate a citizen arrest. If the suspect is in his home, insure you have consent or an exigent circumstance prior to entering a dwelling. Remember, it is a misdemeanor. The most common scenario requires you to get a complaint from your prosecuting agency.