SKIP TO CONTENT
We use both our own and third-party cookies for statistical purposes and to improve our services. If you continue to browse, we consider that you accept the use of these.
  • Celebrating 20 Years of Training Excellence 2004-2024

Misdemeanor Arrest

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.

Suppression?

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.

Exceptions

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.”

Arrest

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.

 

  • I will continue to use and pass on this information because I really believe in the instructors and their approach.

    —Kimberly Meyer, Washoe County Sheriff's Department
  • The information presented was highly relevant to my job and was presented in a manner that was organized and very easy to digest.

    —Michael McGarvey, California State Prison, San Quentin
  • Effective teaching teams! The presentation of the material was consistently interesting, and intelligent without being too intellectualized.

    —Michele Keller, Deputy Probation Officer, County of Alameda
  • Your training gave me the confidence and tools to interview the suspect for over 5 hours and to bring a closure to the case.

    —Daniel Phelan, San Jose Police Department
  • This was, by far and away the best training I have received in 15 plus years of Law Enforcement. The instructors are experienced, engaging, articulate, and very entertaining. I will be recommending this training to multiple agencies.

    —Mark Paynter, Oregon DOC
  • Incredible training with amazing real world instruction. I have been taking law enforcement classes for over 30 years and by far this is the best presented and most useful.

    —Det. Brian Dale, Portland Police Bureau
  • This training provided the useful tools necessary for assessing the veracity of a suspected child abuser, which goes a long way in helping to protect children.

    —Sunny Burgan, MSSW, LCSW, Social Work Supervisor, Santa Clara County DFCS
  • I highly recommend this training for any Probation staff who have the necessity to interview/interrogate individuals for investigation purposes.

    —R. Bret Fidler, Santa Clara County Probation Department
  • Instructional style is engaging and highly effective.

    —George Laing, Fire Prevention Captain, Investigator
  • It not often that you go to a training that you really, really want to pay attention to. Because of the high quality information and style of presentation, I knew that if I looked away I was going to miss out.

    —Quinten Graves, Oregon State Police
  • This training by far has been the most informative and most effective I've attended. The instructors engaged the students in a manner that made me want to speak my opinion, ask questions, and participate.

    —Julio Ibarra, Merced County Sheriff’s Office
  • Your training has made the greatest and most direct impact on my assignment of any training class that I've taken.

    —Ken Gelskey, National City Police Department
  • This was, by far, one of the most useful training classes I've attended since becoming an investigator.

    —Steven Aiello, Antioch Police Department