Penal Codes - Ld 15 - Laws Of Arrest

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Penal Code Section 422.6(a)

(Elements and classification)

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Penal Code Section is broader than U.S. Code, Title 18, Section 242. It does not limit the governmental agent to acting only under “color of law.” It includes additional categories of religion, ancestry, national origin, disability, gender, and sexual orientation that are protected from discrimination.

No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because he or she perceives that the other person has one or more of those characteristics.

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Penal Code Section 148

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Resisting, delaying, or obstructing any officer

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Penal Code Section 834

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An arrest may be made by a peace officer or private person.

The arrested person must be taken into custody, in a case and in the manner authorized by law.

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Penal Code Section 834(c)

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A peace officer arresting or detaining a foreign national for more than two hours must advise the individual that they have the right to contact their consulate (except as specified); and the officer’s agency must notify the consulate of the arrest or detention.

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Penal Code Section 835

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An arrest may be made by actual restraint of the person, or by the person’s submission to the officer’s authority.

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Penal Code Section 835a

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Penal Code Section authorizes peace officers to use force that is reasonable and necessary to make an arrest, prevent his escape, or overcome resistance.

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Penal Code Section 836

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Penal Code Section establishes the legal basis for an arrest by peace officers.

When an arrest can be made.

Officers may make an arrest:

• pursuant to a warrant

• without a warrant
- whenever they have probable cause to believe the person to be arrested has committed a public offense (felony or misdemeanor) in their presence;
- when the person arrested has committed a felony, although not in the officer’s presence;
- whenever they have probable cause to believe the person to be arrested has committed a felony, whether or not a felony has in fact been committed.

Warrant arrests for misdemeanors must be made between the hours of 6 a.m. and 10 p.m. unless the warrant is endorsed for nighttime service.

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Penal Code Section 836(a)(1)

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Peace officers may make a warrantless felony arrest whenever they have probable cause to believe the person to be arrested has:
• committed a felony in the officer’s presence

Peace officers may make a warrantless misdemeanor arrest whenever they have probable cause to believe the person to be arrested committed the misdemeanor in their presence.

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Penal Code Section 836(a)(2)

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Peace officers may make a warrantless felony arrest whenever they have probable cause to believe the person to be arrested has:

• committed a felony, although not in the officer’s presence

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Penal Code Section 836(a)(3)

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Peace officers may make a warrantless felony arrest whenever they have probable cause to believe the person to be arrested has:

• committed a felony, regardless of whether or not the felony was, in fact, committed

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Penal Code Section 841

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Penal Code Section requires that any person making an arrest must convey certain information to the person arrested at the time of the arrest. The three things that must be explained are, intent, cause, and authority.

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Penal Code Section 840

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Warrantless arrests for felonies may take place at any time of day or night on any day of the week.

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Penal Code Section 817

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Penal Code Section allows a peace officer to obtain an arrest warrant before a criminal complaint has been filed.

Pre-complaint warrants

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Penal Code Section 844

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Knock and notice means that before entering a dwelling to make an arrest, with or without a warrant, officers must give notice to the person inside.

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Penal Code Section 847

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According to Penal Code Section 847, when making a private person arrest, the person is, without unnecessary delay, required to:
• take the person before a magistrate
• deliver the arrested person to a peace officer

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Welfare and Institutions Code Section 625

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The officer may make a warrantless arrest if there is probable cause even though a misdemeanor was not committed in the officers presence in the following circumstances:
• committed by a juvenile

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Vehicle Code Sections 40300.5 and 40600

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The officer may make a warrantless arrest if there is probable cause even though a misdemeanor was not committed in the officers presence in the following circumstances:

- driving while under the influence

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Penal Code Section 25850(a)

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The officer may make a warrantless arrest if there is probable cause even though a misdemeanor was not committed in the officers presence in the following circumstances:

- carrying a loaded firearm on an individual’s person or in a vehicle while in any public place or on any public street

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Penal Code Section 836(c)

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The officer may make a warrantless arrest if there is probable cause even though a misdemeanor was not committed in the officers presence in the following circumstances:

- violating a domestic protective or restraining order, when the officer was responding to a call alleging the same

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Penal Code Section 836(d)

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The officer may make a warrantless arrest if there is probable cause even though a misdemeanor was not committed in the officers presence in the following circumstances:

- committing an assault or battery on a spouse, cohabitant, or a parent of their child

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Penal Code Section 243.5

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The officer may make a warrantless arrest if there is probable cause even though a misdemeanor was not committed in the officers presence in the following circumstances:

- committing an assault or battery on school property while school is in session

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Penal Code Section 836.1

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The officer may make a warrantless arrest if there is probable cause even though a misdemeanor was not committed in the officers presence in the following circumstances:

- committing an assault or battery against a working firefighter, emergency medical technician, or mobile intensive care paramedic

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Penal Code Section 836(e)(1)(2)

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The officer may make a warrantless arrest if there is probable cause even though a misdemeanor was not committed in the officers presence in the following circumstances:

- carrying a concealed firearm at an airport

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Penal Code Section 815

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Arrest warrants are required by Penal Code Section to contain the following information:
• name of the defendant
• crime the defendant is suspected of committing
• time the warrant is issued
• city or county where the warrant is issued
• signature of the issuing authority with the title of office
• name of the court or other issuing agency
• amount of bail

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Penal Code Section 849(b)(1)

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After an officer “receives” someone who has been arrested by a private person, the private person has no further say in the matter.

Officer can release the person, unconditionally, if the officer is satisfied there are insufficient grounds for filing a criminal complaint.

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Penal Code Section 853.6(i)

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After an officer “receives” someone who has been arrested by a private person, the private person has no further say in the matter.

The officer can issue a citation (signed promise to appear) if the arrest was for a misdemeanor, if the arrestee does not demand to be taken before a magistrate, and none of the statutory reasons for denying release exist.

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Penal Code Section 849(a)

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After an officer “receives” someone who has been arrested by a private person, the private person has no further say in the matter.

The officer can take the person “to the nearest or most accessible magistrate,

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Penal Code Section 836.5

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An officer who “receives” an arrested person may not be held civilly liable for false arrest or imprisonment.

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Penal Code Section 848

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If the arrest is made pursuant to a warrant (felony or misdemeanor), the arresting officer must proceed with the arrestee as commanded in the warrant.

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Penal Code Section 827.1

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If the arrest is made pursuant to a warrant (felony or misdemeanor), the arresting officer must proceed with the arrestee as commanded in the warrant. For misdemeanors only, this may include cite and release or transport to jail.

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Penal Code Section 853.5

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A person arrested for an infraction is normally cited and released, although the arrestee must sign a written promise to appear.

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Penal Code Section 853.6

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Penal Code Section requires, with some exception, that a person arrested without a warrant for misdemeanor offenses be cited and released in lieu of custody. Once arrestees sign a written promise to appear or post a bail bond, they are released.

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Penal Code Section 853.6(i)

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Whenever any person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for non-release, in which case the arresting officer may release the person, or the arresting officer shall indicate, on a form to be established by his or her employing law enforcement agency, which of the following was a reason for non-release:
• the person arrested was so intoxicated that he or she could have been a danger to himself or herself or to others
• the person arrested required medical examination or medical care or was otherwise unable to care for his or her own safety
• the person was arrested under one or more of the circumstances listed in Sections 40302 and 40303 of the Vehicle Code
• there was one or more outstanding arrest warrants for the person
• the person could not provide satisfactory evidence of personal identification
• the prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested
• there was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested
• the person arrested demanded to be taken before a magistrate or refused to sign the notice to appear
• There is reason to believe that the person would not appear at the time and place specified in the notice. The basis for this determination shall be specifically stated
• the person was subject to Section 1270.1

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Penal Code Section 13700

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Officers are required to take the person before a magistrate, rather than cite and release, if the arrest:

• is for a misdemeanor violation of a protective court order involving domestic violence

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Penal Code Section 13701

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Officers are required to take the person before a magistrate, rather than cite and release, if the arrest:

• is pursuant to agency policy for responding to domestic violence calls

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Penal Code Section 849(a)

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When officers arrest a person without a warrant for a felony or misdemeanor and the person is not otherwise released, the officers must take the person “to the nearest or most accessible magistrate,”

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Penal Code Section 849(b)

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Penal Code Section lists three situations where an officer may release a person who was arrested without a warrant. Those situations exist:
• when there are insufficient grounds for criminal complaint
• when the person was arrested for intoxication only and no further proceedings are desirable
• when the person was arrested only for being under the influence of a controlled substance or drug, is delivered to a treatment facility or hospital, and no further proceedings are desirable

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Penal Code Section 851.5

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After being booked, and within three hours of being arrested, an arrested adult must be allowed to make at least three completed phone calls.

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Welfare and Institutions Code 627 (b)

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Juveniles shall, immediately after being taken to a place of confinement and, except where physically impossible, no later than one hour after being taken into custody, be advised of their right to make at least two telephone calls.

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Penal Code Section 851.5(f)

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Any officer who deprives an arrested person of the right to make telephone calls is guilty of a misdemeanor

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Penal Code Section 825(b)

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After a person has been arrested, any attorney licensed to practice law in California, upon the request of the arrested person or the arrested person’s relatives may visit any time of the day or night. Any officer who willfully refuses to allow an attorney to visit can be charged with a misdemeanor and “shall forfeit” $500 to the aggrieved party.

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Penal Code Section 825.5

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A physician, surgeon, or an attorney who is employed by the arrested person in preparation for the defense is allowed to visit at any time.