CPOLS - ARREST, DUI, Flashcards
If you arrest and book a known or suspected “foreign national,” or if you detain one for more than ____, you must advise her of the right to communicate with an official from the consulate of her country. And, if the foreign national elects to exercise this right, then you must also inform the “pertinent official” at your agency about the arrest or detention and the request. (Pen. Code, § 834c.) This statute also sets forth 56 countries (such as Russia, China and the Philippines, but not ____) that require mandatory notification, regardless of the foreign national’s wishes.
two hours,
Mexico,
For a felony, you may arrest a person
(1) with a warrant or
(2) without a warrant if you have probable cause to believe he or she committed a felony, regardless of whether or not it was committed in your presence.
For a misdemeanor, the general rule is that you may arrest a person (1) with a warrant or (2) without a warrant if the misdemeanor was committed in your presence. (Pen. Code, § 836.) Numerous exceptions to this rule allow a warrantless arrest for a misdemeanor–assuming the arrest is supported by probable cause–even though the misdemeanor was notcommitted in your presence when:
_____________
- the suspect was driving while under the influence (DUI) and ____
A E I O A
- the crime was committed by a juvenile (Welf. & Inst. Code, § 625; Samuel V.(1990) 225 Cal.App.3d 511, 513);
(1) was involved in an accident,
(2) is observed in or about a vehicle that is obstructing a roadway,
(3) will not be apprehended* unless immediately arrested,
(4) may cause injury* to himself or herself or damage property unless immediately arrested, or
(5) may destroy or conceal evidence* of the crime unless immediately arrested (Veh. Code, §§ 40300.5, 40600);
An arrest is mandatory if you respond to a call alleging a violation of a domestic violence protective order, restraining order, probation protective order, harassment order, emergency protective order in stalking cases, or elder abuse protective order and you have probable cause to believe:
(1) that the person against whom the order was issued had notice of the order and
(2) that the person has violated that order. (Pen. Code, § 836, subd. (c).)
This section also applies when a domestic violence protective order or restraining order has been issued by a court outside California.
For a felony, you may make an arrest–with or without a warrant–at any time of the day or night. (Pen. Code, § 840.)
However, for a misdemeanor or infraction, there is a time limitation. You must make the arrest–with or without a warrant–between _____ unless:
P P N I C D
6:00 a.m. and 10:00 p.m,
- the misdemeanor or infraction occurred in your presence* (see Welsch (1984) 151 Cal.App.3d 1038 for discussion of “presence”); or
- the arrest is made in a public* place; or
- you have a warrant endorsed for nighttime* service; or
- the arrestee is already in* custody on another charge or is taken into custody on a citizen’s* arrest; or
- you make the arrest for violation of a domestic* violence protective order, even though the violation did not occur in your presence. (Pen. Code, §§ 836, 840.)
E. Where You May Arrest
You may arrest:
P T R G
(1) in a public* place,
(2) inside the residence of the arrestee, if you have an arrest warrant, consent to enter, exigent circumstances, or the probable cause for the arrest arises after you are already lawfully inside,
(3) inside the residence of a third* person only if you have reasonable grounds to believe the suspect is inside (Jacobs (1987) 43 Cal.3d 472, 479) and you have (a) an arrest warrant for the third person combined with a Steagald search warrant or consent to enter, (b) exigent circumstances, or (c) the probable cause for the arrest arises after you are already lawfully inside, or
(4) beyond the geographical* boundaries of your agency only if (a) the crime was committed in your jurisdiction, (b) exigent circumstances exist, or (c) you have consent from the agency having jurisdiction where the arrest occurred (Hamilton (1986) 191 Cal.App.3d Supp. 13).
A doorway is considered a ____ “The Fourth Amendment’s prohibition on warrantless entry into an individual’s home does not apply to arrests made at the doorway.” (Schofield (2001) 90 Cal.App.4th 968, 976; McArthur (2001) 531 U.S. 326, 335; but see Quaempts (9th Cir. 2005) 411 F.3d 1046, 1048-1049 [arrestee who opened his front door but remained in the residence _____ in a public place].)
“public place.”
was not
Note: For juveniles, the same rule applies, except that the time limit is ____ instead of 48 hours. In other words, there must be a judicial determination of probable cause–which may or may not take the form of a “detention hearing”–within _____ of arrest, with _____ for weekends or holidays. The language in Welfare and Institutions Code sections 631 and 632, extending the time for “non-judicial days” (i.e., weekends and holidays), has been disapproved. (Alfredo A. (1994) 6 Cal.4th 1212, 1231-1232.)
72 hours,
72 hours,
no exceptions
For an investigative stop or detention to be valid, you must have “reasonable suspicion” that:
(1) criminal activity may be afoot and
(2) the person you are about to detain is connected with that possible criminal activity. (Wardlow (2000) 528 U.S. 119; Ornelas (1996) 517 U.S. 690, 695-696; Sokolow (1989) 490 U.S. 1, 7-8; Brown (2015) 61 Cal.4th 968, 981.)
If a detention occurs, it will be legal only if supported by reasonable suspicion. The Supreme Court has declined to create a “bright line” rule regarding “flight.” It has refused to rule either (1) that flight alone will always justify a detention or (2) that flight alone can never justify a detention.
Instead, both the U.S. Supreme Court and the California Supreme Court have held that “flight” is merely one factor in the “totality of the circumstances” that a court considers in determining whether reasonable suspicion existed. It is an important factor because fleeing from police officers, as opposed to simply refusing to cooperate, is inherently suspicious and “can be a key factor in determining whether in a particular case the police have sufficient cause to detain.” (Souza (1994) 9 Cal.4th 224, 235; Rodriguez (2012) 207 Cal.App.4th 1540, 1544.) “Headlong flight–wherever it occurs–is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” (Wardlow (2000) 528 U.S. 119, 124; Britton (2001) 91 Cal.App.4th 1112, 1118-1119.)
Thus, when combined with other factors, such as a _______, you often will have a valid basis to detain. (Smith (9th Cir. 2011) 633 F.3d 889, 893-894; Fuentes (9th Cir. 1997) 105 F.3d 487
high-crime area and/or
time of night
Example: It did not constitute an illegal arrest or detention of a minor for police to drive him to the station 90 minutes away for questioning, having first obtained consent from him and his mother. (Gilbert R. (1994) 25 Cal.App.4th 1121, 1125.)
Similarly, if an in-field identification or “showup” is desired, you should bring the victim or witness to the scene of the detention if at all possible. As a general rule, the courts do not want you to transport the suspect to the victim.
However, there are exceptions to this general rule. The major exceptions are:
P C V P
- when you have probable cause to arrest the suspect;
- when you have the voluntary consent of the suspect (even if the consent is conditional);
- when the victim cannot be moved; or
- when transporting the suspect to the victim is the best (or only) practical alternative (e.g., no other officers available). (Harris (1975) 15 Cal.3d 384; Rafael (1982) 132 Cal.App.3d 977; Gatch(1976) 56 Cal.App.3d 505.)
Vehicle Code section 40300.5 provides that you are permitted to make a DUI arrest whenever you have probable cause to believe that the person has been driving while under the influence and the person:
- was involved in a “traffic accident*”; or
- is in or about a vehicle that is obstructing* a roadway; or
- will not be apprehended* unless immediately arrested; or
- may cause injury* to himself or herself or damage property unless immediately arrested; or
- may destroy or conceal evidence* of the crime unless immediately arrested.
A detention may occur either through the _________ or __________. A detention through a show of authority occurs when an “officer’s words and actions would have conveyed to a reasonable person that he was being ordered to restrict his movement.” (Cuadra(2021) 71 Cal.App.5th 348; Brodie (D.C. Cir. 2014) 742 F.3d 1058 [instructions to put hands on the hood of a nearby car].)
use of force or a show of authority.
For purposes of report writing and testifying at a suppression hearing, officers must be able to articulate the specific grounds for a vehicle search. Lawful searches can be founded on any of the following grounds, all of which are based on an objective test–not on an individual officer’s state of mind. The Gant decision identifies four alternative justifications for lawful vehicle searches:
• The “Reason to Believe” Test. Officers may still conduct a search incident to arrest when it is “reasonable to believe” that evidence related to the “‘crime of arrest might be found in the vehicle.’” (Gant (2009) 556 U.S. 332, 343.)
• The “Automobile Exception.” Any part of a vehicle (including the trunk and closed containers) may be searched if there is probable cause to believe that the vehicle contains evidence of criminal activity and the evidence may be located in the area searched. (Ross (1982) 456 U.S. 798.) (See Ch. 4-IV.)
• Vehicle “Patdowns.” During a detention, it is lawful to conduct a limited search of the passenger compartment for weapons when the officer has reasonable suspicion that the detainee or another person on the scene is dangerous and may gain immediate access to a weapon. (Long (1983) 463 U.S.1032.) (See Ch. 4-II-E-3.)
• “Safety or Evidentiary Interests.” Citing Buie(1990) 494 U.S. 325 (protective sweeps), the Gant Court said that “there may be still other circumstances in which safety or evidentiary interests would justify a search.” (Gant (2009) 556 U.S. 332, 347.) This provides a catchall for those circumstances not yet decided by case law.
Added to these justifications are additional bases for conducting a lawful search in California.
• Consent. As discussed below, consent is always a valid basis for searching a vehicle. Remember, consent that is the product of an illegal detention or arrest will be subject to challenge.
• Vehicle Impound/Inventories. Vehicles properly impounded pursuant to a departmental “standardized” policy may be inventoried. (Bertine (1987) 479 U.S. 367; Wells (1990) 495 U.S. 1.) The policy need not be in writing (Needham (2000) 79 Cal.App.4th 260), but officers may be asked at a suppression hearing to testify as to the policy directives. (See Ch. 4-IX; see also (Ruckes (9th Cir. 2009) 586 F.3d 713–“inevitable discovery” doctrine applied because the facts at the suppression hearing established that the vehicle would have been subject to a vehicle impound/inventory.)
• Parole, PRCS, Probation and Mandatory Supervision Search Conditions. If an officer knows that the owner or driver of the vehicle is on parole, PRCS, searchable probation, or searchable mandatory supervision, the vehicle may be searched pursuant to the search condition. If the person subject to a search condition is an occupant, accessible areas of the passenger compartment may be searched. (See Ch. 5-VII.)
• Search for Registration Documents. If a driver stopped for a traffic violation denies having vehicle registration, officers may, prior to issuing a citation, enter the vehicle and conduct a limited search of the areas where such documentation reasonably may be expected to be found. (Webster (1991) 54 Cal.3d 411.) (Previously, in Arturo D. (2002) 27 Cal.4th 60, a similar search was allowed for the driver’s license if the driver failed to produce it. Arturo D. was overruled in Lopez(2019) 8 Cal.5th 353 as to searches for a driver’s license.)
