LD 15: Chapter 1-6 - Constitutional Protections and the Role of a Peace Officer
Knock and notice exceptions
Under certain circumstances, an officer may enter a dwelling without complying with knock and notice requirements. These circumstances are: • at the scene the officer is given consent to enter • when exigent circumstances exist • the officer possesses a "no knock" warrant Exigent circumstances exist when there is: • hot pursuit • an imminent threat • to life (including the officer's) • to property (e.g., smell of natural gas) • of the suspect's escape • of the destruction of evidence or contraband
Define Under Color of Law
Under color of law means an action carried out as if under the authority of law, but is actually done in violation of the law (e.g., peace officers or magistrates using their positions to act in an unlawful manner). NOTE: Peace Officers could suffer monetary sanctions. Peace officers are subject to this statute and can be held personally liable
Right to counsel
Unlike the right to silence, a person's invocation of the Miranda right to have an attorney present or to speak to an attorney can only be invoked by a clear and express request for an attorney. Once the Miranda right to counsel has been asserted, all interrogation must cease. There are no circumstances, except for the actual presence of the attorney, where reinitiation by the officer is proper for as long as the person remains in custody. This is true even where officers from a different agency wish to interrogate the person about a different crime.
Searches and Seizures During a Detention
Usually, searches are not permitted during a detention. If officers have a factual basis to suspect that the person is carrying a concealed weapon, dangerous instrument or an object that can be used as a weapon, the officers are justified in conducting a cursory/pat search to protect the officers from an assault.
Time of arrest
Warrant arrests for felonies may be made at any time of day or night on any day of the week. (Penal Code Section 840) 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. (Penal Code Section 840)
Time of arrest
Warrantless arrests for felonies may take place at any time of day or night on any day of the week. (Penal Code Section 840) Warrantless arrests for misdemeanors or infractions must be made between the hours of 6 a.m. and 10 p.m. (Penal Code Section 836), unless the person: • commits the crime in the officer's presence • is arrested in a public place • is already in custody pursuant to another lawful arrest NOTE: A public place is a location readily accessible to all those who wish to go there including law enforcement. A key consideration is whether a member of the public can access the place "without challenge." Thus, a property with a locked fence is not readily accessible. Other things, such as, dogs in yard show public is not welcome.
Warrantless arrest releases
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," (Penal Code Section 849(a)), if one is available. Otherwise, the officers must take the person to jail for booking and either bail or arraignment and the filing of a criminal complaint. However, Penal Code Section 849(b) 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
Scope of a cursory/pat search
• The scope of such a search is limited only to: - a frisk of the outer clothing - locate possible weapons - a pat search is not a search for evidence or contraband Any additional feeling, grabbing, or manipulating of the item is outside the scope of a cursory/pat search for weapons and will be considered an illegal search.
Arrest is taking a person into custody, in a case and in the manner authorized by law. (Penal Code Section 834) The arrest must be based on probable cause.
• direct investigation or reports • circumstantial evidence • second-hand statements from reliable sources
What factors may support reasonable suspicion to believe the person may be carrying a weapon or pose a danger?
• person's clothing (e.g., a bulge in clothing, or wearing a heavy coat on a hot night) • person's actions (e.g., trying to hide something or being overly nervous) • prior knowledge of person for carrying weapons or of violent behavior • isolated location so officers are unlikely to receive immediate aid if attacked • time of day (e.g., a dark, moonless night may increase likelihood that the officer may be attacked) • reason for detention (e.g., serious, violent, or armed offense) • a similar cursory/pat search of a detainee's companion revealed a weapon • ratio of individuals to officers
Authority to Arrest
- A non-uniformed officer must show identification. - A uniformed officer and/or marked car satisfies this requirement (no ID required). - A private person must state his or her authority to make the arrest.
Define Concensual Encounters
A consensual encounter is a face-to-face contact with a person under circumstances which would cause a reasonable person to believe they are free to leave or otherwise not cooperate. No legal justification is needed as long as officers are in a place they have a right to be.
Refusal to answer questions during a detention
A detainee is not obligated to answer any questions an officer may ask during a lawful detention. The refusal to answer questions alone does not provide probable cause for escalating a detention to an arrest. NOTE: A person who flees from a lawful detention or intentionally gives misleading/incorrect answers may be arrested for violating Penal Code Section 148 (resisting, delaying, or obstructing any officer), provided that the action delayed or obstructed the investigation. Not answering questions, however, is not a violation of law.
Appropriate Length of detention
A detention legal at its beginning can become an illegal arrest if extended beyond what is reasonably necessary under the circumstances. If the person answers all questions about the suspicious circumstances satisfactorily, so that suspicion decreases or disappears, the person must be released.
Difference between an arrest and a detention - detention
A detention or stop is an assertion of authority that would cause a reasonable person to believe they are not free to leave. A detention is limited in scope, intensity, and duration.
Define Detention
A lawful detention requires reasonable suspicion of criminal activity. A temporary detention or stop is an assertion of authority by a peace officer that would cause a reasonable person to believe they are not free to leave.A detention of a person is limited in scope, intensity, and duration. It is less than an arrest and more substantial than a consensual encounter.
Foreign National Arrest
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. (Penal Code Section 834(c))
Disposition of the Arrestees Infractions
A person arrested for an infraction is normally cited and released, although the arrestee must sign a written promise to appear. (Penal Code Section 853.5)
Miranda rights
A person may invoke the right to silence or the right to counsel only at the time of, or during, police custodial interrogation. Unless custody and interrogation both exist at the same time, there are no Miranda rights to invoke. However, if these conditions both exist and the person invokes either the right to silence or the right to counsel, Miranda requires that all interrogation must cease. Some differences between these two rights exist concerning how they are invoked and whether the peace officer may later try to reinitiate interrogation. NOTE: Miranda rights are personal to the person and may not be invoked by anyone else on his or her behalf, including an attorney or a parent.
Private Person Arrests Conditions
A private person is authorized to make both felony and misdemeanor arrests. (Penal Code Sections 834 and 837). The conditions under which private person arrests can be made are similar to peace officer arrests regarding the use of force and the information that must be supplied to the arrested person. (Penal Code Section 841)
Private Person Arrests
A private person may arrest an individual for any public offense (felony, misdemeanor, or infraction) committed in their presence. In addition, a private person may arrest an individual if a felony actually has been committed and the arresting person has probable cause to believe the individual committed the felony.
Define the term search.
A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government.
Define a seizure of person.
A seizure of a person occurs when a peace officer physically applies force to a person or when a person voluntarily submits to the officer's authority.
Define seizuew of property
A seizure of property occurs when there is some meaningful interference with an individual's possessory interest in that property by the government.
Stale misdemeanor
A stale misdemeanor exists when an adult commits a misdemeanor in another person's presence (including a peace officer) and the person fails to arrest the adult within a reasonable time thereafter. A reasonable time thereafter normally means the person must have been in continuous fresh pursuit of the individual until the arrest is made. If no arrest is made during that time, the individual can no longer be arrested without an arrest warrant.
Private Person Arrests Required actions
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
Phone calls
After being booked, and within three hours of being arrested, an arrested adult must be allowed to make at least three completed phone calls. (Penal Code Section 851.5) 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 tlephone calls. (Welfare and Institutions Code 627) Any officer who deprives an arrested person of the right to make telephone calls is guilty of a misdemeanor. (Penal Code Section 851.5(f))
Elements of a Lawful Arrest
An arrest is considered a full seizure of a person under the Fourth Amendment because it takes away a person's liberty. Federal and California law establishes the authority to arrest and the information that must be provided to a person being arrested.
Difference between an arrest and a detention - arrest
An arrest is the taking of a person into custody, in a case and in the manner authorized by law. Custody is the key word; it implies the person making the arrest has full control.
Definition of Arrest Warrant
An arrest warrant is a written order signed by a magistrate which directs and commands a peace officer to arrest the person named in the warrant for the offense named in the warrant.
Exemption from prosecution
An officer who "receives" an arrested person may not be held civilly liable for false arrest or imprisonment. (Penal Code Section 836.5)
Probable Cause for Arrest Definition of Arrest
Arrest is taking a person into custody, in a case and in the manner authorized by law. (Penal Code Section 834) The arrest must be based on probable cause.
Warrant Arrests
Arrest warrants are generally required to arrest an individual inside their residence. Arrest warrants permit any officer to make the arrest, since probable cause has already been established.
Arrest warrant contents
Arrest warrants are required by Penal Code Section 815 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 Absent consent, exigencies, parole, or searchable probation, an arrest warrant is necessary to lawfully enter a dwelling to make an arrest.
When a suspect reinitiates questioning
Because Miranda rights are personal, suspects may change their mind. For example, suspects may reinitiate or express a desire to make a statement, even though they earlier invoked the right to silence or counsel. Under such circumstances, the officer should: • re-admonish the person with Miranda warnings • obtain a valid express waiver • then interrogate further • make a verbatim account of the reinitiation and any statement given
Entry into a Dwelling to Make an Arrest
Before entering a private dwelling to make an arrest, an officer needs lawful access. Simply because an officer can see an object in plain view from a lawful location does not automatically mean the officer may legally enter private property without a warrant to seize it, even if the object is obviously contraband or evidence of a crime. Lawful access to private property is most commonly obtained when the: • officer's entry is based on consent • officer's entry is based on exigent circumstances, for example, a reasonable belief that the evidence will be destroyed if entry is delayed in order to obtain a warrant
Information required at time of arrest
California Penal Code Section 841 requires that any person making an arrest must convey certain information to the individual arrested at the time of the arrest. The three things that must be explained are: • intent • cause • authority
Concensual Encounters Elevating actions
Certain actions may elevate a consensual encounter into a detention. Usually, peace officers can take alternate actions to avoid elevation. Using emergency lights Selecting a position or placing the patrol vehicle so as to prevent the person or car from leaving Issuing orders or commands Using accusatory questioning or tone of voice Conducting cursory/pat searches without legal justification Demanding and/or keeping a person's identification
Common actions During a Detention
Common investigative actions include: • questioning the person about identity and conduct • contacting other individuals (e.g. witnesses) to confirm explanations, verifying identification, or determining whether the person is wanted (warrant check) • checking premises, examining objects, or contacting neighbors or other individuals to determine whether a crime (e.g., burglary) actually occurred • bringing the victim to the suspect for identification purposes
Custody
Custody means a formal arrest or its "functional equivalent." It is objectively determined by the totality of circumstances. People are in custody for Miranda purposes when they have been: • actually placed under arrest • subjected to the kinds of restraints associated with a formal arrest (e.g., handcuffs, guns, lockups, etc.)
Officer responsibility
During the performance of their duties peace officers have a legal, moral and ethical responsibility to protect all of the rights afforded to a citizen by the United States and California Constitutions.
Concensual Encounters Elevation of contact
Elevating a consensual encounter by improper behavior can have negative legal and professional repercussions. The peace officer could: • violate the Fourth Amendment right against unreasonable searches and seizures, resulting in the suppression of evidence • be civilly prosecuted for a violation of civil rights • be criminally prosecuted for false imprisonment • face agency disciplinary action
Validity of waiver
For a waiver to be knowing, the person must have fully comprehended the four advisements, that is, must understand the nature of the rights he is giving up and the consequences of waiving them. ("Knowing" and "intelligent" both have this same definition and express a single concept.) For a waiver to be voluntary, it must be the result of a free and deliberate choice and not the result of coercion, i.e., any force, threats, or promises of leniency (whether express or implied), or any kind of tricks, cajoling, or "softening up" by the peace officers. If a waiver is ruled involuntary, any statements obtained afterward will not be admissible at trial to prove guilt.
Use of force or physical restraints
If a person attempts to leave during a detention, officers may use reasonable force and/or physical restraints to compel the person to remain. The use of force does not necessarily elevate the detention to an arrest. Uncooperative individuals may be: • handcuffed, and/or • placed in a patrol vehicle
Discovery of an object during a cursory/frisk
If officers discover an object during a cursory/frisk which officers believe is a weapon, dangerous instrument, or hard object which could contain or be used as a weapon, the officers have a right to remove it from the person. NOTE: If contraband is discovered during the weapons frisk, the officers should seize it, ask appropriate questions, place the person under arrest, and conduct a full custody search.
Concensual Encounters Non-cooperation
If people refuse to cooperate during a consensual encounter, the peace officer may not require them to do so. People must be allowed to leave unless the officer has obtained or developed sufficient additional information which would justify detaining or arresting them.
Probable Cause to Arrest
Illegal level of intoxication Self-incrimination, contraband DUI, contraband Possession of illegal weapons or contraband Discovery of stolen property
In the officer's presence
In the officer's presence is liberally construed by the courts to include what is apparent to the officer's senses, such as hearing, sight, and smell. Also, the officer can enhance his or her senses by using certain devices or objects, such as binoculars, a flashlight, a dog, a telephone, etc. However, the United States Supreme court has ruled the warrantless use of some thermal imaging devices constitutes a search.
Use of Force/Physical Restraint During an Arrest
Individuals are not permitted to resist arrest by peace officers because they can take legal and/or civil action for a false arrest. Some individuals do resist arrest, and peace officers may have to use physical restraints.
Probable cause determination
Individuals arrested without a warrant must be given a judicial determination of probable cause within 48 hours after the arrest, including weekends and holidays.
Role of a reliable source
Information which triggers investigative action does not need to come from a source of proven reliability.
Interrogation
Interrogation occurs when a peace officer: • engages in direct/express questioning of a person about a crime • uses words or conduct reasonably likely to elicit an incriminating response from a person Not all questioning is "interrogation." For example, routine booking questions are not interrogation. Neither are casual comments by custodial officials.
Knock and notice means:
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. (Penal Code Section 844). A private dwelling can be any place the person resides (not just houses or apartments) or areas of a business not open to the general public.
Miranda warning
Minimally, the following advisements must be provided to a person subjected to custodial interrogations. • You have the right to remain silent. • Anything you say may be used against you in court. • You have the right to an attorney before and during questioning. • If you cannot afford an attorney, one will be appointed for you free of charge, before questioning, if you wish.
Juveniles in custody
Miranda applies the same to minors as adults. The courts have found no difference in application. A juvenile does not have the right to have an adult present, and any request for one is not automatically either an invocation of the right to silence or the right to an attorney. However, California has a statute (Welfare and Institutions Code Section 625) that requires an officer to give Miranda warnings "in any case where a juvenile is taken into temporary custody." This requirement exists even when the juvenile is not going to be interrogated. If the minor is not going to be interrogated, the statute does not require that the minor understands the warnings or any waiver of rights, but rather just the advisements.
When obtaining a warrant
Must have an active investigation. Based upon probable cause described in affidavit detailing the known facts prepared by a peace officer reviewed and approved by a prosecutor reviewed and signed by a judge (phone search warrants for content are exceptions)
Fourth Ammendment Officer Responsibility
Officer responsibility Peace officers have a responsibility to protect the Fourth Amendments rights of all citizens as it applies to unreasonable searchers and seizures.
Exemption from prosecution
Officers acting within agency policy and lawful scope of their authority are protected from prosecution for false arrest or imprisonment for both warrant and warrantless arrests.
Domestic violence/abuse exceptions
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 as defined in Penal Code Section 13700 • is pursuant to agency policy for responding to domestic violence calls per Penal Code Section 13701
Appropriate Actions Transporting a person during detention
Officers should not transport a person during a detention unless: • the detainee gives permission • it is impractical to bring the witness/victim to the detainee's location • the conditions of the detention are dangerous to the person • the conditions of the detention are dangerous to the officer(s) • independent probable cause exists to arrest the subject
Investigative actions During a Detention
Once officers have stopped or detained a person, they may take whatever investigative actions are reasonable under the circumstances to determine the person's possible participation in a crime.
Waivers
Only if a valid waiver is obtained will answers to questioning be admissible in court. A waiver can be either expressed or implied, but must always be knowing and voluntary.
When executing a warrant.
Operational plan outlining roles and duties daytime or night service endorsement (2200) "Knock & Notice" requirement or waiver read or post warrant search, seize and log all property "Warrant Return" w/in 10 days of execution
Conditions for warrantless felony arrests
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 (Penal Code Section 836(a)(1)) • committed a felony, although not in the officer's presence (Penal Code Section 836(a)(2)) • committed a felony, regardless of whether or not the felony was, in fact, committed (Penal Code Section 836(a)(3))
Conditions for warrantless misdemeanor arrests
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. (Penal Code Section 836(a)(1)) 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 (Welfare and Institutions Code Section 625) • any of the following seven violations: - driving while under the influence (Vehicle Code Sections 40300.5 and 40600) - carrying a loaded firearm on an individual's person or in a vehicle while in any public place or on any public street (Penal Code Section 12031(a) - violating a domestic protective or restraining order, when the officer was responding to a call alleging the same (Penal Code Section 836(c)) (Mandatory arrest) - committing an assault or battery on a spouse, cohabitant, or a parent of their child (Penal Code Section 836(d)) - committing an assault or battery on school property while school is in session (Penal Code Section 243.5) - committing an assault or battery against a working firefighter, emergency medical technician, or mobile intensive care paramedic (Penal Code Section 836.1) - carrying a concealed firearm at an airport (Penal Code Section 836(e)(1)(2))
Conditions of a cursory/pat search
Peace officers must be able to articulate specific facts which caused them to reasonably believe the person might be carrying a weapon or dangerous instrument.
Appropriate Application of Concensual Encounters
Peace officers must be vigilant when contacting the public to ensure their actions do not elevate a consensual encounter into a detention. Appropriate actions peace officers can take during a consensual encounter are: • requesting information (including identification and personal information) • interviewing witnesses at the scene of a crime or accident • conversing casually • disseminating information
Knock and notice procedure
Peace officers must follow the prescribed procedure for knock and notice: • announce their presence • identify themselves as peace officers • state their purpose • demand entry • wait a reasonable amount of time (based on circumstances) • if necessary, forcibly enter premises
Consequences of not administering Miranda
Peace officers need to realize that if they fail to follow the Miranda procedures, any statement they may obtain during custodial interrogation may be inadmissible against the person at the criminal trial to prove guilt.
Fifth Ammendment Rights Meaning for Officers
Peace officers need to understand the relationship between a person's right against self-incrimination and the Miranda decision. NOTE: The Miranda right to counsel was established by the United States Supreme Court in 1966 protecting a subject's Fifth Amendment right against self-incrimination.
Civil Rights California Code Equivalent
Penal Code Section 422.6(a) 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.
Peace officer authority to arrest
Penal Code Section 836 establishes the legal basis for an arrest by peace officers. 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.
Factors for Reasonable Suspicion
Possible influence of alcohol or drugs Actions/words/demeanor during detention Erratic driving behaviors Pat search for weapons Possible connection to burglary
Reasonable suspicion vs. probable cause
Probable cause is a higher standard of suspicion than reasonable suspicion. However, factors that contribute to establishing reasonable suspicion can also be used to establish probable cause, or it can escalate into probable cause.
What is probable cause?
Probable cause to arrest exists when the totality of the circumstances or "total atmosphere" of the case would cause a person of ordinary care and prudence to entertain an honest and strong suspicion that the person to be arrested is guilty of a crime.
What is reasonable suspicion?
Reasonable suspicion is the standard used to justify a detention. It exists when an officer has sufficient facts and information to make it reasonable to suspect that criminal activity may be occurring, and the person to be detained is connected to that activity.
Reasonable Suspicion for a Detention
Reasonable suspicion is when a peace officer has enough facts and circumstances present to make it reasonable to suspect that criminal activity is occurring and the person detained is connected to that activity. Reasonable suspicion of criminal activity must exist to make a detention lawful.
Basis for reasonable suspicion
Reasonable suspicion may be based on observation, personal training and experience, or information from eyewitnesses, victims, or other officers (totality of the circumstances). Reasonable suspicion cannot be based on a hunch or instinct.
Contributing factors for reasonable suspicion
Some factors that contribute to establishing reasonable suspicion are: • appearance or condition of a person (intoxicated, resemblance to wanted person) • actions (hiding objects, furtive movements, running from a crime scene) • driving behaviors • knowledge of the person's "history" (criminal record or conduct) • demeanor (non-responsive, nervous) • time of day (unusualness) • location of the stop (near crime scene, known criminal activity in area) • officer training and experience (modus operandi, expertise in certain area such as narcotics or gang activity) NOTE: Flight by itself does not establish (reasonable suspicion) and can not justify a detention.
Use of Force/Physical Restraint During a Detention
Sometimes officers may have to use force or physical restraints to detain a person. The reasonableness of the use of force will determine whether the detention is elevated to an arrest or remains a detention.
Volunteered statements
Statements volunteered by a person, and not as a direct result of interrogation by the peace officer, are not affected by Miranda. Statements may be volunteered in any setting, such as: • during a consensual encounter • during a detention • during an arrest • during the booking process • during forensic testing or transportation • after the person has invoked the Miranda right(s)
Statute of limitations
Suspects for most crimes must be arrested within a certain time limit called the statute of limitation, as shown in the chart below.Statute of limitations Suspects for most crimes must be arrested within a certain time limit called the statute of limitation, as shown in the chart below. M-1yr, F-3YR, death life-no limit, sex offs - vary
Fifth Ammendment Guaranteed Rights
The Fifth Amendment of the U.S. Constitution provides that individuals cannot be compelled to be a witness against themselves in a criminal case, may not be tried for the same offense twice, or be deprived of life, liberty, or property without due process of law.
Privilege against self-incrimination
The Fifth Amendment privilege against self-incrimination applies to testimonial communication only. This privilege is not violated by requiring the person to provide: • handwriting samples • voice samples for analysis • body fluids or other samples for analysis In addition, this privilege is not violated if the person is asked to: • model articles of clothing • participate in a lineup • submit to routine fingerprinting • repeat a statement for voice identification
Meaning to peace officers of the Fourteenth Ammendment
The Fourteenth Amendment requires peace officers to apply the law equally to all people regardless of race, creed, nationality, religious preference, or national origin. NOTE: An illegal alien is entitled to equal protection under the 14th Amendment.
Private searches and seizures
The Fourth Amendment protects citizens from unreasonable searches and seizures by government personnel or their agents. The Fourth Amendment does not apply to a private person.
Miranda not required
The Miranda warning is not required unless both custody and interrogation exist at the same time. In the absence of formal arrest or equivalent restraints, Miranda custody does not exist. Without interrogation, peace officers are not required to give a person their Miranda rights, even if there is custody. Without custody, the officers need not give the Miranda warning, even if they are about to interrogate the person. CUSTODY + INTERROGATION = NEED FOR THE MIRANDA WARNING
Guaranteed rights by the Sixth Ammendment
The Sixth Amendment to the U.S. Constitution guarantees people accused of a crime the right to: • a speedy trial • confront witnesses against them and obtain witnesses in their favor • the assistance of counsel, during court proceedings
Cause to Arrest
The arresting person must state the reason for the arrest (e.g., an outstanding warrant, or the name of the offense).
Intent to Arrest
The arresting person must tell the individual that he or she is being arrested.
Fourth Ammendment Meaning for Officers
The first part of the Fourth Amendment deals with the right of people to be free from unreasonable searches and seizures. The second part defines procedures officers must follow when obtaining a warrant.
Elements of a lawful arrest
The following chart lists the elements of a lawful arrest and the appropriate California Penal Code Sections. An arrest may be made by a peace officer or private person. 834 The arrested person must be taken into custody, in a case and in the manner authorized by law. 834 An arrest may be made by actual restraint of the person, or by the person's submission to the officer's authority. 835 Reasonable force may be used to make an arrest, prevent escape, or overcome resistance. 835a
Obtaining a pre-complaint warrant
The process for obtaining a pre-complaint warrant includes the following actions: • the peace officer makes a written or oral statement of probable cause (affidavit) • a magistrate evaluates the information in the affidavit to assess whether probable cause for arrest exists • upon the magistrates finding of probable cause, an arrest warrant is issued • the subject named in the warrant is arrested • a criminal complaint may subsequently be filed pursuant to Penal Code Section 849
Fourth Ammendment Text
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Right to remain silent
The right to remain silent may be invoked by any words or conduct which reflect an unwillingness to discuss the case. Once a person invokes the right to silence, Miranda requires that all interrogation must cease. However, there are circumstances where reinitiation by the peace officer may produce an admissible statement. These circumstances include: • a period of time has gone by, and • the officers have some new information, and/or • the officers want to ask about a different crime. In any such "try again" situation, there would have to be full readvisement per Miranda and a valid waiver, with no pressure from the officer.
Elements of Miranda
There are three elements in the Miranda process. They are: • advisement of the Miranda warning by the officer • understanding of the warning by the person • waiver or invocation of the Miranda rights (silence and counsel) by the person
exception to the general Rule of Miranda
There is one exception to the general Rule of Miranda when a person is in custody and about to be interrogated. It is known as the public safety or emergency rescue exception, and it is based on exigent circumstances.
Civil Rights Summary of Section 241
This law makes it a federal crime, punishable by a fine or imprisonment up to 10 years, or both: • if two or more persons • conspire to injure, oppress, threaten, or intimidate any person • for doing anything that the person had a legal right to be doing • or because the person previously exercised any such legal right NOTE: Conspiracy has different definitions under federal and state law.
Civil Rights Summary of Section 242
This law makes it a federal crime, punishable by a fine or imprisonment up to one year, or both: • for any person, acting under color of any law • to willfully deprive any person of any legal right • or to subject any person to a different punishment or penalty • based on that person's color, race, or citizenship status
Appropriate Actions During a Detention
Though a detention is considered to be a "seizure of the person," it does not intrude into a person's liberty as much as an arrest.
