RBC 1 (LD 5, 15, 16, 20, 39)

Constitutional Law (LD 5)

• Rules and provisions found in federal and state constitutions

• U.S. Constitution is the “supreme law” of the land, and sets procedural laws and protections via amendments (Bill of Rights)

• Basis of statutory laws and framework for creating and enforcing statutes

Statutory Law (LD 5)

• Laws enacted by legislature and

  • in CA, all crimes are statutory (i.e. has punishment”)

    • “No statute, no crime”

  Punishments usually noted in same statute — If not, use 18 and 19 PC

Case Law (LD 5)

• Interpret the Constitution and clarifies statutes

  • Based on previous appellate court decisions that have become binding on lower court decision (PRECEDENT)

Criminal Law (LD 5)

Violations of criminal statutes — public wrong against people of the state of California

Called “Crimes”

Consequence of prosecution by state

Purpose — “punishment” (death, incarceration, fines, removal/DQ from office)

Proven beyond a reasonable doubt

Civil Law (LD 5)

Violation of noncriminal law or private wrongs against another

Called “torts” or “breaches of contract”

Includes tort by omission/negligence if violates a legal duty owed to another person

Purpose — “redress” (monetary compensation or other relief)

Prosecuted by injured party

Preponderance of the evidence

Letter of the Law vs Spirit of the Law (LD 5)

Letter of Law — strict and literal application of law with no room for interpretation

Spirit of Law — Application of law with intent of legislature (reasoning as to why law was enacted, meaning of the words, scope of its effects, and relationship to other statutes), promote justice & fairness, not solely in literal compliance with words of statute

• PC 4 — “All statutes must be construed according to thte fair import of their terms, with a view to effect its objects to promote justice”

Statutory Definition of Crime (LD 5)

• PC 15 — An act committed/omitted in violation of a law forbidding or commanding it

• Punishments include:

  • Death

  • Imprisonment

  • Fine

  • Removal from office

  • DQ from holding/enjoying any office in CA

Basic Elements of all Crimes (LD 5)

• Criminal Act (commission of crime or omission of a required act)

• Criminal intent (person knowingly broke the law)

  • OR Neglience

• All elements must be present OR THERE IS NO CRIME

  • If not elements present, there MAY be an attempted crime

General Intent (LD 5)

• Intent does not have to be proven

• Presumes person was aware of their actions/conduct that were prohibited by law

• Ex. battery, felon in possession of firearm

Specific Intent (LD 5)

• Intent is an element that must be proven — if not, no crime committed

  • “with intent to,” “for the purpose of,” “with malice”

• Person intended for a specific result or consequence to occur from their criminal act

• E.g. burglary, kidnapping for ransom

• **did certain things for certain reason OR any attempt**

Transferred Intent (LD 5)

• When unlawful act affects a person other than, or in addition to, intended person

• Can only be transferred only if act involved does not require a different state of mind or criminal intent (i.e. WOULD NOT TRANSFER in case where person threw a rock with intention to hit person but broke window instead)

Criminal Negligence (LD 5)

• Failure to exercise ordinary care (i.e. person did not intent for consequence to occur, but it did)

  • Negligent act that is aggravated or reckless and constitutes indifference to the consequences (i.e. there is a disregard for human life/safety)

• Meets the requirement for criminal intent

Basic Elements of an Attempt to commit crime (LD 5)

• Intent to commit crime

• Direct but ineffective act done towards commission of crime

  • Requires substantial effort to carry out criminal objective — mere thought DOES NOT COUNT

• Some attempted crimes has own penal code section

  • If not, located in PC 664

Felony — Definition — (LD 5)

Crime punishable by fine and/or imprisonment in state prison, death, or removal from office (PC 17)

Misdemeanor — Definition — (LD 5)

Crime punishable by fine and/or imprisonment in county jail (PC 19)

Wobbler — Definition and What to Do — (LD 5)

Crime that can be felony OR misdemeanor — punishable by state prison or county jail

Treat wobblers as FELONIES

Infraction — Definition — (LD 5)

Crime punishable by fine only

• No Sixth Amendment unless case involves arrest

• Public defender may be appointed later if person is refused bail or fails to promise to appear in court

Parole, Postrelease Community Supervision (PRCS), PC 1170 Supervision, and Probation — What are the search conditions — (LD 5)

• Parole & PRCS (PC 3465) — Always searchable, no 4th Amend.

• PC 1170 & Probation — May have search clause, check file

• PRCS — Individiual release from prison and is under county supervision

  • If officer has PC to believe they violated terms/conditions of release, can arrest without warrant per PC 3455

• PC 1170 mandatory supervision — Served time in prison and is now in county jail or in alternative custody under county probation

  • If officer has PC to believe that person violated terms/conditiosn of supervision, can arrest under PC 1203.2(a)

Principal to a Crime — Definition — (LD 5)

• PC 31

• Person involved in commission of felony or misdemeanor (must prove that they had criminal intent)

• Includes people who:

  • Direct committed offense

  • Aided & abetted in commission of offense

  • Advised/encouraged commission of offense

  • Counseled/advised/encouraged children < 14 y/o, or mentally incapacitated persons to commit offense

  • by fraud, force, threats, menaces, coercion, or “occassioned by drunkenss” of another to commit offense

• Principal does not need to be present at commission of crime

Aid and Abet — Definition — (LD 5)

• Actively assisting, supporting, promoting, encouraging, strengthening, or instigating in the commission of a crime by act or advice

• Person aiding and abetting must have knowledge of unlawful purpose (intent) of actual perpetrator

• Person is considered a principal

• Aid = actively assisting or supporting without knowledge of guilt (e.g. carrying goods out of store for friend but didn’t know goods were stolen)

• Abet = having knowledge and felonious intent (i.e. encouraging)

Accessory — Definition — (LD 5)

• PC 32

• Person, AFTER FELONY HAS BEEN COMMITTED:

  • Has knowledge that principal has committed, has been charged with, or has been convicted of committing a felony

  • Harbors, concelas, or aids principal in felony

  • Has intention of assisting principal to avoid/escape arrest, trial, conviction, or punishment

Accomplice — Definition — (LD 5)

Person that testifies for prosecution against another principal

• Accomplice testimony must be corroborated with additional evidence (PC 1111)

Persons Legally Incapable of Committing a Crime — Six Exceptions — (LD 5)

• PC 26 — following people who commit these acts are deemed to lack or are unable to form intent:

• Children under 14

  • Exception — child knew wrongfulness of act at time of crime

• Mentally incapacitated person (IQ of 0-24)

• Person committed crime due to ignorance or mistake (must be honest and reasonable mistake without any criminal intent/negligence)

• Unconciously committed act (person must demonstrate act was involuntary and caused by irrational, unconscious response)

• Misfortune or accident (Must be no apparent evil design, intention, or culpable negligence)

• Threat or menace (life would be endangered if they refuse)

  • Can only be used as defnese in cases of self-defense

Intimidating Witness/Victims (after subpoena) — PC and Elements— (LD 39)

• PC 136.1(a) — Wobbler but treat as FELONY

• Elements for 136.1(a):

  • Any person

  • Knowingly and maliciously prevents or dissuades

  • Any witness of victim

  • from attending or testifying at any judicial proceeding

• PC 136.1(a)(2) — Attempt of 136.1(a)

Intimidating Witness/Victims (before subpoena) — PC and Elements— (LD 39)

• PC 136.1(b) — Wobbler but treat as FELONY

  • Includes attempt clause

• Elements:

  • Every person

  • who attempts to prevent or dissuade

  • another person who has been the victim or witness to a crime from doing any of the following:

    1. making any report of victimization to Peace Officer (136.1(b)(1))

    2. causing a complaint to be sought/assisting in prosecution [i.e. preventing case from going to DA’s office (136.1(b)(2))

    3. arresting the suspect [i.e. citizen’s arrest of a misdemeanor not in officer’s presence and is not an exception] (136.1(b)(3))

Threats of Retaliation — PC and Elements — (LD 39)

• PC 140(a) — Wobbler but treat as FELONY

• Crime occurs after witness has talked to police/DA or testified in court

• Elements:

  • Every person

  • Who willfully uses force or threatens to use force or violence

  • upon the person of a witness, victim, or any other person

  • to take, damage, or destroy their property

  • Because they provided any assistance/information to police or DA in court

Violating a Court Order — PC and Elements— (LD 39)

• PC 166(a)(4) — Misdemeanor

• Elements:

  • Any person who

  • Willfully disobeys the written terms of any process or court order, or out-of-state court oder lawfully issued by any court

• For crime to be complete, court order must:

  • have been propertly served on person OR

  • person must have been present when court order was generated

Resisting, delaying, or obstructing an officer — PC and Elements— (LD 39)

• PC 148(a)(1) — Misdemeanor

• Elements:

  • Every person who

  • Willfully resists, delays, or obstructs any public officer, peace officer, or emergency technician

    • No physical contact necessary — interference or verbal threats can constitute obstruction

  • in the discharge or attempt to discharge their duties

• * public officer = building inspectors, health inspectors (i.e. individual with authority conferred by law with includes ability to exercise government function & position has “permanency and continuity”)

• * peace officer = deputy sheriff and up, police officer and up, court marshals, DA investigators, CHP *

• Recording/photographing an officer, while officer in public place and person is in a place where they have a right to be — NO CRIME per PC 148(g)

Resisting or obstructing an executive officer by means of threat or violence — PC and Elements— (LD 39)

• PC 69 — FELONY

• Elements:

  • Every person who

  • attempts by means of threat or violence

    • ***includes threat of future harm***

  • to deter or prevent any executive officer from the performance of officer’s duties, OR

  • knowingly resists any executive officer by the use of force or violence in the performance of officer’s duties

  • Executive Officer = peace officer, DA, city attorney, and police commissioner

  • Recording/photographing an officer, while officer in public place and person is in a place where they have a right to be — NO CRIME per PC 69(b)

Threatening public officers and employees, and school officials — PC and Elements— (LD 39)

• PC 71 — FELONY

• Elements:

  • Every person who

  • with the intent to cause, attempts to cause, or causes

  • any school officer/employee, or public officer/employee

  • to do, or refrain from doing, any act in the performance of their duties

  • by means of threat, directly communicated to such person

  • to inflict an unlawful injury upon any person or property

  • and it reasonably appears to recipient of threat that such threat could be carried out

• *** directly communication does include communication by telephone, letter, etc. ***

Disarming an Officer of firearm — PC and Elements— (LD 39)

• PC 148(c) — FELONY

• Elements:

  • Every person

  • During commission of PC 148(a)(1)

  • removes or takes firearm from person OR from immediate presence of public officer/peace officer

• PC 148(d) — FELONY

  • Attempt

  • PC 148(a)(1) NOT REQUIRED for this crime

  • Includes the following by defendant:

    • Unfastening officer’s holster strap

    • firearm partially removed from officer’s holster

    • firearm safety was released

    • independent witness corroborates that defendant stated they intended to remove firearm and defendant touched firearm

    • independent witness corroborates that defendant actually had hand on firearm and tried to take it from officer

    • fingerprint found on firearm/holster

    • physical evidence authenticated by scientifically verifiable procedure established defendant touched firearm

    • while in a struggle, firearm fell and defendant attempted to pick it up

Disarming an Officer of weapon other than firearm — PC and Elements— (LD 39)

• PC 148(b) — FELONY

• Elements:

  • Every person who

  • During commission of PC 148(a)

  • Removes or takes any weapon, other than a firearm

  • from the person of or in the immediate presence of a public/peace officer

Escape from custody of peace officer — PC and Elements— (LD 39)

PC 836.6(a) — Attempt to escape or escaping from peace officer custody after being remanded by judge

PC 836.6(b) — Attempt to escape or escaping from peace officer custody who knows/should know they have been arrested

Misdemeanor UNLESS force or violence used during escape and it caused serious bodily injury, then it is a FELONY

Escape from prison/jail — PC and Elements— (LD 39)

PC 4530(a) — attempt to escape or escaping from state prison through use of force or violence

PC 4530(b) — attempt to escape or escaping from state prison without use of force or violence

PC 4530(c) — willful failure to return from temporary release

PC 4532 — attempt to escape or escape from jail

ALL ARE FELONIES

Rescue — PC and Elements— (LD 39)

• PC 4550 — FELONY

• Elements:

  • Every person who

  • rescues or attempts to rescue OR

  • aids another in rescuing/attempting to rescue

  • any prisoner from any prison, road camp, jail, or lawful custody of officer/person

Presenting False Identification to a Peace Officer — PC and Elements— (LD 39)

• PC 148.9 — Misdemeanor

• Elements:

  • Any person who

  • Falsely represents or identifies oneself as another person (real or fictitious)

  • To a peace officer upon lawful detention/arrest

  • Either to evade process of court or proper identification by investigating officer

Falsely Reporting a Criminal Offense— PC and Elements — (LD 39)

• PC 148.5 — Misdemeanor

• Elements:

  • Every person who

  • Reports to any peace officer, DA, or deputy DA that

  • Felony/misdemanor has been committed

  • knowing that the report is false

Falsely Reporting an Emergency — PC and Elements— (LD 39)

• PC 148.3(a) — Misdemeanor

• Elements:

  • Any individual who

  • Reports, or causes any report to be made

  • To any city/county/state department/district/etc.

  • That an “emergency” exists

  • Knowing the report is false

• PC 148.3(b) — FELONY

  • Elements:

    • 148.3(a) AND

    • individual knows/should know

    • response to report is likely to cause death or GBI AND

    • GBI or death is sustained by any person as a result

Falsely Reporting a Bomb— PC and Elements — (LD 39)

• PC 148.1(a) — Felony

• Elements

  • Any person who

  • Reports to specified personnel that

  • A bomb/other explosive

  • has been, or will be placed/hidden in any public or private place

  • Knowing that the report is false

• ****specified personnel can include: peace officers, media employees, airline/public transportation employees, building occupants, telephone company personnel

Unlawful Assembly — PC and Elements — (LD 39)

• PC 407 — Misdemeanor

• Elements:

  • Whenever two or more persons

  • Assembling together

  • To do an unlawful act OR

  • A lawful act in a

  • Violent, boisterous, or tumultuous manner

• ** violent = acts that involve criminal violence or tend to incite others to criminal violence

• ** boisterous/tumultuous manner = communication becomes noise at level that disrupts public peace

• Don’t always arrest for PC 407 because of spirit of the law and 1st amendment rights

Refusal to Disperse from Unlawful Assembly— PC and Elements — (LD 39)

• PC 416(a) — Misdemeanor

• Elements:

  • If two or more persons

  • Assembling for purpose of disturbing the peace OR

  • Committing any unlawful act AND

  • Do not disperse on being desired or commanded to do so by public officer

• *** only applies to participants in unlawful assembly***

Remaining Present at Unlawful Assembly — (LD 39)

• PC 409 — Misdemeanor

• Elements:

  • Every person

  • Remaining present at the place of an unlawful assembly

  • After the same has been lawfully warned to disperse

  • EXCEPT public officers and person assiting them in attempting to disperse

• **** media is not required to disperse ****

Fourth Amendment and Meaning for Officers— (LD 15)

• Protection against unreasonable searches and seizures

• In order to obtain warrant, probable cause must be demonstrated AND oath/affirmation

  • No probable cause = arrest/search may be invalid and evidence may be excluded

  • Warrant must detail the place searched and the person/things to be seized

• Officer has responsibiltiy to protect 4th Amend. rights as it applies to unreasonable search and seizure

Fifth Amendment and Meaning for Officers — (LD 15)

• Right to be indicted before a grand jury

• No self-incrimination

  • Miranda v. Arizona (1966)

• No double jeopardy

• Right to due process of law (fair trial)

• Officer has responsibility to protect 5th Amend. rights pertaining to double jeopardy, self-incrimination, and due process of law

Sixth Amendment and Meaning for Officers — (LD 15)

• Right to speedy and public jury trial

• Right to know your accusers & the criminal charges

• Right to confront witnesses against and obtain witnesses in favor

• Right to an attorney

• Officer has responsibility to protect people’s Sixth Amendment rights

  • Once person is represented by counsel, no interrogation unless counsel is present

Fourteenth Amendment and Meaning for Officers — (LD 15)

• All people have right to due process and equal protection of the law

• Officers are to apply the law equally to all people, regardless of race, creed, nationality, religious preference, or national origin

U.S. Code, Title 42, Section 1983 and Meaning for Officers — (LD 15) (Not on TTS)

Civil Action for deprivation of rights

• If an officer acted under color of law and deprived/denied an individual of a legal right, they can be held civilly liable

  • If an officer was acting within scope of their duties and reasonably believed their actions did not violate any federal statutory or constitutional rights, they can request for qualified immunity

U.S. Code, Title 18, Section 241 and Meaning for Officers — (LD 15) (Not on TTS)

• Conspiracy against rights of citizens — punishable by fine, imprisonment up to 10 years, or both

• Elements:

  • 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

• Officer can be prosecuted criminally and be incarcerated if they conspire with others to deprived others of their legal rights

U.S. Code, Title 18, Section 242 and Meaning for Officers — (LD 15) (Not on TTS)

• Crime of deprivation of rights under color of law

  • Officers can be criminally prosecuted if they act under color of law and deprive any person of any legal right OR subject any person to different punishment/penalty based on person’s color, race, or citizenship status

• CA PC Equivalent

  • Expands on U.S. Code, Title 18, Section 242

    • Does not require acting under color of law

    • Adds disability, gender, and sexual orientation to protected classes against discrimination/deprivation of rights

Consensual Encounter — Definition & Application — (LD 15)

• Face-to-face contact with individual where they are free to leave/not cooperate

  • Done in public place, non-coercive manner, voluntary

• Applications:

  • Requestion information (e.g. ID & personal info)

  • Interviewing witnesses at scene of crime or accident

  • Conversations

  • Distributing information

• Cannot require cooperation unless officer has reasonable suspicion to detain or probable cause to arrest

Elevating Consensual Encounters — Conduct and Consequences — (LD 15)

• Making person feel that they are not free to leave

• Examples of elevating consensual encounters:

  • Using emergency lights instead of spotlight

  • Positioning self or patrol vehicle that makes people not free to leave

  • Issuing commands/orders instead of requesting consent

  • Demanding/keeping a person’s ID

  • Accusatory tone

  • Cursory search without legal justification

• Elevating consensual encounter to a detention or arrest without legal justification —> violation of 4th Amendment and suppression of evidence. potential civil/criminal prosecution, disciplinary action from agency

Detention — Definition — (LD 15)

• Assertion of authority by peace officer that would cause reasonable person to believe they are not free to leave in order to investigate involvement in criminal activity

  • Belief can stem from use of physical restraint, verbal commands, officer conduct, # of officers present

    • Considered a seizure under 4th Amendment

      • More substantial than consensual encounter but less than arrest

      • Limited in scope, duration, and intensity

• Ends in arrest or release

Reasonable Suspicion — Definition and Contributing Factors — (LD 15)

• Specific articulable facts that make it reasonable to suspect criminal activity just occurred, is occurring, or about to occur AND person detained is connected to acitivity

  • Based on observation, training and experience, witness/victim/other officer information

• Contributing factors to establish reasonable suspicion:

  • Nature of crime under investigation

  • Person’s appearance, conditions, or actions

  • Driving behaviors

  • Criminal record

  • Demeanor

  • Time of day

  • Location

  • Officer training and experience

• Flight alone does not establish reasonable suspicion and cannot justify a detention

Detention — Appropriate Actions — (LD 15)

• Reasonable investigation actions

  • Examples:

    • Questioning person about identity and conduct

    • Contacting other people to confirm explanations, verifying ID, warrant checks

    • Checking premises, examining objects, or contacting others to determine if crime actually occurred

    • Bringing victim to suspect for ID purposes

• Detainee is not obligated to answer questions

  • But if flee from lawful detention or intentionally give misleading/wrong answers —> possible 148(a)(1)

  • If person answers all questions and suspicion decreases —> release detainee

Detention — Length and Transport — (LD 15)

• Length — no longer than necessary to resolve reason for stop

  • Officer observations can increase suspicion to justify longer detention or even provide probable cause to arrest

• Transportation is typically only if person is under arrest but exceptions are:

  • If detainee gives permission

  • impractical to bring victim/witness to detainee’s location

  • detention conditions are dangerous to person and/or officer

  • independent probable cause to arrest the subject

Search and Seizure during Detention — Terry v. Ohio, Scope and Conditions of Search, Discovery — LD (15)

• Terry v. Ohio — Officer can stop and frisk suspect if officer has reasonable suspicion that crime is afoot and responable suspicion person is armed and dangerous

• Scope of search:

  • Search of outer clothing to locate possible weapons for purpose of public/officer safety

• Conditions/factors that support reasonable suspicion to believe person is armed and dangerous:

  • Person’s clothing (e.g. bulge and the location of it)

  • Person’s actions (e.g. furtive movements, reaching, nervous, lying)

  • Prior knowedge of person carrying weapons/being violent, Isolated location where officers unlikely to received immediate aid if attacked

  • time of day

  • reason for detention

  • similar cursory search of companion revelaed a weapon

  • Totality of the Circumstances

• Officer can remove object that they believe is weapon/dangerous instrument

  • If contraband found with undue manipulation, officer should seize and then place person under arrest and conduct full search

Detention — Use of Force & Physical Restraints — (LD 15)

• If person attempts to leave during detention, officer can use reasonable force/physical restraints to compel person to remain

  • Handcuffs and/or place person in back of patrol car

Arrest — Definition, Probable Cause, Difference from Detention — (LD 15)

• Taking a person into custody based on probable cause

  • As opposed to detention that is strictly to investigate — lower threshold with reasonable suspicion

• Probable cause — set of facts that would cause person of ordinary care to entertain strong and honest belief that person to be arrested is guilty of a crime

  • Can be established by:

    • Direct investigation/report

    • Circumstantial evidence

    • Second-hand statements from reliable sources

    • Training and experience

Arrest — Elements of Lawful Arrest — (LD 15)

• PC 834 — Arrest may be made by peace officer or private person AND arrested person must be taken into custody, in a case in the manner authorized by law

• PC 835 — Arrest may be made by actual restraint of the person, or by the person’s submission to the officer’s authority

• PC 835a — Reasonable force may be used to effect an arrest, prevent escape, or overcome resistance

Arrest — Authority to Arrest per PC 836 — (LD 15)

• Officer can arrest:

  • Pursuant to a warrant

    • Court/DA Warrant

    • Ramey Warrant (supported by statement of probable cause affidavit)

  • Without a warrant

    • Whenever officer has probable cause to believe person to be arrested has committed a crime in their presence

      • “In their presence” — Apparent to officer’s senses and certain devices that enhance their senses (e.g. binoculars, flashlight, dog)

    • When the person arrested has committed a felony, although not in their presence

    • Whenever they have probable cause to believe the person to be arrested has committed a felony, whether felony was committed or not

Arrest — Information Required at Time of Arrest — (LD 15)

• Per PC 841, any person making arrested must convey three pieces of information to individual at time of arrest:

  • Intent — “you are under arrest”

  • Cause — for what crime/warrant

  • Authority — non-uniformed officer must show ID, uniformed officer with marked car does not, and private person must state their authority to make arrest

• EXCEPTIONS:

  • When individual to be arrested is (1) actually committing the offense or (2) attempting to escape

• If officer arrests/detains a foreign national for >2 hours, must advise individual that they have right to contact their consulate (expect as specified) and officer’s agency must notify consulate of arrest/detention

Arrest — Elements of Warrantless Arrest for Felony — (LD 15)

• Officer can make felony arrest AT ANY TIME if they have probable cause to believe person arrested has:

  • committed felony in officer’s presense (836(a)(1))

  • committed a felony, not in officer’s presence (836(a)(2))

  • committed a felony, regardless if it was actually committed or not (836(a)(3))

Arrest — Elements for Warrantless Arrest for Misdemeanors — (LD 15)

• Officer can only make misdemeanor arrests between the hours of 6 AM and 10 PM

• EXCEPTIONS:

  • Misdemeanor was committed in officer’s presence

  • Crime was committed in public place

    • Public place — place where mailman/amazon person can access

  • Arrestee already in custody for another charge

  • Eight Arrestable crime even if not committed in officer’s presence:

    • Crime committed by juvenile (WI 625)

    • DUI (VC 40300.5 & 40600)

    • Carrying loaded firearm on person or in vehilce in any public place/street (PC 25850(a))

    • Violating domestic protective/restraining order, when officer was responding to call alleging the same (PC 836(c)) [MANDATORY ARREST]

    • Commiting assault/battery on spouse, cohabitant, or parent of their child (PC 836(d))

    • Committing an asault or battery on school property while school is in session (PC 243.5)

    • Commiting assault/battery against working firefighter, EMT, or mobile intensive care paramedic (PC 836.1)

    • Carrying concealed firearm at airport (PC 836(e)(1)(2))

Arrest — Elements of a Court Ordered Warrant & the Contents — (LD 15)

• Written order signed by judge, directing & commanding officer to arrest person named in warrant for offense named in warrant

  • Requires probable cause through affidavit

• Must contain:

  • Name of defendant

  • Crime suspected of committing

  • Time & city/county of warrant issued

  • Signature of issuing authority with title of office

  • Name of court/issuing agency

  • Amount of bail

Arrest — Elements of a Ramey Warrant & the Contents — (LD 15)

• Arrest warrant obtained before a criminal complaint has been filed (PC 817)

• Contains same info as a court-ordered arrest warrant

Arrest — Requirements for Lawful Access for Entry into Dwelling — (LD 15)

• Officer needs lawful access to enter dwelling

• Even if officer sees object from plain view, they cannot just enter a private dwelling without a warrant to seize it, even if it is contraband/evidence

  • Private dwelling — any place person resides or areas of business not open to general public

  • Suspect has “standing” on private property

• Lawful access obtained via:

  • Consent

  • Exigent circumstances

  • Officer entered area for other purpose (e.g. parole/probation search)

Arrest — Knock and Notice for Entry into Dwelling — (LD 15)

• Knock and Notice — officer must give notice to person inside before entering dwelling ot make arrest, with or without warrant (PC 844)

• Not required to enter dwelling to make an arrest if there is consent, exigencies, parole, or searchable probation

• Procedure:

  • Announce presence and identify as officers

  • State purpose and demand entry

    • Wait reasonable amount fo time (based on circusmtances) and force entry, if necessary

• Exceptions:

  • Officer given consent to enter at scene

  • Exigent circumstances:

    • Hot pursuit

    • Imminent threat to life, property, of suspect’s escape, or of destruction of evidence/contraband

Arrest — Authority of Private Persons to Arrest — (LD 15)

• Private person can make felony and misdemeanor arrest per PC 834 & 837

  • May arrest individual if felony has been committed & arresting person has probable cause to believe individual committed felony

  • May arrest for misdemeanor if committed in their presence

• Private person can also use reasonable force to amke arrest

• When making private person arrest, person is required to, without unnecessary delay:

  • Take person before a judge

  • Deliver arrested person to officer

• Warrantless search allowed for felonies

  • 4th Amendment does not apply to private person searches

Arrest — Peace Officer Duty in Response to Private Person Arrest — (LD 15)

• Officer can:

  • Release

  • Take arrestee to jail/court

  • Cite individual — misdemeanor

Arrest — Officer Disposition after Arrest — (LD 15)

• Arrest Warrant —> follow warrant instructions

  • For misdemeanor, may be cite & release or transport to jail

• Infraction —> cite and release with signed notice to appear

  • Exception — failure to present satisfactory ID or refuses to sign or fails under exception in PC 853.6

• Misdemeanor —> Cite and Release with promise to appear or posted bail

• Exceptions to misdemeanor cite and release per PC 853.6(i) — (take to jail instead):

  • Person intoxicatedf that they are danger to self/others

  • Person requires medical exam/care or is unable to care for self

  • Person arrested for one or more circumstances of CVC 40302 and 40303

  • One or more outstanding arrest warrants for person

  • Prosecution would be jeopardized if person was immediately released

  • Reasonable likelihood that offense(s) would continue/resume, or safety would be endangered by release of person

  • Arrestee demanded to be taken before judge/refused to sign

  • Reason to believe that person would not appear at time & place specified in notice

  • Arrestee subject to PC 1270.1

  • DOMESTIC VIOLENCE

    • Misdemeanor violation of protective court order

    • Pursuant to agency policy regarding response to domestic violence

Arrest — Warrantless Arrest Procedure after Arrest is Made — (LD 15)

• Arrestee should be taken before nearest judge to be arraigned

• Arraignment must occur within 48 hours of arrest, including weekends and holidays

• Five circumstances that officer releases person arrested without warrant:

  • Insufficient grounds for criminal complaint

  • Arrest for intoxication only & no further proceedings desirable

  • Arrest was for 11550 HS and person taken to hospital for treatment and no further proceedings desirable

  • Arrest was for DUI and person taken to hospital for treatment and no further proceedings desirable

  • Person was taken to medical facility for treatment and mental health evaluation, and no futher proceedings desirable

Arrest — Phone Calls & Visitation — (LD 15) (Not on TTS)

• Adults — 3 complete phone calls minimum

  • Must find out if adult is custodial parent within three hours

    • IF SO, additional two complete calls to arrange childcare

• Juvenile — 2 complete phone calls minimum no later than 1 hour after taken into custody

• Visitation

  • Attorney, physician, or surgeon can visit at any time

Arrest — Exceptions to Powers of Arrest & Statute of Limitations — (LD 15)

• Individuals that have full immunity

  • Diplomatic agent, consular officer, and consular service staff

• Statute of Limitations

  • Most Misdemeanor — 1 year

  • Most felonies — 3 years

  • Death penalty/life imprisonment crimes — no limit

  • Sex crimes, crimes against children, etc. — can vary

Miranda — Purpose and Advisement — (LD 15)

• Purpose

  • Ensures any statement made during custodial interrogation is not “compelled'“ due to coercive environment and inadmissible

• Advisements

  • 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

Miranda — When Required — (LD 15)

• CUSTODY + INTERROGATION

  • Custody — formal arrest or subject to restraints associated with formal arrest

  • Interrogation — Engages in direct/express questioning of person about a crime OR uses words/conduct reasonably likely to elicit incriminating response

• NOT REQUIRED FOR VOLUNTEERED STATEMENT

• ONLY APPLIES TO TESTIMONIAL COMMUNICATION (not handwriting samples, voice samples, etc.)

Miranda — Administration Process — (LD 15)

• Three step process:

  • Advisement (reading of rights)

  • Understanding (person understands each advisement)

  • Waive (give up) or invoke (assert) rights

Miranda — Waiver and Types of Waivers — (LD 15)

• Waiver must be knowing and voluntary

  • Knowing — person’s understand the nature of the rights and consequences of waiving

  • Voluntary — free and deliberate choice, not result of coerction

• Waiver can be Expressed, Implied, or Conditional

  • Expressed —- ansers yes/no question about going forward with questioning

  • Implied — acknowledges understanding and exhibits conduct indicating waiver of rights

  • Conditional — acknowledges understanding advisements and willing to go forward, but places limitation on answering questioning (e.g. no recording, only answer some questions)

Miranda — Invoking — (LD 15)

• If either right to remain silent or right to counsel is INVOKED, all interrogation must stop

• Right to remain silent can be invoked by any words or conduct reflecting unwillingness to discuss case

  • Circumstances of re-initiation under right to remain silent:

    • period of time has gone by (~10 days) AND

    • officers have new info AND/OR

    • officers want to ask about different crime

• Right to counsel can only be invoked by clear and express request for attorney

  • Re-initation can only be done with attorney present

• Suspect may re-initiate — make sure to re-admonish, obtian valid express wavier, interrogate, and document

Miranda — Exceptions — (LD 15)

No Miranda needed if interrogation motivated by concern for someone’s/public safety

Interview vs. Interrogation — (LD 15)

• Interrogation — questioning suspects

  • Likely to elicit incriminating response

• Interview — questioning of non-suspects

Purpose of Interrogation — (LD 15)

• Truth seeking, motivating subjects to provide accurate information

• Identifying individuals invovled in crime

• Corroborating facts of crime

• Obtaining info that could lead to recovery of evidence/property

Admission vs. Confession & Inadmissible Confession — (LD 15)

• Confession — acknowleges commission of all of the elements of a crime

• Admission — acknowledges certain facts that tend to incriminate individual but fall short of a confession

• Inadmissible Confession

  • Miranda Rights were violated

  • Statement was coerced

  • Arrest/statement was result of an illegal search and seizure

Constitutional Protections of 4th Amendment — (LD 16)

• Avoid unlimited actions/intrustions by government

• Protect person’s:

  • Privacy

  • Liberty

  • Possession of Property

Definition of Search, Seizure of Property, Seizure of Person — (LD 16)

• Search — When expectation of privacy that society is prepared to consider reasonable is infringed upon by government

• Seizure of Property — When there is some meaningful interference when an individual’s possessory interest in that property by government

• Seizure of Person — when peace officer physically applies force OR person voluntarily submits to peace officer’s authority

Concept of Reasonable Expectation of Privacy, Examples, and Exceptions — (LD 16)

• Can exist almost anytime and anyplace as long as:

  • individuals have indicated that they personally (subjectively) expect privacy in that object/area

  • their expectation is one which society is prepared to recognize as legitimate

• Higher Expectation of Privacy (block access/view)

  • Backyard with solid wood fence, gated front yard, gated drive way, garbage can on property/curtilage

• Lower Expectation of Privacy (allows access/view)

  • Rod iron fence, short wall, garbage can on side of road

• Exceptions

  • Open Fields — so open to public view

  • Overflight

    • Aircraft must be (1) at altitude permitted by FAA regulations and (2) operated in “physically nonintrusive manner”

Standing — (LD 16)

• Established by:

  • Ownership, lawful possession, authority, or control of area searched or property seized

• Only exists if person has reasonable expectation of privacy in place/thing searched or seized

  • If person has standing, can challenge validity of search and/or seizure

Probable Cause to Search & Exclusionary Rule — (LD 16)

• Three elements that must be articulated:

  • Crime has occurred/is about to occur

  • Evidence pertaining to crime exists

  • Evidence is at the location they wish to search

• If search/seizure is excluded —> inadmissible at trial

Probable Cause for Search Warrant — (LD 16)

• Enough credible information to provide fair probability that object/person sought will be found at place they want to search

  • Can come fron officer training/experience as well as collective knowledge of all officers involved investigation and their inferences

Requirements needed to secure an area pending issuance of search warrant (Freezing a Scene) — (LD 16)

• Requires probable cause AND exigencies, from surrounding facts/circumstances, that evidence will likely be destroyed/removed before obtaining search warrant

  • Refusal of consent to enter DOES NOT give justification to freeze a scene

• Sitautions where you can freeze:

  • If suspect has been arrested inside location

  • If companions of suspect may destroy items sought upon learning of arrest

Search Warrant Time Limits — (LD 16)

• 10 days to serve warrant, starting on day after warrant is issued until midnight of 10th day

  • No exceptions for weekends/holidays

  • If it does expire, officer must:

    • Get a new warrant

    • Resubmit expired warrant so it may be reissued/revalidated

• Can only be served between 0700 and 2200 hours (if search starts before 2200, no night service needed)

  • Unless night service is authorized after officer show good cause (e.g. decrease danger to officers, property likely be gone, sold, or removed by dawn, drug sale occurs at location at night)

• Return of warrant and property must be made within 10 days

  • BUT if 10th day falls on weekend/holiday, officer can return warrant on next business day

Knock and Notice Requirement — (LD 16)

• Knock/announce presence

• Identify themselves as peace officer

• State their purpose

• Demand entry

• Wait reasonable amount of time

• If necessary, forcibly enter premises if refused admittance

  • Refusal can be based on (1) verbal statement (2) individual conduct (3) passage of reasonable amount of time

• Exceptions

  • Compliance would result in harm to other officers/individuals OR destruction of evidence

Scope & Specificity of Search Warrant — (LD 16)

• Warrant must be specific:

  • statutory grounds for issuance

  • identification of area/person that may be searched

    • Identification of items to be seized

• If warrant is for general area (i.e. residence, car, person), it includes containers

  • If not for general area —> container must be described as completely as possible in warrant

Nexus Rule — (LD 16)

• NEXUS — reasonable connection/link between two or more items

• Officer may seize items not listed in warrant if:

  • items are discovered while officer(s) is conducting lawful search for listed evidence AND

  • officer has probable cause to believe item is contraband, evidence of criminal behavior, or would otherwise aid in the apprehension/conviction of criminal

Plain View Seizure — (LD 16)

• NOT A SEARCH due to no reasonable expectation of privacy for items in plain view

• Officer can seize as long as they have:

  • Probable cause

  • lawful right to be in location

  • lawful access to item

    • Commonly obtained via consent, exigent circumstances (e.g. possible destruction of evidence), or entry into area for some other purpose (e.g. parole/probation search)

Cursory/Frisk/Pat Search — (LD 16)

• Warrantless search limited to outer clothing that is only searching for weapons

• For it to be lawful:

  • person must be lawfully detained

  • Officer must have specific articulable facts that led them to reasonably believe that person is dangerous/may be carrying weapon

    • Can be based on clothing (e.g. bulge), actions (e.g. nervous, furtive movement), prior knowledge of weapons, location, etc.

• Contraband can only be seized if officer is immediately recognized to be contraband

• Container can only be seized and opened if reasonable to believe it can be used as weapon/contain a weapon

• Can reach inside pockets only if object reasonably felt like weapon OR clothing was so rigid/heavy that possibility of weapon could not be ruled out

Consent Search — (LD 16)

• Consent must be voluntary AND obtained from person with apparent authority or to give that consent

• Scope

  • Limited to what individual consents to (explicity or implicitly)

  • Can be withdrawn at any time and must be honored

Search pursuant to Exigent Circumstances

• Scope of search — Only for what is reasonable in order to secure/end emergency

  • Can seize anything in plain view if there is probable cause to believe item is contraband/evidence

• Conditions

  • Imminent danger to person’s lfie/safety (DV, child abuse, sick/injured person)

  • Serious damage to property (fire, explosion)

  • Imminent escape of suspect (hot/fresh pursuit)

  • Imminent destruction or removal of evidence

• Knock and notice not required

• Re-entry requires search warrant or consent

• Officer cannot create exigency to enter property

Search Incident to Arrest — (LD 16)

• Necessary Conditions:

  • probable cause for lawful arrest exists

  • Suspect taken into custody

  • Search is contemporaneous with arrest

    • Contemporaneous — at/near time and/or place of arrest

    • while arrestee is still on scene

• Scope

  • Can search arrestee’s person and area reasonably within their control (arm’s reach), which include area where they can:

    • Grab a weapon

    • Obtain any item that could be used as weapon

    • Destroy evidence

Protective Sweep Search — (LD 16)

• Occurs if officer is lawfully inside/outside home and have specific facts to believe there may be other people in the home

• Scope

  • Limited to spaces immediately adjoining area of arrest:

    • where person could be hiding

    • from which an attack could be immediately launched

  • Plain view seizures of contraband/evidence is allowed

Parole/Probation Search — (LD 16)

• Probation — no reasonable suspicion required

  • Confirm search conditions prior to searching

• Parole — no reasonable suspicion required

  • Can search person, residence, and any property under their control

• Searches cannot be done to harass probationer/parolee