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Making a Citizen’s Arrest in California

In most situations, an arrest made without an arrest warrant for a misdemeanor offense that was not committed in the presence of police is unlawful and a violation of the Penal Code and the 4th Amendment. (See P.C. 836). Felony arrests are not subject to this rule.

However, there are a few situations where such an arrest could be lawful despite the above being true. For instance: misdemeanor Domestic Violence (see P.C. 836(d)), misdemeanor Battery on Emergency Personnel (see P.C. 836.1), certain misdemeanor DUI arrests (See V.C. 40300.5), and Citizens’ Arrests (see Penal Code 837) all do not require an arrest warrant or that the offense had been committed in the presence of police in order to be lawful.

When a misdemeanor is committed in the presence of a person who is not a police officer, an arrest by arrest warrant or a Citizen’s Arrest is likely the only way to lawfully arrest the individual.

When a person commits a petty theft against a store, and the store employee detains the person in the store, calls the police, and the police come and arrest the person, that is an example of a Citizen’s Arrest.

Pursuant to Penal Code 837, and since 1872, a private person may arrest another:

  1. For a public offense committed or attempted in his presence.
  2. When the person arrested commits a felony, although not in his presence.
  3. When a felony has been in fact committed, and he possesses reasonable cause the person arrested to have committed it.

An example of a California misdemeanor is as follows:

Petty Theft – This occurs when the alleged property taken has a value of $950 or less. This usually occurs in a store where store security approaches a suspect after they have exited the store and asks them to come inside to the security office. This is a Citizen’s Arrest.

Normally security will call local law enforcement and the police have an option whether they issue a citation with a promise to appear in court or take you to jail where you will be fingerprinted, photographed, and released thereafter with a court date and a promise to appear in court.

An example of a felony may be vandalism which could be a misdemeanor or a felony depending on the circumstances and the value of the property vandalized.

If a citizen chooses to arrest someone, he/she could either make an arrest on his/her own or legally ask for assistance from others to make an arrest. If possible, the best practice is to: call 911; tell the dispatcher you wish to make a citizen’s arrest; advise them of the reasons for the arrest; and request the assistance of a police officer. A police officer may be able to physically effectuate the arrest for you.

It is important for a citizen to not only report the offense to 911, but also personally speak with the officer when they arrive, identify the perpetrator to the police officer, and tell the officer they wish to make a Citizen’s Arrest.

After calling 911, the following procedures a person must adhere to are recommended by California courts:

  • The citizen should inform the individuals about the arrest;
  • The citizen should inform the individual about the reason for the arrest;
  • The citizen should inform the individual that he/she has the power to make an arrest, if possible; and,
  • If applicable, the citizen should tell the perpetrator that law enforcement officials have been notified.

A citizen should attempt to not use force when arresting another person or reduce the amount of force used. If excessive or unwarranted amount of force is used to make an arrest, a citizen could be held criminally and civilly liable.

A citizen can use reasonable force to arrest a perpetrator. Whether or not the amount of force used is “reasonable” is a determination based upon all of the facts in a given case.

Citizens should be mindful of his/her safety, as well as the safety of the person being arrested.

If you were arrested by a citizen or the police, there are many reasons why the arrest may have been unlawful. An unlawful arrest may require suppression of evidence or dismissal of your case.

Please contact Ivan Morse or Ryan Smith at Morse & Associates to receive a free consultation regarding your case at 925-828-5307 or visit our website at www.ivanmorselaw.com.

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