Legal Authority for Arrests:

Arrests by a Peace Officer

Arrests by a Peace Officer:

P.C. §§ 834, 836:  A peace officer "may" make an arrest under the following circumstances:

• Pursuant to an arrest warrant; or
• Whenever the officer has reasonable (or probable) cause to believe the suspect has committed a crime; and
• Whenever the officer has reasonable (or probable) cause to believe a crime has in fact been committed.

Note that only "reasonable" or "probable" cause is needed:  The fact that the officer may be mistaken as to defendant's guilt, of that a crime even occurred, is irrelevant so long as the arrest is made with probable cause to believe he is guilty and that a crime occurred.  The arrest would still be lawful.

The use of the word "may" in the statute indicates that the officer is under no obligation to make an arrest.  It is a matter of discretion whether or not, despite the existence of "probable cause," an arrest will be made.  An officer is not generally (absent a command to do so in a particular, applicable statute) required to arrest an individual despite the officer's determination that an arrest could legally be made.  (Michenfelder v. City of Torrance (1972) 28 Cal.App.3^rd 202, 206-207; Tomlinson v. Pierce (1960) 178 Cal.app.2^nd 112, 116.)

P.C. § 150; "Posse Comitatus:"  Further, a uniformed peace officer, or any peace officer described in P.C. §§ 830.1, 830.2(a), (b), (c), (d), (e), or (f), or 830.33(a), has statutory authority to command any "able-bodied" individual over the age of 18 to assist in an arrest.  Refusing such a command is punishable by a fine of from $50 to $1,000.

In a domestic violence situation (see P.C. §§ 13700 et seq.), a peace officer:

• Must make a good faith effort to explain to the victim/witness of his or her right to make a private person's arrest (P.C. § 836(b)), or
• When responding to a situation involving the violation of a domestic violence restraining or protective order (per Fam. Code, §§ 2040 et seq., 6200 et seq., or 7700 et seq.), or of a protective order issued pursuant to P.C. § 136.2 (Victim or Witness Intimidation), the peace officer him or herself must, absent exigent circumstances, make the arrest if, under the circumstances, if it is lawful to do so. (P.C. §§ 836(c)(1), 13701(b)) (See "Misdemeanor ‘In The Presence' Requirement," below.)

Arrests by a Private Person

Arrests by a Private Person:

P.C. §§ 834, 837:  A private person may make an arrest under the following circumstances:

• Whenever the person has reasonable (or probable) cause to believe the suspect has committed a crime, and
• Whenever a criminal offense has in fact been committed.

While a private person may be mistaken as to who committed a particular crime, there is no room for error as to whether a crime actually occurred.

Exception:  P.C. § 490(f)(1):  A merchant, library employee, or theater owner may act upon probable cause that an offense is occurring in detaining a shoplifter, book thief, or someone who is attempting to operate a video recording device in a theater.

Note; the section refers to such a contact as a "detention," as opposed to an arrest.

Private persons, like police officers, may summon others to assist in an arrest.  (P.C. § 839)  However, there is no penalty for a person refusing to help.

The private person may delegate to a peace officer his or her authority to actually perform the arrest for the person.  (People v. Sjosten (1968) 262 Cal.App.2^nd 539.)

A private person making an arrest must, without unnecessary delay, take the person arrested before a magistrate or deliver him or her to a peace officer.  (P.C. § 847)

In a domestic violence situation (see P.C. §§ 13700 et seq.), a peace officer must make a good faith effort to explain to the victim/witness of his or her right to make a private person's arrest (P.C. § 836(b))

The provision that a peace officer commits a felony should he or she refuse to take a subject who was arrested by a private citizen, even when the officer determines that the arrest was made without probable cause (P.C. § 142), was amended with the addition of subd. (c), which states that; "This section shall not apply to arrests made pursuant to Section 837;" i.e., a private person's arrest.

While taking a citizen's arrestee when not supported by probable cause, as it was widely believed P.C. § 142 as previously written required, would not subject the officer to any civil liability in state court (Kinney v. County of Contra Costa (1970) 8 Cal.App.3^rd 761, 767-769.), the Ninth Circuit Court of Appeal was of the opinion that the officer in such a situation would be subject to federal civil liability.  (Arpin v. Santa Clara Valley Transportation Agency (9^th Cir. 2001) 261 F.3^rd 912, 924-925.)  The addition of subdivision (c) eliminates that conflict.

The Stale Misdemeanor Rule applies to private person's arrests as well.  (See Green v. Department of Motor Vehicles (1977) 68 Cal.App.3^rd 536; arrest made some 35 to 40 minutes after the observation held to be lawful; see also Ogulin v. Jeffries (1953) 121 Cal.App.2^nd 211; 20 minute delay; arrest lawful.)  (See below)

Note:  P.C. § 836 is not restricted by its terms to adults.  There is no authority for the argument that minors cannot also make citizen's arrests, or that the phrase "private persons" is restricted to adults.

Out of State Officers in Fresh Pursuit

Out-of-State Officers in "Fresh Pursuit:"

P.C. § 852.2:   "Any peace officer of another State, who enters this State in fresh pursuit, and continues within this State in fresh pursuit, of a person in order to arrest him on the ground that he has committed a felony in the other State, has the same authority to arrest and hold the person in custody, as peace officers of this State have to arrest and hold a person in custody on the ground that he has committed a felony in this State."

The arresting officer is then to take the arrestee "immediately before a magistrate" of the county in which the arrest is made.  The magistrate is to determine whether the person had been lawfully arrested.  If so, the arrestee is to be held for extradition.  If not, he is to be "discharge(d)."  P.C. § 852.3

Federal Officers

Federal Officers:

P.C. 830.8(a):  Federal criminal investigators and federal law enforcement officers are not California peace officers.  However, after having been certified by their agency heads as having satisfied the training requirements of P.C. § 832, or the equivalent thereof, they may exercise the powers of arrest of a California peace officer under the following circumstances:

• Any circumstance specified in P.C. § 836 (see above) or W&I § 5150 (Mental patients who are a danger to themselves, others, or who are gravely disabled).
• When incidental to the performance of their federal law enforcement duties.
• When requested by a California law enforcement agency to be involved in a joint task force or criminal investigation.
• When probable cause exists to believe that a public offense that involves immediate danger to persons or property has just occurred or is being committed.

                                                When arresting pursuant to P.C. § 830.8, an arrestee must be taken immediately before a magistrate or delivered to a peace officer, as specified in P.C. § 847.

Federal officers of the Bureau of Land Management and the Forest Service of the Department of Agriculture have no authority to enforce California statutes without the written consent of the sheriff or the chief of police in whose jurisdiction they are assigned.

See also subd. (d) providing these officers with similar powers during a "state of war emergency or a state of emergency," as defined in Gov't. Code § 8558.

                                    P.C. § 830.8(b):  Federal employees who have met the training requirements of P.C. § 832 are peace officers when they are engaged in enforcing applicable state or local laws on property owned or possessed by the United States government, or on any street, sidewalk, or property adjacent thereto, so long as they have the written consent of the sheriff or the chief of police respectfully, in whose jurisdiction the property is situated.

P.C. § 830.8(c):  National Park Rangers are not California peace officers.  However, after having been certified by their agency heads as having satisfied the training requirements of P.C. § 832.3, or the equivalent thereof, they may exercise the powers of a California peace officer under any circumstance specified in P.C. § 836 (see above) or W&I § 5150 (Mental patients who are a danger to themselves, others, or who are gravely disabled), for violations of state or local laws, but only:

• When incidental to the performance of their federal duties; or
• When requested by a California State Park Ranger to assist in preserving the peace and protecting state parks and other property for which California State Park Rangers are responsible.

                                    P.C. § 830.8(e) further provides for limited law enforcement powers for a qualified person who is appointed as a Washoe tribal law enforcement officer.

The San Ysidro Port of Entry, in San Diego, is state land and not federal, although the attached facilities belong to the federal government.  A federal Immigration and Naturalization Agent at that location may therefore lawfully make a citizen's arrest for a state criminal violation (e.g., driving while under the influence) and turn him over to state and local law enforcement officers.  (People v. Crusilla (1999) 77 Cal.App.4^th 141.)

Bounty Hunters

Bounty Hunters, or "Bail Enforcement Agents," have long exercised a Common Law power to locate, arrest, and return to custody persons released from custody on bail provided by a bail-bondsman, when the person fails to make a necessary court appearance.  (Taylor v. Taintor (1872) 83 U.S. 366 [21 L.Ed. 287].)

Because state courts have found that a bounty hunter's broad authority comes from the implied terms of a private agreement between the bondsman (i.e., a private citizen) and the defendant, bounty hunters are unburdened by many of the constitutional and statutory restrictions which control the conduct of state law enforcement officers.  (Reese v. United States (1969) 76 U.S. 13, 22 [19 L.Ed. 541, 544].)

Generally, "the common-law right of recapture is (only) limited by the reasonable means necessary to effect the arrest."  (Lopez v. Cotter (10^th Cir. 1989) 875 F.2^nd 273, 277.)

Bounty hunters "enjoy extraordinary powers to capture and use force" in tracking down and arresting fugitives.  (Kear v. Hilton (4^th Cir. 1983) 699 F.2^nd 181, 182.)

Not being agents of the state, bounty hunters are not restricted by the usual constitutional constraints that apply to law enforcement.  (See People v. Johnson (1947) 153 Cal.App.2^nd 870, 873; Landry v. A-Able Bonding, Inc. (5^th Cir. 1996) 75 F.3^rd 200, 203-205; United States v. Rhodes (9^th Cir. 1983) 731 F.2^nd 463, 467.)

E.g.:  The "Exclusionary Rule" does not apply to the actions of a bounty hunter.  (People v. Houle (1970) 13 Cal.App.3^rd 892, 895.)

California has only recently sought to regulate the licensing and training requirements for bounty hunters.  (See P.C. §§ 1299 et seq., and Ins. Code § 1810.7.)

Other provisions provide for the arrest of a bail jumper by the bounty hunter when the bounty hunter's authority is in writing upon a certified copy of either the undertaking of bail or the certificate of a bail deposited with the court.  (P.C. §§ 1300, 1301)

P.C. § 1301 also requires the bondsman or bounty hunter to bring the bail jumper before a magistrate, or deliver him to the custody of a sheriff or police department, within 48 hours after arrest or after being brought into this state, excluding weekends and holidays.  It is a misdemeanor to violate this section.

P.C. § 847.5 provides that an out-of-state bounty hunter must first seek an arrest warrant from a local magistrate, filing with the court an affidavit listing the name and whereabouts of the fugitive, certain particulars of the fugitive's offense, and the circumstances of the fugitive's violation of the terms of his bail.  The bounty hunter is also required to bring the fugitive before the magistrate after which a hearing is held.  The magistrate may then authorize the bounty hunter to remove the fugitive from the state.

However, a bounty hunter who ignores the requirements of section 847.5, because he acts outside California's statutory regulations, is not acting "under color of state law," and, therefore, is not civilly liable, at least in a Title 42 U.S.C. § 1983 federal civil rights suit.  (Ouzts v. Maryland National Insurance Co. (9th Cir. 1974) 505 F.2d 547.)

P.C. §§ 1299 et seq., and Ins. Code § 1810.7, provide, by statute, an extensive list of educational, training and procedural requirements necessary before exercising the powers of a bounty hunter.

P.C. § 1299.06:  Its is a legal prerequisite to apprehending a bail fugitive that the bounty hunter have in his or her possession the "proper documentation of authority to apprehend issued by the bail or depositor of bail," as provided for under sections 1300 and 1301, and as briefly referenced above.

P.C. § 1299.07 prohibit any attempts to make a bounty hunter look like, or be identified as, a government employee of and federal, state or local agency.

P.C. § 1299.08 requires that local law enforcement be notified by the bounty hunter when an apprehension of a bail jumper is to be made.

Also, bounty hunters are to comply with all other arrest statutes, including the statutory "knock and notice" requirements (P.C. § 1299.09), and not be in violation of any firearms or other weapons laws.  (P.C. § 1299.10)

Violation of any of the section 1299 requirements is a misdemeanor.  (P.C. § 1299.11)

Arrest Options

Arrest Options:  A peace officer has five options when he or she makes an arrest pursuant to P.C. § 836 or takes custody of a prisoner from a private person, arrested pursuant to P.C. § 837:

Release Without Charges

Release Without Charges: If, after a subject has been arrested, the officer feels that based upon additional information collected, the arrest is not justified (i.e., there is insufficient probable cause), he or she may unconditionally release the prisoner pursuant to authority described in P.C. § 849(b)(1).

If, when arrested by a private person, the person changes his or her mind about wanting to arrest the subject, the prisoner may simply be released without any further action.

Otherwise, any such arrest and release must be documented pursuant to P.C. § 851.6, with a certificate issued to the arrested person by the arresting agency describing such action as a detention only.

The legal status of anyone so released shall be deemed a detention only; not an arrest.  (P.C. § 849(c))

Note:  It is also arguable that a law enforcement officer may choose to release a subject for whom probable cause does exist.  There is nothing in the case or statutory law that says that P.C. § 849(b) is the exclusive authority for releasing an arrested prisoner.

Note, however, P.C. § 4011.10 prohibiting law enforcement from releasing a jail inmate for the purpose of allowing the inmate to seek medical care at a hospital, and then immediately re-arresting the same individual upon discharge from the hospital, unless the hospital determines this action would enable it to bill and collect from a third-party payment source. 

Seek an Arrest Warrant

Seek an Arrest Warrant: (I.e., a "Notify Warrant.") Should the peace officer determine that, although probable cause for an arrest exists, the person may not be lawfully arrested (e.g., a misdemeanor not in the officer's presence or the private person's presence, or a "stale misdemeanor," (see below; "Legal Requirements of an Arrest"), or as a discretionary option to taking the subject into custody or writing a misdemeanor citation, an arrest report may be filled out with the appropriate notation made (or box, i.e., "□ notify warrant," checked).

This is not an arrest and requires (after a "detention for investigation" during which identification information is collected and a brief investigation is conducted) the immediate release of the subject.  The local prosecuting agency to which the reports are forwarded will then notify the subject of when and where to appear in court to answer to any charges filed in court.  Should the person fail to respond to this notification, an arrest warrant will be sought.

Stopping a suspect in a misdemeanor offense, a noise violation, not occurring in the officer's presence, at least where there are possible alternative, less intrusive methods, of identifying the suspect, is probably unlawful.   The Court is to balance law enforcement's interest in crime prevention with the detainee's interest in personal security from government intrusion.  (See United States v. Hensley (1985) 469 U.S. 221 [83 L.E.2^nd 604].)  In a misdemeanor situation, law enforcement's interest may not outweigh the suspect's.   (United States v. Grigg (9^th Cir. 2007) 498 F.3^rd 1070.)

Issuance of a Misdemeanor Citation

Issuance of a Misdemeanor Citation: A misdemeanor arrest for an offense which is not "stale" and which did occur in the officer's (or a private citizen's) presence, but when booking is either not legal or not appropriate under the circumstances, may result in the subject being cited and released at the scene.

Misdemeanor citations are in fact an arrest, although the subject is released without booking, and must therefore be conducted according to the rules on misdemeanor crimes occurring in the officer's presence, etc.  (See below; "Legal Requirements of an Arrest")

Misdemeanor arrestees are, as a general rule, to be cited and released unless one of the exceptions listed in P.C. § 853.6(i) applies.  (P.C. § 853.6(a))

Note also that all persons released on a misdemeanor citation must be booked and fingerprinted at the arresting agency at some point prior to appearing in court, and should be so notified of their responsibility to do so.  (P.C. § 853.6(g))

Booking into Jail

Booking into Jail: When one or more of the circumstances listed in P.C. § 853.6(i) does exist, and the subject may otherwise lawfully be arrested (e.g., a felony arrest, or a misdemeanor in the officer's or private person's presence which is not "stale."), the arrested person may be arrested and transported to county jail for booking.

Take the Subject Directly Before a Magistrate

Take the Subject Directly Before a Magistrate: When court is in session, and a judge is available, a subject may be transported directly to the judge.

The offense must be a felony, or the conditions for a lawful misdemeanor arrest must be present (i.e., in the presence of the officer or private person making the arrest and not stale).

See also P.C. § 853.5 and V.C. §§ 40300.5, 40302, 40303, 40304, and 40305 (below), for conditions under which persons arrested for certain infractions or misdemeanors may be taken immediately before a magistrate.