P.C. § 841: Information to be Provided: The person making the arrest must inform the person being arrested of the following:
- The intention to arrest him;
- The cause of the arrest (i.e., the charges); and
- The authority to make it.
(People v. Superior Court (Logue) (1973) 35 Cal.App.3rd 1, 5.)
Exceptions: There is no need to comply with the above when:
- The person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of, or an attempt to commit, an offense (See People v. Darnell (1951) 107 Cal.App.2nd 541 545; People v. Thomas (1957) 156 Cal.App.2nd 117, 130; People v. Valenzuela (1959) 171 Cal.App.2nd 331, 333.); or
- The person to be arrested is pursued immediately after commission of the offense, or after an escape. (See People v. Pool (1865) 27 Cal. 572, 576; Allen v. McCoy (1933) 135 Cal.App. 500, 508; People v. Campbell (1972) 27 Cal.App.3rd 849, 854; and Johanson v. Department of Motor Vehicles (1995) 36 Cal.App.4th 1209, 1218.)
Even where an exception applies, if the arrestee asks what he or she is being arrested for, he or she must be told. (P.C. § 841)
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Advisal to Arrestee/Detainee: Upon the arrest and booking or detention for more than two (2) hours of a known or suspected foreign national, the arrestee/detainee shall be advised "without delay" that he or she has a right to communicate with an official from the consulate of his or her native country. If the arrestee/detainee chooses to exercise that right, the peace officer shall notify the pertinent official in his or her agency or department of the arrest or detention and that the foreign national wants his or her consulate notified.
This is a statutory enactment of the 1963 Vienna Convention on Consular Relations, Article 36; a Treaty signed by the United States and 169 other countries.
Although there is some disagreement, it is generally accepted that a foreign national has the "standing" necessary to invoke the provisions of the Vienna Convention in so far as they require notice to an arrestee/detainee of his right to contact his consulate. (See United States v. Superville (Vir. Islands, 1999) 40 F.Supp.2nd 672, 676-678.)
The United States Supreme Court declined to decide whether a foreign national who had not been advised of his rights under the Vienna Convention had an enforceable right in U.S. courts. (Sanchez-Llamas v. Oregon (2006) 548 U.S. 331, ___ [126 S.Ct. 2669, 2677-2678; 165 L.Ed.2nd 557]; assuming for the sake of argument that they did, while specifically declining to decide the issue. Four dissenting opinions would have held that the defendants had a right to raise these issues. (126 S.Ct. at pp. 2693-2698.)
The officer's department is then responsible for making the requested notification. (subd. (a)(2))
The Vienna Convention also provides that any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the authorities "without delay." (Art. 36(1)(b))
The law enforcement official in charge of a custodial facility where a foreign national is housed shall ensure that the arrestee is allowed to communicate with, correspond with, and be visited by, a consular officer of his or her country. (subd. (a)(3))
Local law enforcement agencies are to incorporate these requirements into their respective polices and procedures. (subd. (c))
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Automatic Notice to Foreign Country: Fifty-six (56) countries are listed in subdivision (d) which must be notified of the arrest or detention (pursuant to subd. (a)(1); i.e., more than 2 hours) of one of their foreign nationals "without regard to an arrested or detained foreign national's request to the contrary."
Note: Although Mexico is one of the 170 (which includes the United States) countries that signed the Convention, it is not one of the countries listed that must be automatically notified of the arrest, booking or detention of a foreign national.
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Sanctions for Violations: It has been generally accepted that a violation of the provisions of the Vienna Convention and, presumably, this statute, will not result in the suppression of any evidence. (United States v. Lombera-Camorlinga (9th Cir. 2000) 206 F.3rd 882; People v. Corona (2001) 89 Cal.App.4th 1426; United States v. Rodriguez-Preciado (9th Cir. 2005) 399 F.3rd 1118, 1130.)
Not informing a Japanese national of his right to contact the Japanese consulate upon his arrest is not a violation of the Japan Convention, Article 16(1). Even if Article 16(1) could be interpreted as requiring such notification, a violation would not result in the suppression of the defendant's later statements nor any physical evidence recovered as the result of a consensual search. (United States v. Amano (9th Cir. 2000) 229 F.3rd 801, 804.)
Japan, although a signatory to the Vienna Convention, is not one of the 56 countries listed in P.C. 834c that must be notified upon the arrest or detention of one of their citizens.
The United States Supreme Court, until recently, has rejected appeals on this issue on procedural grounds, declining to decide this issue on its merits. (See Breard v. Greene (1998) 523 U.S. 371 [140 L.Ed.2nd 529].)
However, a number of justices have expressed dissatisfaction with avoiding the issue, in general, and not sanctioning states for violating the Convention, in particular. (See also Torres v. Mullin (2003) 540 U.S. 1035 [157 L.Ed.2nd 454].)
The "International Court of Justice" (ICJ), in a lawsuit brought against the United States by Mexico and decided on March 31, 2004, found that there are 54 death row inmates (27 of which are in California) who were not provided with a notification of their consular rights, in violation of the Vienna Convention. The Court concluded that the offending state and local jurisdictions violating these requirements were "obligated" to review and reconsider these cases. (See Mexico v. United States of America [Avena] (2004) 2004 I.C.J. No. 128.)
The United States Supreme Court, in Sanchez-Llamas v. Oregon (2006) 548 U.S. ___ [126 S.Ct. 2669, 2683-2685; 165 L.Ed.2nd 557], while finding that the rulings of the ICJ deserved "respectful consideration," held that they were not binding upon U.S. courts and declined to follow their guidance on this issue.
In May, 2005, the United States Supreme Court dismissed as improvidently granted a writ of certiorari in a Texas case challenging state law enforcement officers' failure to provide a capital defendant, and Mexican national, with a Vienna Convention notification. (Medellin v. Dretke (2005) 544 U.S. 660 [161 L.Ed.2nd 982].)
The Court in Medellin v. Dretke did not dismiss the writ out of a lack of interest, however, but rather because the defendant initiated new proceedings in the Texas' courts, based upon the ICJ's latest pronouncement (Mexico v. United States of America [Avena], supra.) and an executive order issued by President Bush for American courts to review violations of the Vienna Convention (see International Herald Tribune (3/4/05), that might well resolve the issues.
Even so, four U.S. Supreme Court justices dissented, noting that "(n)oncompliance with our treaty obligations is especially worrisome in capital cases," and that the defendant in this case had raised some "debatable" issues that "suggest the very real possibility of his victory in state court." (Medellin v. Dretke, supra.)
The United States Supreme Court finally ruled on the issues of (1) the proper remedy for an Article 36 violation and (2) whether failing to raise the issue at the trial court level precluded the raising of the issue post-conviction. (Sanchez-Llamas v. Oregon (2006) 548 U.S. 331 [126 S.Ct. 2669; 165 L.Ed.2nd 557] (joined with Bustillo v. Johnson (#05-51), a case from the Virginia Supreme Court). In these two cases, the Court held that a violation of the Vienna Convention does not warrant the suppression of evidence, including a defendant's statements. The Court also held (in the Bustillo v. Johnson portion of the decision) that failing to raise the issue in the state courts will preclude, procedurally, the defendant from litigating the issue by way of a federal writ of habeas corpus.
Not decided was whether the Vienna Convention grants individuals enforceable rights in a state court, or whether the provisions of the Convention are something to be enforced via political channels between countries, the Court assuming, for the sake of argument, that such rights were enforceable without deciding the issue. (126 S.Ct. 2669, 2677-2678.) Four dissenting opinions would have specifically held that the defendants had a right to raise these issues. (126 S.Ct. at pp. 2693-2698.)
But note: An extradited defendant has standing to seek enforcement of an extradition treaty's restrictions on the potential punishment to which he may be subjected. (Benitez v. Garcia (9th Cir. 2007) 476 F.3rd 676; extradited from Venezuela under the understanding that he would not be subjected to the death penalty or a life sentence.)
The Vienna Convention does not provide a foreign national any rights that are enforceable in a 42 U.S.C. § 1983 civil rights suit against law enforcement for violating the person's rights provided for under the Convention. (Cornejo v. County of San Diego (9th Cir. 2007) 504 F.3rd 853.)
Then, in November, 2006, the Texas appellate court refused to comply with the president's command to provide defendants whose Vienna Convention rights were violated with a hearing on the issue, deciding that it would not allow Jose Ernesto Medellin to file a second habeas petition seeking relief. (Medellin v. Texas, 06-984.)
The United States Supreme Court upheld Texas on this issue, finding that the terms of he Vienna Convention are not "self-executing," did not have the force of domestic law, and were not binding on U.S. Courts. The Court also held that the President had no authority to dictate the procedures to be used in state court, and therefore could not legally order state courts to give prisoners hearings on this issue. (Medellin v. Texas (2008) ___ U.S. ___ [128 S.Ct. 1346].)
A case on these issues is also pending before the California Supreme Court and has been awaiting the U.S. Supreme Court's decision in Medellin. (See In re Omar Martinez, S141480)
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Note also P.C. § 834b(a): Law enforcement agencies are required to "fully cooperate" with the United States Immigration and Naturalization Service when it is suspected that an arrested person is in the United States in violation of federal immigration laws.
Subd. (b): Such cooperation is to include the following:
(1) Attempt to verify the legal immigration status of such person through questioning that person and demanding documentation.
(2) Notify the person of his or her apparent status as an alien who is present in the United States illegally and inform him or her that, apart from any criminal justice proceedings, he or she must either obtain legal status or leave the United States.
(3) Notify the California Attorney General and the United States Immigration and Naturalization Service of the apparent illegal status of the person and provide any additional information that may be requested by any other public entity.
Subd (c): "Any legislative, administrative, or other action by a city, county, or other legally authorized local governmental entity with jurisdictional boundaries, or by a law enforcement agency, to prevent or limit the cooperation required by subdivision (a) is expressly prohibited."
The constitutionality of this section is questionable. (See League v. United Latin American Citizens v. Wilson (C.D. Cal. 1995) 908 F.Supp. 755.)
The California Supreme Court is also considering the consequences of violating the provisions of this statute and the Vienna Convention. (People v. Mendoza, S067678.)
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Miranda: Any person who is arrested, or who is subjected to a contact with law enforcement which has the formal attributes of an arrest, and is questioned, must first be advised of, acknowledge his understanding of, and freely and voluntarily waive, his Fifth Amendment right against self-incrimination, pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2nd 694].)
See "Miranda and the Law," Second Edition, to be published January, 2009.
Minors & W&I § 625(c): In any case where a minor (person under the age of 18) is taken "into temporary custody" with probable cause to believe he or she is in violation of W&I §§ 601 or 602 (i.e., delinquent or status offender), or that he or she has violated an order of the juvenile court or escaped from any commitment ordered by the juvenile court, the officer shall advise such minor that anything he says can be used against him or her, and shall advise the minor of his or her constitutional rights including the right to remain silent, the right to have counsel present during any interrogation, and the right to have appointed counsel if he or she is unable to afford counsel.
A Miranda-style admonishment obviously covers these requirements. (See Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2nd 694].)
This admonishment, under the terms of the statute (W&I 625(c)), is to be made whether or not the minor is to be subjected to a custodial interrogation. However, there is no sanction for a failure to comply with the requirements of this statute, unless, of course, the minor is in fact interrogated in which case the standard Miranda rules apply.
Note: The statute does not require that this admonishment be made "immediately" upon arrest.
A minor who is taken "into temporary custody," as authorized by W&I § 625, has been arrested. (In re Charles C. (1999) 76 Cal.App.4th 420, 425; see also In re Thierry S. (1977) 19 Cal.3rd 727, 734, fn. 6.)
See also 18 U.S.C. § 5033, for a similar federal requirement.
Section 5033 requires that federal law enforcement agents also notify the parents of a juvenile's rights, and that it be done "immediately" after the child is taken into custody.
A one-hour delay in notifying the parents of the juvenile's Miranda rights was not unreasonable given the fact that it was done as soon as it was discovered that the arrested subject was a juvenile. (United States v. Wendy G. (9th Cir. 2001) 255 F.3rd 761.)
Also, when a minor taken before a probation officer pursuant to W&I § 626 (Alternative Dispositions for Minors in Temporary Custody When Juvenile Court Proceedings are not Required), and it is alleged that the minor is a person described in W&I §§ 601 (Status Offender) or 602 (Delinquent), the probation officer "shall" immediately advise the minor and his parent or guardian of rights equivalent to those provided in the Miranda decision. (W&I § 627.5)
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