3.3: Laws of Arrest

What Is an Arrest

In California, an arrest is defined in section 834 of the penal code. An arrest occurs when a person is taken into custody in a manner authorized by law. An arrest can be made by a sworn law enforcement officer or by a private citizen. Of course, law enforcement officers make most arrests.

Probable cause is the legal standard of proof which gives a law enforcement officer the authority to initiate an arrest. More specifically, to support an arrest, the officer has to articulate it is more likely than not, the person taken into custody is the same individual who committed the crime in question. Think of probable cause in terms of mathematics. More likely than not is fifty percent plus one (not fifty-one percent). In other words, it barely tips the scales.¹⁶

A valid arrest warrant must be issued by a neutral judge or magistrate, who has determined there is probable cause for an arrest, based upon sworn testimony or an affidavit in support of the petition for a warrant. The arrest warrant must specifically identify the person to be arrested. If a law enforcement affiant provides false information or shows reckless disregard for the truth when providing an affidavit or testimony in support of an arrest warrant, that may constitute grounds to invalidate the warrant.

These minimum requirements stem from the language contained in the Fourth Amendment. Federal statutes and most jurisdictions require the issuance of an arrest warrant for the arrest of individuals for most misdemeanors that were not committed within the view of a police officer. However, as long as police have the necessary probable cause, a warrant is usually not needed to arrest someone suspected of a felony in a public place; these laws vary from state to state. In a non-emergency situation, an arrest of an individual in their home requires a warrant.¹⁷

Figure \(\PageIndex{1}\): A person in handcuffs.^vi

How an Arrest is Made

According to section 835 of the California Penal Code, “An arrest is made by an actual restraint of the person, or by submission to the custody of an officer. The person arrested may be subjected to such restraint as is reasonable for his arrest and detention.”

Authority to Arrest

The California Penal Code section 836 empowers law enforcement officials the ability to make an arrest provided it fits one of the following conditions:

1. The officer personally observes an individual commit a crime.
2. The officer establishes probable cause to arrest.
3. The officer has a valid arrest warrant.

The California Penal Code section 837 empowers a private person the ability to make an arrest provided it fits one of the following conditions:

1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not in his presence.
3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.¹⁸

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¹⁶George Cartwright (2024)

¹⁷Wikipedia

¹⁸California Penal Code (2024)