Chapter 12: Citizens Arrest
Requirements
Felonies: The only requirement is probable cause.[1]
Misdemeanors and infractions: There are two requirements:
(1) Probable cause: There must be probable cause to arrest.[2]
(2) "In the presence": There must be probable cause to believe the crime was committed in the citizen's presence.[3] Also see Chapter 5 Arrests ("In the Presence" Requirement).
Arrest Procedure
Citizen makes arrest: If the citizen places the suspect under arrest, officers must "receive" the suspect, meaning they must take custody of him.[4] But also see "Options after taking custody," "Duty to investigate," and "'Stale' misdemeanors," below.
Citizen delegates authority to arrest: Officers may take custody of the suspect if, although the citizen did not expressly arrest him, they reasonably believed he had delegated to them his authority to do so. A delegation will ordinarily be implied if both of the following circumstances existed:
(1) Summoned officers: The citizen (or someone at his direction) summoned officers.
(2) Attempted to locate or identify the suspect: The citizen took steps to keep the suspect on the scene, follow him, identify him, or learn his whereabouts—any of which could be interpreted by officers as a delegation to them of the citizen's authority to arrest.[5]
Arrest formalities
Notification by citizen: Although there are no "magic words,"[6] the citizen should inform the suspect of the following:
"You're under arrest": Notify the suspect that he is under citizens arrest.[7]
Specify crime: If the suspect wants to know the offense for which he is being arrested, the citizen must inform him.[8] Wrong crime? See Chapter 3 Probable Cause to Arrest (Generally, Arrest for wrong crime).
Basis for arrest: If there was a significant time lapse between the commission of the crime and the arrest, the citizen should briefly explain the facts justifying the arrest.[9]
Notification may be made by officer: If the citizen is unable or unwilling to confront the suspect by informing him of the above, he may delegate this duty to officers so long as the citizen understands that, under the law, he is the person making the arrest.[10]
Officers not liable: The officers' act of taking custody of the suspect does not constitute an arrest by the officers. It is merely a transfer of custody following an arrest by the citizen. Consequently, the officers cannot be liable for false arrest.[11]
"Stale" misdemeanors: If the crime was a misdemeanor, officers may be required to defer making an arrest and seek a warrant if there was a substantial delay between its commission and the arrest. See Chapter 5 Arrests (Arrest Procedure, "Stale" misdemeanors).
Duty to investigate: Although there is little law on the subject, it appears that officers should at least question the citizen about the facts upon which probable cause was based in order to ensure that there was a factual basis for the arrest.[12]
Options after taking custody: After taking custody, officers have the following options:
Book into jail: See Chapter 7 Post-Arrest Procedure (Disposition of Arrestees).
Cite-release: If the crime was a misdemeanor, release the suspect after he signs a promise to appear.[13]
Outright release: Officers may release the suspect without issuing a notice to appear if there are "insufficient grounds for making a criminal complaint" against him.[14]
Citizen's use of force: A citizen may use reasonable force to effect an arrest.[15]
Time of arrest: Unrestricted.[16]
Searching the suspect
Search by citizen: The citizen may seize weapons and evidence in plain view.[17]
No search for evidence: The citizen may not search for evidence.[18]
Exception: Merchant privilege: A merchant who arrests a suspect for theft, may ask him to surrender the stolen property. If he refuses, the merchant may conduct a limited search for the stolen property inside containers, but not inside clothing.[19]
No search incident to arrest: A citizen may not conduct a search incident to the arrest.[20]
No suppression: If a citizen conducts an illegal search, evidence discovered as a result will not be suppressed unless the citizen was a "police agent." See Chapter 27 Searches by Civilians and Police Agents.
Search by officer: Officers who take custody of the suspect from the citizen may, depending on the circumstances, conduct the following types of searches:
Pat search: See Chapter 24 Pat Searches.
Search incident to arrest: See Chapter 28 Searches Incident to Arrest.
Retail merchandise search: Regardless of whether the suspect will be transported, an officer who accepts custody of a person arrested by a merchant having probable cause to believe the suspect stole retail merchandise may search the suspect and his immediate possessions for the merchandise.[21]
Notes
[1] CAL: Pen. Code§§ 837.2, 837.3.
[2] NOTE: Infractions: Pen. Code
§ 837.1 authorizes a citizen's arrest for a "public offense
committed or attempted in [the citizen's] presence." Emphasis
added. Both misdemeanors and infractions are "public offenses."
Pen. Code§§ 16, 17; 80 Ops.Atty.Gen. 111; P v.
Wilkins (1972) 27 CA3 763, 768; P v.
Garcia (1969) 274 CA2 100; P v.
Sjosten (1968) 262 CA2 539,543; P v.
Campbell (1972) 27 CA3 849, 854. NOTE: Although Pen.
Code§ 837.1 could be interpreted to mean that probable cause
is not enough—that the circumstances must demonstrate the offense
was in fact committed—such an interpretation has been
rejected by the courts. See Padilla v.
Meese (1986) 184 CA3 1022, 1031 [citizens arrest upheld
when citizen "reasonably concluded [that he] was in violation of
Vehicle Code § 23152"]; Gomez v.
Garcia (1980) 112 CA3 392, 397 ["While the statute [Pen.
Code§ 837] does not speak of 'probable cause to believe' an
offense has been committed in the presence of the person making
the arrest, the state of mind of such person of necessity comes
into play in a hindsight analysis of whether the arrest was or was
not lawful."]; Green v. DMV (1977) 68 CA3
536, 540 ["a warrantless arrest for an offense other than a felony
must be based on reasonable cause to believe that the
arrestee has committed the offense in the officer's presence,"
emphasis added].
[3] CAL: Pen. Code§ 837.1.
[4] CAL: Pen. Code§ 142 [officer
must "receive" the suspect]; Wang v.
Hartunian (2003) 111 CA4 744, 750 ["the police were in fact
obligated to take custody of Wang merely at the direction of
Hartunian, that is, when Hartunian informed the police that he had
arrested Wang"]; Kesmodel v. Rand (2004) 119
CA4 1128, 1137 ["Because the Rands effected the citizen arrest the
officers were obligated to accept custody of Kesmodel"].
NOTE: The purpose of this requirement is to "minimize the
potential for violence when a private person restrains another by
a citizen's arrest by requiring that a peace officer (who is
better equipped by training and experience) accept custody of the
person arrested from the person who made the arrest." 73
Ops.Atty.Gen 291, 295. ALSO SEE: Green v.
DMV (1977) 68 CA3 536, 541 ["Very wisely, [the citizen]
chose to enlist the aid of the police in effectuating the arrest
rather than risking his own safety."]; P v.
Sjosten (1968) 262 CA2 539, 544 ["Frequently, it is most
prudent for a private citizen to summon a police officer to assist
in making the arrest," edited.]. NOTE: In the past, it was
a felony for officers to refuse to take custody of a person who
had been arrested by a citizen. This statute was deleted from the
Penal Code in 2002. Pen. Code§ 142.
[5] CAL: Padilla v.
Meese (1986) 184 CA3 1022, 1030 ["the delegation of the
physical act of arrest need not be express, but may be implied
from the citizen's act of summoning an officer, reporting the
offense, and pointing out the suspect"]; Green v.
DMV (1977) 68 CA3 536, 542 ["the police were acting as
agents assisting in effectuating Baughn's citizen's arrest, "the
entire sequence of events beginning when Baugh decided to arrest
respondent and went to get help constitutes the arrest"];
P v. Johnson (1981) 123 CA3 495, 499 ["Weatherford's
actions in summoning police, following the suspect, pointing the
suspect's whereabouts to police, and thereafter effecting a
citizen's arrest, reasonably support the inference that it was his
intention that the prowler be arrested and that had he known at
the outset that it was necessary for him to effect the arrest, he
would have delegated that authority to the police, as the law
allows him to do."]; P v. Bloom (2010) 185
CA4 1496, 1502 ["a private person making a citizens arrest is
expressly authorized to delegate that responsibility to an
officer" [citing Pen. Code§ 839]; P v.
Sjosten (1968) 262 CA2 539, 544 ["the authority of Officer
Smith to make the arrest at the request of Mrs. Morales is well
established"]. 9th CIR: Meyers v.
Redwood City (9C 2005) 400 F3 765, 772 ["A private person
making a citizens arrest need not physically take the suspect into
custody, but may delegate that responsibility to an officer, and
the act of arrest may be implied from the citizen's act of
summoning an officer, reporting the offense, and pointing out the
suspect."]; Arpin v.
Santa Clara Valley Transportation Agency (9C 2001) 261 F3
912, 920 [a citizens arrest "may be implied from the citizen's act
of summoning an officer, reporting the offense, and pointing out
the suspect"].
[6] CAL: Padilla v.
Meese (1986) 184 CA3 1022, 1032 ["it is the substance and
not any 'magic words' which we must consider"]; Johanson
v. DMV (1995) 36 CA4 1209, 1217. NOTE: The
arrest may be effected without any words at all when, for example,
the citizen "took defendant by the arm and told him he was going
to call the police" (P v. Garcia (1969) 274 CA2 100,
105), or when the citizen "told the officers that he wanted
defendant arrested" (P v. Johnson (1969) 271 CA2 51,
52-53), or when a citizen who witnessed a misdemeanor hit-and-run
detained the driver, notified police, and told them what he had
seen. (P v. Harris (1967) 256 CA2 455, 459).
[7] CAL: Pen. Code§ 841.
ALSO SEE: P v. Harris (1967) 256 CA2
455, 459 [informing the suspect he is under arrest is not required
"where the accused is pursued immediately after the offense"];
P v. Garcia (1969) 274 CA2 100, 105 [citizens arrest
occurred when the citizen "took defendant by the arm and told him
he was going to call the police"].
[8] CAL: Pen. Code§ 841.
[9] CAL: Johanson v.
DMV (1995) 36 CA4 1209, 1218 ["When there is an appreciable
lapse in time such that the person arrested would not necessarily
be familiar with the circumstances justifying the arrest, Pen.
Code§ 841 requires a formal advisement."].
[10] CAL: Johanson v.
DMV (1995) 36 CA4 1209, 1217; P v.
Sjosten (1968) 262 CA2 539 ["The fact that [the citizen]
did not physically confront appellant is not significant. It is
sufficient that she directed the officer to make the arrest and
observed him doing so from her window."]; P v.
Bloom (2010) 185 CA4 1496, 1503 ["The authority to delegate
the physical act of taking the offender into custody has been
interested to mean the citizen is not required to engage in
immediate pursuit of a suspect to inform [him] he is under
arrest."].
[11] CAL: Pen. Code§ 847(b)(3) [no
civil liability for officers when they receive custody pursuant to
Pen. Code§ 142]; Kesmodel v. Rand (2004)
119 CA4 1128, 1137 ["A peace officer who accepts custody of a
person following a citizen arrest is not required to correctly
determine whether the arrest was justified, and cannot be held
liable for the arrest if it was improper."]; Hamburg
v. Wal-Mart Stores (2004) 116 CA4 497, 511-12
["peace officers who take custody of a person arrested by a
private person are not required to correctly adjudge whether the
citizen who made the arrest was justified in doing so"];
In re Roland K. (1978) 82 CA3 295, 298 [an arrest by
a citizen "continues even though he transfers custody of the
accused to a peace officer"]. 9th CIR: Meyers
v. Redwood City (9C 2005) 400 F3 765, 772 ["an
officer who makes an arrest [sic] pursuant to a citizen's
complaint is not subject to liability for false arrest or false
imprisonment"].
[12] CAL: P v.
Ramey (1976) 16 C3 263, 269 [although a crime victim may
qualify as a presumptively-reliable citizen informant, this does
not "dispense with the requirement that the informant furnish
underlying facts sufficiently detailed to cause a reasonable
person to believe a crime had been committed and the named suspect
was the perpetrator," edited]. 9th CIR: Fuller
v. M.G. Jewelry (9C 1991) 950 F2 1437, 1444 ["We
decline to adopt [the officer's] argument that merely because
citizen witnesses are presumptively reliable, the officers in this
situation had no duty to examine further the basis of the witness'
knowledge or talk with any other witnesses."]; Hopkins
v. Bonvicino (9C 2009) 573 F3 752, 765 [if officers
had questioned the citizen, they would have known that the alleged
hit-and-run vehicle caused no damage].
[13] CAL: 74 Ops.Atty.Gen. 37, 39.
[14] QUOTE FROM: Pen. Code§
849(b)(1). CAL: Wang v.
Hartunian (2003) 111 CA4 744, 750 ["a police officer is
never obligated to arrest someone merely at the direction of a
private citizen"]; Kinney v.
County of Contra Costa (1970) 8 CA3 761, 767 [California
law "permits a peace officer, when a person has been arrested by a
private citizen and delivered to him to release the arrested
person from custody if he, the peace officer, is satisfied that
there is no ground for making a criminal complaint against the
person arrested."].
[15] CAL: P v.
Fosselman (1983) 33 C3 572, 579 [the citizen "was entitled
to use reasonable force to detain [the suspect]"]; P v.
Garcia (1969) 274 CA2 100, 105 [when assaulted by the
suspect, the citizen "was justified in using such force as was
reasonable for defendant's arrest"]; Pen. Code§ 835 ["The
person arrested may be subjected to such restraint as is
reasonable for his arrest and detention."].
[16] CAL: Pen. Code§ 840(1).
[17] USSC: Payton v.
New York (1980) 445 US 573, 587; Horton v.
California (1990) 496 US 128, 136; Minnesota
v. Dickerson (1993) 508 US 366, 375. CAL:
Pen. Code§ 846; P v. Bush (1974) 37 CA3 952,
957.
[18] CAL: P v.
Martin (1964) 225 CA2 91, 95.
[19] CAL: Pen. Code§ 490.5(f)(4).
[20] CAL: P v.
Martin (1964) 225 CA2 91, 95.
[21] CAL: Pen. Code§ 490.5(f)(6).