Chapter 7: Post Arrest Procedure

[1] QUOTE FROM: Pen. Code§ 7.21.
USSC: County of Riverside v.
McLaughlin (1991) 500 US 44, 58 [booking consists of "the
administrative steps incident to arrest"].

[2] QUOTE FROM: P v.
Superior Court (Logue) (1973) 35 CA3 1, 6.

[3] CAL: Pen. Code§ 853.6(g).
OTHER: 4 Witkin, California Criminal Law (Third
edition 2000), p. 258 ["there is little statutory or case law
coverage of the police practices of… booking arrested
persons"].

[4] OTHER: 3 LaFave,
Search and Seizure (Fourth Edition) at p. 46 ["law
enforcement agencies view booking as primarily a process for their
own internal administration"].

[5] OTHER: Doe v.
Sheriff of DuPage County (7C 1997) 128 F3 586, 588.

[6] CAL: Pen. Code§ 851.5. Re
minors: See Welf. & Inst. Code§ 627. NOTE:
No suppression: Evidence may not be suppressed on grounds
it was the fruit of a violation of such a statute. See
P v. Lessie (2010) 47 C4 1152, 1170.

[7] CAL: Pen. Code§ 825(b) ["After
the arrest, any attorney at law entitled to practice in the courts
of record of California, may, at the request of the prisoner or
any relative of the prisoner, visit the prisoner."].

[8] USSC: Virginia v.
Moore (2008) 553 US 164; Atwater v.
Lago Vista (2001) 532 US 318; 354. CAL: P v.
McKay (2002) 27 C4 601, 607, 618 ["so long as the officer
has probable cause to believe that an individual has committed a
criminal offense, a custodial arrest—even one effected in
violation of state arrest procedures—does not violate the Fourth
Amendment"]. OTHER: US v. McFadden (2C
2001) 238 F3 198, 204.

[9] CAL: Pen. Code§§ 821, 849; Veh.
Code§§ 40301, 40500(a); P v. McKay (2002) 27 C4
601, 619 [if the [Vehicle Code] violation is declared to be
felony, the offender is to be dealt with in like manner as upon
arrest for the commission of any other felony"].

[10] CAL: Pen. Code§ 853.6(a)(1).
NOTE: Based on the voters' intent in passing Proposition 47
in 2014, it is reasonable to infer that arrestees should
ordinarily be released at the scene unless there was some
overriding reason to book them. For the same reason, they should
be released promptly after the booking procedure has been
completed, which would seem to mean they can neither be
interrogated nor held for a lineup (unless they consent to it),
and they must not be housed in the general population of the
facility.

[11] CAL: Pen. Code§ 853.6(a)(1).

[12] CAL: P v. McKay (2002) 27
C4 601, 618.

[13]
DISPOSITION OF MISDEMEANOR ARRESTEES: A person arrested for
a misdemeanor may be taken into custody for any of the reasons
below. See Pen. Code§§ 827.1, 849(b), 853.5; 853.6; Veh. Code
§§ 40302, 40303(b).

• Warrant that specified no cite and release.

• Arrest warrant or failure to appear that is pending at the
time of the current offense shall constitute reason to believe
that the person would not appear as specified in the notice.

• It was reasonably likely that the offense would continue.

• It was reasonably likely that the safety of persons or
property would be immediately endangered if the arrestee was cited
and released.

• The arrest was for domestic violence, a violation of a
protective court order involving domestic violence, a crime of
violence, a crime involving a firearm, resisting arrest, or
furnishing false information to a peace officer.

• Arrest for any of the following Vehicle Code§§: 2800,
10852, 10853, 14601, 14601.1, 14601.2, 20002, 20003, 21200.5,
21461.5, 23103, 23104, 23109, 23152, 23332, 40303.

• Arrest for Penal. Code§§ 827.1, 853.6(i).

• Arrestee without satisfactory ID.

• Arrestee constituted a danger to himself or others due to
alcohol or drugs.

• Arrestee required a medical exam or care, or was otherwise
unable to care for his safety.

• Arrestee was charged with another crime for which he was
ineligible for release.

• Arrestee had outstanding warrants.

• Arrestee refused to sign a promise to appear.

• Officer decided to book the arrestee before citing and
releasing him.

•The person has one or more failures to appear in court on
previous misdemeanor citations that have not been resolved.

•The person had been cited, arrested, or convicted for
misdemeanor or felony theft from a store or from a vehicle in the
previous six months.

•There is probable cause to believe that the person is guilty
of committing organized retail theft, in violation of new P.C.
490.4.

[14]
DISPOSITION OF INFRACTION ARRESTEES (Pen. Code§ 853.5)
Cite and release except as follows:

• Arrestee was arrested for a violation of the Vehicle Code
and demanded an immediate appearance before a judge.

• Arrestee refused to sign a promise to appear.

• Arrestee unable to provide satisfactory ID or refused to
provide a thumbprint or fingerprint on the promise to appear.

• Arrestee refused to sign a promise to appear. Veh.
Code§ 40302(b).

• Arrestee who was unable to provide satisfactory
identification refused to provide a thumbprint of fingerprint on
the promise to appear. Pen. Code§ 853.5; Veh. Code§
40302(b).
P v. McKay (2002) 27 C4 601, 620. NOTE: All
violations of the Vehicle Code are infractions unless they are
specifically designated as misdemeanors or felonies. Veh.
Code§ 40000.1.

[15]
DISPOSITION OF MINORS ARRESTED FOR CURFEW VIOLATION:
Officers may do the following per Welf. & Inst. Code§§
601, 625, 626; In re Ian C. (2001) 87 CA4 856, 859;
In re Justin B. (1999) 69 CA4 879.
First offense: If the minor has no prior curfew violations
and if the municipality has adopted a resolution implementing
Welf. & Inst.§ 625.5, officers may not take the minor
into custody; instead, they must issue a warning citation.
In re Justin B. (1999) 69 CA4 879, 889.
BUT ALSO SEE: In re Charles C. (1999) 76 CA4 420,
426-27 [court disagrees with Justin B.]. If the minor has
prior curfew violations or if the municipality has not adopted a
resolution implementing Welf. & Inst.§ 625.5 officers
may:

Release: Release the minor to a responsible adult.

Transport to PD: Officers may take the minor to the police
station to await arrival of a responsible adult.

Search: If the minor is transported to the station,
officers may conduct a search of the minor incident to the
"arrest." In re Ian C. (2001) 87 CA4 856, 859-60
[taking a minor into protective custody is equivalent to an
arrest].

No interrogation: Officers who have transported a minor to
the police station to await arrival of a responsible adult, may
not interrogate the minor as to other crimes. In re
Justin B. (1999) 69 CA4 879, 888-89.

Transport to shelter: Transport the minor to an agency
having responsibility for providing shelter, counseling, or
diversion services to minors.

Transport to probation officer: Transport the minor to a
probation officer.

[16] OUTRIGHT RELEASE: Officers may
release an arrestee from custody without obtaining a promise to
appear if they determined there were insufficient grounds for a
complaint, or the arrest was for plain drunk and no further
proceedings were desirable, or the arrestee will be taken to a
treatment facility if no further proceedings are desirable. Pen.
Code§ 849(b).

[17] USSC: Gerstein v.
Pugh (1975) 420 US 103, 113-14 ["a policeman's on-the-scene
assessment of probable cause provides legal justification for
arresting a person suspected of crime, and for a brief period of
detention to take the administrative steps incident to arrest.
Once the suspect is in custody, however, the reasons that justify
dispensing with the magistrate's neutral judgment evaporate."];
County of Riverside v.
McLaughlin (1991) 500 US 44, 47 ["prompt judicial
determination of probable cause [is] a prerequisite to an extended
pretrial detention following a warrantless arrest."].

[18] USSC: Gerstein v.
Pugh (1975) 420 US 103, 116, fn.18.. CAL: Pen. Code
§ 945. 9th CIR: US v.
Bueno-Vargas (9C 2004) 383 F3 1104, 1107 ["When an arrest
has been made subject to a warrant, a judicial determination of
probable cause has already been made as a prerequisite to
obtaining the arrest warrant."]; US v.
Van Poyck (9C 1996) 77 F3 285, 289, fn.6 ["the concerns
that animated the McLaughlin decision—the special harm of
detaining a person without a prior determination of whether
detention is supported by probable cause—are not implicated in
this case because Van Poyck was arrested pursuant to a warrant"].

[19] CAL: P v.
Rutterschmidt (2009) 176 CA4 1047, 1080 ["The
Gerstein/McLaughlin line of cases responds to
constitutional concerns present in warrantless arrests."];
In re Walters (1975) 15 C3 738, 743, fn.1 ["an arrestee who
is released on bail is not thereafter entitled to a probable cause
hearing"]; P v. Gordon (1978) 84 CA3 913, 922-23.

[20] CAL: P v.
Rutterschmidt (2009) 176 CA4 1047, 1080 ["defendants had
been arrested on federal charges pursuant to a federal warrant
[and therefore there was "no need for additional evidence to
justify those arrests"].

[21] OTHER: US v. Pabon (2C
2017) 871 F3 164, 181 ["a determination of probable cause to
search is not the same as a determination that there is, at the
same time, probable cause to arrest, or vice versa"].

[22] CAL: In re Walters (1975)
15 C3 738, 753 ["If the judicial officer finds that probable cause
has not been established, the defendant must be discharged from
custody."].

[23] USSC: County of
Riverside v. McLaughlin (1991) 500 US
44, 56 ["a jurisdiction that provides judicial determinations of
probable cause with 48 hours of arrest will, as a general matter,
comply with the promptness requirement"]; Powell v.
Nevada (1994) 511 US 79, 80 ["[Riverside]
established that 'prompt' generally means within 48 hours of the
warrantless arrest; absent extraordinary circumstances, a longer
delay violates the Fourth Amendment"].

[24] USSC: County of Riverside
v. McLaughlin (1991) 500 US 44, 56 [a probable cause
determination within 48 hours "may nonetheless violate
Gerstein if the arrested individual can prove that his or
her probable cause determination was delayed unreasonably."].
9th CIR: Hallstrom v. Garden City (9C
1993) 991 F2 1473, 1479 ["A person taken before a judicial officer
within the 48-hour period may still challenge the arresting
officials for unreasonable delay, but she bears the burden of
proving that her probable cause determination was delayed
unreasonably."]. NOTE: The Court in County of Riverside
v. McLaughlin (1991) 500 US 44, 56 gave the
following examples of inadequate justifications for a delay: delay
to try to develop probable cause, "a delay motivated by ill will
against the arrested individual, or delay for delay's sake."

[25] USSC: County of Riverside
v. McLaughlin (1991) 500 US 44, 56 ["we believe that
a jurisdiction that provides judicial determinations of probable
cause within 48 hours of arrest will, as a general matter, comply
with the promptness requirement of Gerstein [and thus] such
jurisdictions will be immune from systemic challenges"].
CAL: Alfredo A. v.
Superior Court (1994) 6 C4 1212, 1215.

[26] USSC: County of Riverside
v. McLaughlin (1991) 500 US 44, 56-58.
9th CIR: Anderson v. Calderon (9C
2000) 232 F3 1053, 1070 ["The McLaughlin Court made clear
that intervening weekends or holidays would not qualify as
extraordinary circumstances, so the State cannot argue that the
delay was reasonable on ground that May 26 was Memorial Day."].

[27] USSC: County of Riverside
v. McLaughlin (1991) 500 US 44, 57 ["Where an
arrested individual does not receive a probable cause
determination within 48 hours, the burden shifts to the government
to demonstrate the existence of a bona fide emergency or other
extraordinary circumstance"]. 9th CIR: Anderson
v. Calderon (9C 2000) 232 F3 1053, 1070 ["Under
McLaughlin's 48-Hour Rule, the delay was presumptively
unreasonable."].

[28] CAL: P v.
Rutterschmidt (2009) 176 CA4 1047, 1081 ["The Federal Rules
of Criminal Procedure are only applicable to the federal courts
and do not apply to state court proceedings."]; Rule of Crim. Pro.
§ 3501(c).

[29] CAL: P v. Deleon (2015) 241
CA4 1059, 1070 [probable cause hearing 14 days after arrest was
sufficient].

[30] CAL: Alfredo A. v.
Superior Court (1994) 6 C4 1212, 1216, 1230-31.

[31] USSC: Gerstein v.
Pugh (1975) 420 US 103, 120 ["probable cause to arrest
traditionally has been decided by a magistrate in a nonadversary
proceeding on hearsay and written testimony, and the Court has
approved these informal modes of proof"]. CAL:
Alfredo A. v. Superior Court (1994) 6 C4
1212, 1224; In re Walters (1975) 15 C3 738, 750-53.

[32] USSC: Gerstein v.
Pugh (1975) 420 US 103, 120-23 ["the probable cause
determination is not a 'critical stage' in the prosecution that
would require appointed counsel"].

[33] 9th CIR: US v.
Bueno-Vargas (9C 2004) 383 F3 1104, 1109-10.

[34] USSC: New York v.
Harris (1990) 495 US 14, 18 ["Nothing in the reasoning of
[Payton v. New York] suggests that an arrest
in a home without a warrant but with probable cause somehow
renders unlawful continued custody of the suspect once he is
removed from the house."]. NOTE: The Supreme Court has
indicated that even if a judge ordered the release of a suspect
because of a post-arrest time limit violation, the suspect could
be immediately rearrested if probable cause continued to exist.
New York v. Harris (1990) 495 US 14, 18 ["Nor
is there any claim that the warrantless arrest required the police
to release Harris or that Harris could not be immediately
rearrested if momentarily released. Because the officers had
probable cause to arrest Harris for a crime, Harris was not
unlawfully in custody"].

[35] USSC: Gerstein v.
Pugh (1975) 420 US 103, 123 ["a conviction will not be
vacated on the ground that the defendant was detained pending
trial without a determination of probable cause"]. CAL:
P v. Valenzuela (1978) 86 CA3 427, 431 ["An
automatic grant of immunity of the suspected offender would be
nothing but a reprisal against the public at large for the
officer's neglect."].

[36] USSC: Powell v.
Nevada (1994) 511 US 79, 90 (conc. opn. of Thomas,
J.) ["The timing of the probable-cause determination would have
affected petitioner's statement only if a proper hearing at or
before the 48-hour mark would have resulted in a finding of no
probable cause."]. ALSO SEE: Lawhorn
v. Allen (11C 2008) 519 F3 1272, 1290-92 [no
suppression based on "fruit of the poisonous tree" analysis].

[37] CAL: P v.
Jenkins (2004) 122 CA4 1160, 1176-77 ["Although the
California courts have not considered the issue, other states have
uniformly agreed that the exclusionary rule applies to a
McLaughlin violation. [Citations] We agree. The
exclusionary rule has been applied consistently in cases involving
a warrantless arrest made without probable cause. The
circumstances of a McLaughlin violation are the functional
equivalent of such an arrest in that the arresting officer acts
without necessary judicial guidance or objective good faith."].
BUT ALSO SEE: US v. Fullerton (6C
1999) 187 F3 587, 590 ["There is much confusion over the
appropriate remedy for a McLaughlin violation."];
US v. Sholola (7C 1997) 124 F3 803, 821 ["The
appellant has not cited (nor are we aware of) any federal circuit
court opinions that lend credence to his position that suppression
is the proper remedy in Riverside cases."];
Anderson v. Calderon (9C 2000) 232 F3 1053,
1071 ["it is well settled that a McLaughlin violation
arises from the Fourth Amendment. Although suppression of evidence
has been a preferred remedy for a Fourth Amendment violation, it
is not the automatic remedy for any such violation."].
NOTE: The issue of whether suppression of evidence is an
appropriate remedy was raised in 1994 before the US Supreme Court,
but the court decided to let the issue remain unresolved.
Powell v. Nevada (1994) 511 US 79.

[38] USSC: Rothgery v.
Gillespie County, Texas (2008) 554 US 191, 199 ["This first
time before a court, also known as the 'preliminary arraignment or
'arraignment on the complaint,' is generally the hearing at which
the magistrate informs the defendant of the charge in the
complaint, and of various rights in further proceedings, and
determines the conditions for pretrial release"]. CAL: Pen.
Code§§ 1268 et seq., 976-90; C Const. Art. 1,§
14; P v. Powell (1967) 67 C2 32, 60 ["The principal
purposes of the requirement of prompt arraignment are to prevent
secret police interrogation, to place the issue of probable cause
for the arrest before a judicial officer, to provide the defendant
with full advice as to his rights and an opportunity to have
counsel appointed, and to enable him to apply for bail or for
habeas corpus when necessary."].

[39] CAL: Pen. Code§§ 849(a), 825;
P v. Thompson (1980) 27 C3 303, 329 ["The right to a
prompt arraignment is a fundamental right of the arrested
person."]; O'Neal v. Superior Court (1986) 185 CA3
1086, 1090 ["the Department of Corrections placed a detainer on
petitioner on April 9, 1985 [and] once that hold was in place,
petitioner was no longer detained prior to arraignment and section
825 [arraignment time restrictions] ceased to operate"]. Note that
the parole hold was apparently based on the same charge for which
he was arrested]; P v. Hughes (2002) 27 C4 287, 326
["the arraignment requirement of Pen. Code§ 825 has been
interpreted as not applying when [as here] a parole hold on other
matters has been placed upon the defendant," Citing Ng
v. Superior Court (1992) 4 C4 29, 38].

[40] CAL: Pen. Code§§ 825, 849(a).
NOTE: Although Pen. Code§ 825 is contained within the
Penal Code chapter entitled "The Warrant of Arrest," it is
generally assumed that its 48-hour time limit also applies to
warrantless arrests. P v. Turner (1994) 8 C4 137,
173, fn.6. In any event,§ 849(a), which applies to
warrantless arrests, requires an arraignment "without unnecessary
delay." Because the Supreme Court in Riverside and
the legislature in Pen. Code§§ 849(a) generally consider
48-hours to be a reasonable limit for probable cause
determinations and arraignments on warrant arrests, it is likely
that the standard would be different for warrantless arrests. It
is, however, possible that more time may be allowed for
warrantless arrests because when an arrest is made on a warrant
"the authorities will normally have already investigated and
evaluated the case" P v. Bonillas (1989) 48 C3 757,
787, fn.11. ALSO SEE: C Const. Art. 1,§ 14
[person charged with a felony must be arraigned "without
unnecessary delay." NOTE: A willful delay in taking an
arrestee before a judge for arraignment is a misdemeanor. Pen.
Code§ 145.

[41] CAL: Pen. Code§ 825(a)(1);
P v. Turner (1994) 8 C4 137, 175; P v.
Gordon (1978) 84 CA3 913, 922.

[42] CAL: Pen. Code§ 825(a)(2).

[43] CAL: Pen. Code§ 825(a)(2);
P v. Gordon (1978) 84 CA3 913, 922.

[44] CAL: Pen. Code§ 825(a)(2).

[45] NOTE: Although Pen. Code§ 825
does not specifically exempt out-of-custody suspects from the
requirement of a prompt arraignment, it impliedly does so by
stating that the suspect must "be taken" before the judge, an act
that can be undertaken only if the suspect is in custody.
ALSO SEE: Pen. Code§ 849(a) [suspect arrested without
warrant must be taken before a judge "if not otherwise released"];
Ng v. Superior Court (1992) 4 C4 29, 38
["Custody has been a paramount concern in cases discussing the
need for prompt arraignment."].

[46] QUOTE FROM: County of Riverside
v. McLaughlin (1991) 500 US 44, 55. USSC:
County of Riverside v.
McLaughlin (1991) 500 US 44, 56-57 ["Courts cannot ignore
the often unavoidable delays in transporting arrested persons from
one facility to another, handling late-night bookings where no
magistrate is readily available, obtaining the presence of an
arresting officer who may be busy processing other suspects or
securing the premises of an arrest, and other practical
realities."]. CAL: P v. Williams (1977) 68
CA3 36, 43 [delay "for the district attorney to evaluate the
evidence for the limited purpose of determining what charge, if
any, is to be filed; and to complete the necessary clerical and
administrative tasks to prepare a formal pleading"]; P v.
Thompson (1980) 27 C3 303, 329; Youngblood
v. Gates (1988) 200 CA3 1302, 1320 [some delay to
evaluate a case is permitted]; P v. Turner (1994) 8
C4 137, 176 [the officer] "used the time from Monday to Wednesday
not to further investigate defendant, but rather to coordinate the
necessary reports and transcripts for submission to the district
attorney's office and complete the filing of the complaint."].
9th CIR: Kanekoa v. Honolulu (9C 1989)
879 F2 607, 611; Hallstrom v. Garden City (9C
1993) 991 F2 1473, 1481 [not reasonable to delay a probable cause
determination for four days even though delay was caused by the
defendant's refusal to answer questions that were necessary to
complete the booking process; although a short delay to "allow
tempers to cool, and the opportunity for calm reconsideration"
might be justifiable].

[47] QUOTE FROM: County of Riverside
v. McLaughlin (1991) 500 US 44, 55.

[48] CAL: P v.
Turner (1994) 8 C4 137, 175 ["the charge of murder is
generally considered to be the most serious of all criminal
charges, and it should not be publicized lightly or casually.
Here, the case involved potential charges of double murder,
robbery, and the concomitant special circumstances. In view of the
complexity of the charging decisions involved, including the
discernment of each suspect's level of culpability, the delay was
not unreasonable."]; P v. King (1969) 270 CA2 817,
822 ["When several persons are jointly suspected of involvement in
the same crime, a reasonable delay in arraignment in order to
evaluate the case against each of them would appear to qualify as
necessary delay within the meaning of the Penal Code."];
P v. Bonillas (1989) 48 C3 757 [delay for
psychiatric evaluation of a murder suspect was reasonable because
the suspect's mental state "was obviously material" in determining
what charges should be filed].

[49] QUOTE FROM: County of Riverside
v. McLaughlin (1991) 500 US 44, 56.

[50] CAL: In re Walker (1974) 10
C3 764, 778 ["it would be an unreasonable application of [the
arraignment statute] to require that a hospitalized defendant be
taken before a magistrate until it was possible to do so without
jeopardy to his health"]; P v. Taylor (1967) 250 CA2
367, 371; P v. Williams (1977) 68 CA3 36, 43.

[51] CAL: Ng v.
Superior Court (1992) 4 C4 29, 36 ["assuming the charges in
other counties play no role in the defendant's custody status,
prompt arraignment in the first county that actively prosecutes
the charges, followed by arraignment in other counties upon
commencement of actual prosecution of the charges in those
counties, is sufficient. Prosecution in the first county may
proceed to its conclusion without interference by the need to
transport the defendant to other counties in which he is charged
by complaint."].

[52] USSC: Gerstein v.
Pugh (1975) 420 US 103, 123 ["It may be found desirable to
make the probable cause determination at the suspect's first
appearance before a judicial officer."]; County of Riverside
v. McLaughlin (1991) 500 US 44, 55 ["Because
Gerstein permits jurisdictions to incorporate probable
cause determinations into other pretrial procedures, some delays
are inevitable."]. CAL: P v. Lewis (2008) 43
C4 415, 444 ["In McLaughlin, the high court held that a
jurisdiction may choose to combine the probable cause
determination with other pretrial procedures such as arraignment.
A jurisdiction that does so generally will comply with the
promptness requirement of Gerstein if it provides the
probable cause determination within 48 hours of a warrantless
arrest. If the delay exceeds 48 hours, the government must show
that a bona fide emergency or other extraordinary circumstance
justified the delay. Neither the need to consolidate pretrial
proceedings nor intervening weekends constitutes extraordinary
circumstances justifying delay of a probable cause hearing beyond
48 hours."].

[53] USSC: County of Riverside
v. McLaughlin (1991) 500 US 44, 54 [because a delay
for a "few hours" would not violate Gerstein if justified
by judicial efficiency, it would seem that a reasonable delay to
obtain reliable evidence to help prove or disprove guilt in a
serious case would be even more justified]. CAL:
P v. Turner (1994) 8 C4 137, 175-76; P v.
Bonillas (1989) 48 C3 757, 788 [even if arraignment was
delayed so that a murder suspect could be examined by a
psychiatrist, "such an examination is within the permitted purpose
of evaluating the evidence for the purpose of determining what
charges should be filed. Defendant's mental state was obviously
material to that purpose"]. OTHER: US v.
Daniels (7C 1995) 64 F3 311, 314 ["Daniels' argument seems
to interpret Riverside to preclude law enforcement
from bolstering its case against a defendant while he awaits his
Gerstein hearing; that is a ludicrous position.
Gerstein and its progeny simply prohibit law enforcement
from detaining a defendant to gather evidence to justify his
arrest, which is a wholly different matter."]; US
v. Sholola (7C 1997) 124 F3 803, 820. NOTE:
If the suspect is willing to speak with officers, a delay
attributable to the interview ought to be deemed reasonable
because the law views police interrogation as a highly worthwhile
activity that serves the public interest. P v.
Morris (1991) 53 C3 152, 200 ["Defendant cites no
controlling authority that would justify suppressing a voluntarily
given statement merely because defendant was arraigned a few hours
after his companions and on the same day as his arrest. We decline
to create any such authority."]; Kanekoa v.
Honolulu (9C 1989) 879 F2 607, 611 [court rules the
interviews with the suspects "may have constituted administrative
steps which justified detention"]. NOTE: In
Youngblood v. Gates (1988) 200 CA3 1302, 1320
the court stated that all delays for the purpose of interrogation
are unnecessary, citing P v. Powell (1967) 67 C2 32.
But nothing in Powell supports such a sweeping
per se rule. On the contrary, Powell was based on
the unique and unreasonable circumstances surrounding the
interrogations. The Youngblood court also took issue with a
ruling in P v. Haney (1967) 249 CA2 810, 815 which
the Youngblood court, at p. 1320, interpreted as granting
officers automatic permission to delay an arraignment for the
purpose of interrogating the suspect. Again, the
Youngblood court mischaracterized the ruling; i.e.,
Haney, at p. 815, was based on specific facts that
justified the delay. ALSO SEE: Dunaway v.
New York (1979) 442 US 200 [Court repeatedly states that
that questioning a suspect at a police station is proper if there
is probable cause to arrest]; McNeil v.
Wisconsin (1991) 501 US 171, 181; Moran v.
Burbine (1986) 475 US 412, 426.

[54] USSC: Riverside
v. McLaughlin (1991) 500 US 44, 55-56. CAL:
P v. Thompson (1980) 27 C3 303, 329.

[55] CAL: P v.
Valenzuela (1978) 86 CA3 427, 430 ["Neither [Penal Code]
sections 825 nor 849 contain any language authorizing or requiring
a dismissal of a prosecution by reason of delay in arraignment."].

[56] USSC: New York v.
Harris (1990) 495 US 14, 18 ["Nothing in the reasoning of
[Payton v. New York] suggests that an arrest
in a home without a warrant but with probable cause somehow
renders unlawful continued custody of the suspect once he is
removed from the house."]. CAL: P v.
Watkins (1994) 26 CA4 19, 29 ["Where there is probable
cause to arrest, the fact that police illegally enter a home to
make a warrantless arrest neither invalidates the arrest itself
nor requires suppression of any postarrest statements the
defendant makes at the police station."]; Pen. Code§ 836(a).
NOTE: The Supreme Court has indicated that even if a judge
ordered the release of a suspect because of a post-arrest time
limit violation, the suspect could be immediately rearrested if
probable cause continued to exist. New York v.
Harris (1990) 495 US 14, 18 ["Nor is there any claim that
the warrantless arrest required the police to release Harris or
that Harris could not be immediately rearrested if momentarily
released.

[57] CAL: P v. Turner (1994) 8
C4 137, 176 ["To justify exclusion of a statement, defendant must
show that the delay produced his admissions or that there was an
essential connection between the illegal detention and admissions
of guilt."]; P v. Morris (1991) 53 C3 152, 200;
P v. Thompson (1980) 27 C3 303, 329-30;
P v. Williams (1977) 68 CA3 36, 45; P v. Sapp (2003)
31 C4 240, 270 [delay in arraignment may result in suppression of
confession "only upon a defendant's showing that the confession
was the product of any illegal delay"]. 9th CIR:
Anderson v. Calderon (9C 2000) 232 F3 1053, 1071 ["the
appropriate remedy for a McLaughlin violation is the
exclusion of the evidence in question—if it was fruit of the
poisonous tree"].

[58] CAL: Pen. Code§ 849(a).

[59] CAL: Pen. Code§ 821 ["If the
warrant on which the defendant is arrested in another county does
not have bail set thereon… the arresting officer shall
immediately notify the law enforcement agency requesting the
arrest in the county in which the warrant was issued that such
defendant is in custody, and thereafter such law enforcement
agency shall take custody of the defendant within five days, or
five court days if the law enforcement agency requesting the
arrest is more than 400 miles from the county in which the
defendant is held in custody"]; P v. Combes (1961)
56 C2 135, 143. ALSO SEE: County of Riverside
v. McLaughlin (1991) 500 US 44, 56-57 ["Courts
cannot ignore the often unavoidable delays in transporting
arrested persons from one facility to another, handling late-night
bookings where no magistrate is readily available, obtaining the
presence of an arresting officer who may be busy processing other
suspects or securing the premises of an arrest, and other
practical realities."].

[60] CAL: Ng v.
Superior Court (1992) 4 C4 29, 36 ["assuming the charges in
other counties play no role in the defendant's custody status,
prompt arraignment in the first county that actively prosecutes
the charges, followed by arraignment in other counties upon
commencement of actual prosecution of the charges in those
counties, is sufficient. Prosecution in the first county may
proceed to its conclusion without interference by the need to
transport the defendant to other counties in which he is charged
by complaint."].

[61] CAL: Pen. Code§ 849(a).

[62] CAL: Pen. Code§ 821.
NOTE: Although Pen. Code§ 821 states that the sole
purpose of the hearing is to determine whether the suspect should
be admitted to bail in the amount specified in the bail
endorsement, Pen. Code§ 1270 specifically authorizes the
out-of-county judge to release the suspect on his own
recognizance.

[63] CAL: Pen. Code§ 821.

[64] SAMPLE NOTICE:

NOTICE TO ARRESTEE

Out-of-County Arrest Warrant with Bail Set

(Pen. Code§ 821)

You have been arrested in Alameda County on a warrant issued by a
judge in Santa Clara County. The judge set bail at $50,000. You
have a right to be promptly taken before a judge in Alameda County
for the purpose of posting bail or asking for a bail reduction.

You may waive this right, in which case you will be transported
back to Santa Clara County where you will be arraigned before a
judge. You may seek a bail reduction from the arraignment judge.

Acknowledgment of notice

I hereby acknowledge that I have been advised of the rights
described above and that I have been given a copy of this notice.

(signed)___________________________________

Waiver: I hereby waive the right to a bail hearing in Alameda
County.

(signed) ___________________________________

[65] CAL: Pen. Code§ 821.

[66] CAL: Pen. Code§ 821.

[67] CAL: Pen. Code§ 1270.1.

[68] CAL: Pen. Code§ 1270.1(b).

[69] OTHER: Caldarola v.
County of Westchester (2C 2003) 343 F3 570, 572 "The 'perp
walk,' that is, when an accused wrongdoer is led away in handcuffs
by the police to the courthouse, police station, or jail, has been
featured in newspapers and newscasts for decades. The normally
camera-shy arrestees often pull coats over their heads, place
their hands in front of their faces, or otherwise attempt to
obscure their identities. A recent surge in 'executive perp-walks'
has featured accused white collar criminals in designer suits and
handcuffs."]; Lauro v. Charles (2C 2000) 219
F3 202, 203 ["The 'perp walk'—as it is popularly known—is a
wide-spread police practice in New York City in which the
suspected perpetrator of a crime, after being arrested, is
'walked' in front of the press so that he can be photographed or
filmed."].

[70] USSC: Wilson v.
Layne (1999) 526 US 603. OTHER: Lauro
v. Charles (2C 2000) 219 F3 212 ["the Fourth
Amendment shields arrestees from police conduct that unreasonably
aggravates the intrusion on privacy properly occasioned by the
initial seizure"]; Caldarola v.
County of Westchester (2C 2003) 343 F3 570, 575 ["whether
conceptualized as a seizure of Freeman's image or an exacerbation
of his arrest, the County's act of videotaping Freeman constituted
a seizure under the Fourth Amendment"].

[71] OTHER: Lauro v.
Charles (2C 2000) 219 F3 202, 212 [perp walk permitted if
it was "sufficiently closely related to a legitimate governmental
objective"]; Caldarola v.
County of Westchester (2C 2003) 343 F3 570, 576 ["the
County possessed a legitimate law enforcement justification for
transporting Freeman from DOC grounds to the police station"].

[72] OTHER: Caldarola v.
County of Westchester (2C 2003) 343 F3 570 [perp walk
"communicates government efforts to thwart the criminal element,
and it may deter others from attempting similar crimes" (at p.
573); "allowing the public to view images of an arrestee informs
and enables members of the public who may come forward with
additional information relevant to the law enforcement
investigation" (at p. 576)]; Lauro v.
Charles (2C 2000) 219 F3 202, 203 ["The perp walk both
publicizes the police's crime-fighting efforts and provides the
press with a dramatic illustration to accompany stories about the
arrest."].

[73] CAL: P v.
Superior Court (Logue) (1973) 35 CA3 1, 6 ["Booking, being
merely a ministerial function, is no part of the arrest process,
and delay in or an absence of booking will not affect an otherwise
legal arrest."].

[74] CAL: Pen. Code§§ 1523, 1536.
ALSO SEE: P v. Superior Court (Laff) (2001)
25 C4 703, 713 ["the superior court possesses the inherent power
to conduct proceedings and issue orders regarding property seized
from a criminal suspect pursuant to a warrant issued by the
court"].