SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

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.
Although taking a citizen’s arrestee when not supported by
probable cause, as it was widely believed P.C. § 142 as
previously written required, will 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;
Hamburg v. Wal-Mart Stores (2004) 116 Cal.App.4 th 497,
503-504.), the Ninth Circuit Court of Appeal is of the
opinion that the officer in such a situation is 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), eliminating the
requirement that an officer accept a prisoner arrested by a
private citizen, avoids the dilemma of incurring federal
civil liability while attempting to follow the dictates of a
state statute.
But the rule remains that for an officer to allow a citizen to
make a citizen’s arrest and then to take the suspect into
custody when there is insufficient probable cause to justify
the arrest, will subject the officer to potential federal civil
liability. (Hopkins v. Bonvicino (9 th Cir. 2009) 573 F.3 rd
752, 774-776.)
The federal civil liability exists despite the fact that the
officers are exempt from state civil liability in a citizen’s
arrest situation. (Ibid.; and see P.C. § 847.)
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)
© 2012 Robert C. Phillips. All rights reserved
“In the Presence” requirement: Misdemeanors (and infractions)
must have occurred in the private person’s (in the case of a private
person’s arrest) presence. (P.C. §§ 836(a)(1), 837.1; Jackson v.
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