SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

passage of time during the ensuing standoff does not dissipate that
exigency to where officers are expected to seek the authorization of a
judge to take the suspect into physical custody. (Fisher v. City of
San Jose (9 th Cir. 2009) 558 F.3 rd 1069; overruling its own prior
holding (at 509 F.3 rd 952) where it was held that failure to obtain an
arrest warrant during a 12 hour standoff resulted in an illegal arrest of
the barricaded suspect.)
Service and Return:
Felony arrest warrants may be executed anytime, anywhere, day
or night. (P.C. §§ 836(a), 840)
But see Steagald v. United States (1981) 451 U.S. 204 [68
L.Ed.2 nd 38], below, mandating a search warrant to execute
an arrest warrant in a third party’s home.
Misdemeanor arrest warrants may be served anytime, anywhere,
day or night, except that when the suspect is not in public but not
already in custody (e.g., in his residence), the warrant may not be
served between 10:00 p.m. and 6:00 a.m. unless the warrant is
“endorsed” for “night service” in which case it may be served at
any time. (P.C. § 840(4))
“Night Service” must be justified in the warrant affidavit,
describing the need to make the arrest in other than the
daytime. (See People v. Kimble (1988) 44 Cal.3 rd 480,
494; discussing the need for justifying nighttime service for
a search warrant.)
Query: If an officer is already lawfully in the
house, may a misdemeanor arrest warrant be
executed despite the lack of a nighttime
endorsement? Unknown. P.C. § 840 itself does
not provide for any such exception. But since this
limitation on arrests has been held to be statutory
only, and not of constitutional origins (People v.
Whitted (1976) 60 Cal.App.3 rd 569.), no evidence
would be suppressed anyway, making this question
moot.
Necessity of Having a Copy of The Arrest Warrant: The law
contemplates that when an arrest is made, the officer should have a
copy of the warrant in his possession. (People v. Thomas (1957)
156 Cal.App.2 nd 117, 120.) However, it has been held that there is
© 2012 Robert C. Phillips. All rights reserved
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