SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Note on the warrant that he has so informed
defendant; and
Upon being requested by the defendant, take
him before a magistrate in that county.
© 2012 Robert C. Phillips. All rights reserved
That magistrate is to admit the defendant to
the bail specified on the warrant, if any.
(P.C. §§ 821, 822) If the offense is a
misdemeanor, and no bail is specified on the
warrant, the magistrate may set the bail.
(P.C. § 822)
If the defendant does not bail out for any
reason, law enforcement officers from the
county where the warrant was issued have
five (5) days (or five (5) court days if the
offense is a felony and the law enforcement
agency is more than 400 miles from the
county where the defendant is being held) to
take custody of the defendant. (P.C. §§ 821,
822) (See 62 Op.Cal.Atty.Gen. 78, 2-16-79)
Note: There are no similar statutory
requirements for an out-of-county arrest
made without an arrest warrant (i.e., a
“probable cause” arrest).
Note: Arrests without a Warrant; P.C. § 849(a): An
officer (or private person) making an arrest without
a warrant shall, without unnecessary delay, take the
prisoner not otherwise released before the nearest or
most accessible magistrate in the county in which
the offense is triable, and a complaint stating the
charge against the arrested person shall be laid
before such magistrate.
Necessity of Having Probable Cause: Until recently, it has been
held that before a police officer may enter a home, absent consent
to enter, the officer must have “probable cause” to believe the
person who is the subject of the arrest warrant is actually inside at
the time. (See People v. Jacobs (1987) 43 Cal.3 rd 472; United
States v. Gorman (9 th Cir. 2002) 314 F.3 rd 1105; United States v.
Diaz (9 th Cir. 2007) 491 F.3 rd 1074; United States v. Phillips (9 th
Cir. 1974) 497 F.2 nd 1131; (United States v. Gooch (9 th Cir. 2007)
506 F.3 rd 1156, 1159, fn. 2; Cuevas v. De Roco (9 th Cir. 2008) 531
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