A question that comes up quite often when I meet with clients is "Do police need a warrant to arrest me?" The answer, like so many things in the law, is that it depends.
California Penal Code Section 836(a)(2)(3) provides the following:
A peace officer may make an arrest for a felony, with or without a warrant, at any time, day or night, at any location, whether or not the felony has occurred in the officer's presence, so long as such arrest is supported by "probable cause."
An arrest cannot take place in someone's residence, unless there is an arrest warrant. This, however, does not apply if an exigency (emergency) is present. For example, someone runs into a house while being chased by an officer. The idea is that if an exigency is present, a warrant is not required because of officer safety, potential destruction of evidence, or safety of someone in the residence.
California Penal Code Section 836 (a)(1) addresses misdemeanor arrests. Generally, an officer cannot make an arrest for a misdemeanor unless it was committed in the officer's presence. If there is a citizen's arrest, it must have occurred in the private citizen's presence.
There are, however, some exceptions to the presence requirement. For example an officer can still effectuate an arrest assuming there is probable cause under the following circumstances:
- Juvenile Arrests (W&I Code § 625(a))
- Driving While Under the Influence Arrests (V.C. § 40300.5)
- Battery on School Grounds (P.C. § 243.5)
- Carrying a Loaded Firearm P.C. § 12031(a)(1) (P.C. § 12031(a)(5)(A)
- Domestic Violence Assaults or Batteries CCP § 527.6 Fam. Code, §§ 6200 et P.C. § 136.2 P.C. § 646.91 P.C. § 1203.097(a)(2)
This list is not exhaustive, but it does provide an example of how the presence requirement is not always applicable. The best way to find out if the police needed a warrant for your situation is to call an experienced criminal defense lawyer. If you were arrested or are under investigation, contact my office today, and speak with me personally about your case. I can provide indispensable information with respect to protecting rights.