Citizens Arrest - Pro and Con

[CSDGuy]

If I recall correctly, isn't there some specific language in the penal code specifically addressing storeowners and their employees and their rights to apprehend shoplifters? I may be wrong but I thought there was something specific to that situation....

What you're thinking about is the "Merchant Privilege Rule". It is under this "rule" that a private person can detain another private person without effecting an arrest. Security Guards should be VERY aware of this rule. Also, companies that employ security guards and/or their own loss prevention people will generally indemnify those employees. The employees won't be paying their own legal fees unless the company determines that the actions of the employee were clearly outside the scope of their employment.

PC 490.5
(f) (1) A merchant may detain a person for a reasonable time for
the purpose of conducting an investigation in a reasonable manner
whenever the merchant has probable cause to believe the person to be
detained is attempting to unlawfully take or has unlawfully taken
merchandise from the merchant's premises.

(2) In making the detention a merchant, theater owner, or a person
employed by a library facility may use a reasonable amount of
nondeadly force necessary to protect himself or herself and to
prevent escape of the person detained or the loss of tangible or
intangible property.

(4) A merchant, theater owner, a person employed by a library
facility, or an agent thereof, having probable cause to believe the
person detained was attempting to unlawfully take or has taken any
item from the premises, or was attempting to operate a video
recording device within the premises of a motion picture theater
without the authority of the owner of the theater, may request the
person detained to voluntarily surrender the item or recording.
Should the person detained refuse to surrender the recording or item
of which there is probable cause to believe has been recorded on or
unlawfully taken from the premises, or attempted to be recorded or
unlawfully taken from the premises, a limited and reasonable search
may be conducted by those authorized to make the detention in order
to recover the item. Only packages, shopping bags, handbags or other
property in the immediate possession of the person detained, but not
including any clothing worn by the person, may be searched pursuant
to this subdivision. Upon surrender or discovery of the item, the
person detained may also be requested, but may not be required, to
provide adequate proof of his or her true identity.

[11Z50]

As a private investigator/private patrol operator, I have made a number of CA's and never had an issue. In some cases, such as embezzlement or employee theft, the client wants an arrest made at the business. I get quite a bit of work like this since LE is too busy to investigate most property crimes these days. Normally, I make the arrest, call LE and they accept the suspect and book him. In most cases, I make advanced coordination with LE, and they are usually happy to accept the arrest, since they get stats for the arrest. It really helps that I am prior LE and make sure the arrest is totally legal. I also provide a report and whatever evidence is relevant. I also coordinate with LE and the DA and assist in the prosecution. Every CA I have done is a slam dunk and the suspect cops a plea.

When making the arrest, one may certainly use that force necessary. When the cops arrive they may have some questions so make sure you know the elements of the crime you are making the arrest for. Also, be sure you know PC837 inside and out. LE is required to accept a lawful CA, although they may cite and release on a misdemeanor.

I do, however have a hefty liability insurance policy that covers me, those who work for me, and my business. I would have to agree that making a CA can be a risky proposition, especially for an untrained lay person. But, I believe that if a crime has in fact been committed, a citizen has every right to make the CA. Sure, you might get sued, but you can get sued for just about anything, to include doing nothing.

If there is a situation where a crime is happening over a period of time and the cops can't/won't do anything about it, call a PI! You'd be surprised what can be done.

[winnre]

So if you detain, and search, and they have nothing on them, it is not false arrest but what, unlawful detainment? Kidnaping?

[SVT-40]

No crime at all read the post above listing 490.5 PC

[CSDGuy]

So if you detain, and search, and they have nothing on them, it is not false arrest but what, unlawful detainment? Kidnaping?

No crime at all read the post above listing 490.5 PC

If it's done under the Merchant's Privilege Rule, per 490.5 above, no crime. I would imagine, however, that said detention can not be for an unreasonable amount of time. If detained after the search turns out negative... that's when things become, uhmm, interesting.

[The Director]

I would not attempt to arrest anyone without at least taking the PC832 course (module I and II). I took those two courses, and I feel pretty confident about what constitutes a "good arrest" and what doesn't.

Also remember one important note:

Private citizens are not responsible for upholding the constitutional rights of others! Your constitutional rights protect you from the government. I am not the government!

civil liability aside.....a private citizen does not need a search warrant to search a person, vehicle, or home. He does not need to read a suspect miranda rights..

Dirty secret:a private citizen has far more power to arrest than a LEO.

Say there's a meth lab in my apartment building. I smell it. I kick down the door, there is meth everywhere. I arrest and physically cuff the occupants, and call the police. Good arrest? Absolutely. All day long.

All the evidence I found is admissible. Any statement the suspects made (even though miranda was not read), admissible.

A cop would have to obtain a search warrant, etc, etc etc.

Downside?

If I bust down the door and it turn out the guy is repairing copiers and that's what the smell was, I am absolutely in a world of hurt, and potentially civilly and criminally liable! False arrest is also a crime!

Personally? If a person commits a felony in my presence or a grievous misdemeanor (again, in my presence), I would most likely arrest them. I have cuffs in my car from the course! And use the force necessary to effect the arrest just as a cop would.

It helps if you know something about the reasonable use of force, arrest, and control techniques as well.

[winnre]

But entering the guy's house is not trespassing even if he is breaking the law? Does this give me the right to speed in order to catch up to another speeder and get his license number to report it? I bet cops have heard that one every day.

And if a cop says he cannot enter a house without a warrant then can I bust open the door so he can see the evidence and THEN take action?

[code33]

While the constitution provides protection to the people from the govt. and its agents, private persons are still subject to the laws. So a private person that breaks laws while making a private persons arrest can be arrested laws violated.

[code33]

Clarification in bold...

a private citizen does not need a search warrant to search a person, vehicle, or home. He does not need to read a suspect miranda rights.. warning during questioning upon arrest

All the evidence I found is admissible. Any statement the suspects made (even though miranda was not read) while in custody and during questioning, admissible. Miranda warning only needs to be read if there is custody AND questioning by police.

Absent exigency,a cop would have to obtain a search warrant, etc, etc etc.

[The Director]

And if a cop says he cannot enter a house without a warrant then can I bust open the door so he can see the evidence and THEN take action?

No; if you are working in concert with the police you have just become a defacto agent of the government. If this was the case police would use private citizens as agents all the time to circumvent your constitutional rights.

[The Director]

Clarification in bold...

Good clarification;

Correct, Miranda needs to be read when custody and questioning are combined for a LEO. A private citizen may arrest and question without reading the miranda warning.

I think that's what you said, just clarifying it for everyone else.

Judge Warren; ain't he great!

[Ron-Solo]

Myth. They can arrest whenever there's PC whether it's a felony, misdemeanor or infraction. There's no presence requirement to having PC.

WRONG.

[SVT-40]

Good clarification;

Correct, Miranda needs to be read when custody and questioning are combined for a LEO. A private citizen may arrest and question without reading the miranda warning.

I think that's what you said, just clarifying it for everyone else.

Judge Warren; ain't he great!

Actually to be 100% correct Miranda is necessary when custody and INTERROGATION are combined.

Questions for booking and for issues not related to the suspects direct involvement in the crime at hand are perfectly legal without Miranda.

Also private parties cannot make arrests for infractions. Infractions are not "public offenses".

Calif Penal Code
837. A private person may arrest another:
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not
in his presence.
3. When a felony has been in fact committed, and he has reasonable
cause for believing the person arrested to have committed it.


The police may make felony arrests based upon suspicion, even if no felony has yet been committed.

In addition only the police may make arrests for warrants.

836. (a) A peace officer may arrest a person in obedience to a
warrant, or, pursuant to the authority granted to him or her by
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
without a warrant, may arrest a person whenever any of the following
circumstances occur:
(1) The officer has probable cause to believe that the person to
be arrested has committed a public offense in the officer's presence.
(2) The person arrested has committed a felony, although not in
the officer's presence.
(3) The officer has probable cause to believe that the person to
be arrested has committed a felony, whether or not a felony, in fact,
has been committed.

[The Director]

Actually to be 100% correct Miranda is necessary when custody and INTERROGATION are combined.

Questions for booking and for issues not related to the suspects direct involvement in the crime at hand are perfectly legal without Miranda.

Yep. Right you are.

[9mmepiphany]

Myth. They can arrest whenever there's PC whether it's a felony, misdemeanor or infraction. There's no presence requirement to having PC.

where did this myth come from and why won't it die?