The police are often described as the ‘gatekeepers’ of the criminal justice system. They are the first contact that people have with the system, and they highly visible in enforcing criminal laws and policies. They also have a lot of power over their fellow citizens – they are armed, and they are allowed to arrest people and enter their homes. However, it is important to know that the law places clear boundaries on the police and their powers.
In this section of our site, we will explain what powers the police have and when they are allowed to use them. We also outline what you can do if the police have overstepped the line in your case – in many cases of unlawful police behavior, a solid defense is available that can result in a reduction, or even a full dismissal, of criminal charges.
The police are allowed to detain you if you consent.
If someone is suspected of knowing about or being involved in criminal activity, the police may want to speak to them. This is often referred to as being ‘detained for questioning’. But across the United States, there is a right to silence for all criminal defendants. And even if someone is not, or not yet, a suspect in a criminal investigation, there is no obligation to speak to the police or to accompany them anywhere.
To put it very basically – the police cannot force you to speak to them. The only information that any person is required to give the police, if asked, is their name and address, and to show some identification. However, if someone agrees to speak to the police, or go with the police for questioning, that is perfectly legal. But we suggest that anyone exercise caution in making that decision – if it is at all possible that you may be, or later become, a suspect, it is imperative that you get legal advice before speaking to the police.
The police are allowed to detain you if they have a reasonable suspicion based on facts
The law also allows the police to detain someone without their consent, but only in very specific circumstances. To determine whether detention without consent is lawful, the police officer must:
Further, it must be the case that a reasonable police officer with knowledge of the same facts would have the same suspicion.[1]
So the law requires that the officer have specific knowledge, and their own suspicion, but it also requires that the suspicion be reasonable. Let’s consider an example – a police officer wants to detain a young man for questioning in relation to a robbery of a convenience store. The suspect in the robbery is described as being 6’1”, black, and wearing a red hoodie and black pants at the time of the incident. The young man that the officer wants to detain is someone that he sees in the street, in a different neighborhood, two days later, fitting that description.
Are there specific facts that give rise to a suspicion? Perhaps there are, given the description of the robber. Is that suspicion reasonable? Most likely not – the description is only a very general one, the young man that the officer sees is in a different neighborhood, and it’s been two days since the robbery. However, what if the young man fitting this description was seen in the same neighborhood as the robbery, only about 15 minutes after the officer heard the suspect’s description announced over the police radio? In those circumstances, the officer’s suspicion would be a lot more ‘reasonable’ and he may be entitled to detain the young man for questioning.
The police are allowed to arrest you if they have a warrant
This is a clear-cut power – if the police have been granted an arrest warrant, then they are authorized to arrest the person named in the warrant. An arrest warrant also allows the police to enter that person’s home to arrest them.
The police are allowed to arrest you if they have probable cause
Even if they do not have a warrant, the police are still allowed to arrest people in certain circumstances. The first of those is when the police have ‘probable cause’. You have probably heard that phrase a lot, but what does it actually mean? The California Criminal Jury Instructions state that probable cause exists when:
“the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime.”[2]
So, just like in the test for lawful detention, we can see that the police officer needs to base his or her decision on facts. And again, their decision has to have an element of reasonableness to it – in this case, they have to exercise ‘reasonable caution’.
It is NOT enough that an officer:
When it comes to arresting people without a warrant, there is a distinction made between misdemeanors and infractions on one hand, and felonies on the other. The general rule is that in the case of less serious offenses – that is, misdemeanors and infractions – the offense must have occurred in the officer’s presence to arrest the person without a warrant. For felonies, however, the offense does not have to occur in the officer’s presence. There are also a few specific misdemeanor offenses that fit into the same rule as felonies, such as violating a domestic violence restraining order.
The police are allowed to enter your home to make an arrest only under exigent circumstances, or with a warrant.
The law restricts the ability of the police to enter private homes. Even if the police have probable cause to make an arrest, that does not entitle them to enter a suspect’s home without permission in order to make that arrest – there is a further requirement that exigent circumstances exist.
‘Exigent circumstances’ means “an emergency situation that requires swift action to prevent (1) imminent danger to life or serious damage to property, or (2) the imminent escape of a suspect or destruction of evidence.”[3] Unless either of those scenarios exists, the police must get a warrant before they enter the suspect’s home.
The police have to give specific information upon arrest
If the police are going to arrest you, they have to tell you:
Once you are arrested, you are considered to be in police custody. While in police custody, officers must Mirandize you before any questioning occurs. The Miranda warning requires that police advise you of your right to an attorney and your right to remain silent when questioned by the police. It also warns you that anything you say can be used against you to support their case.
The police are allowed to use reasonable force
The law recognizes that the police are entitled to use force while doing their job, but that force must be reasonable.
Police are allowed to use reasonable force:
To determine what force is reasonable, regard must be had to all of the circumstances. In some cases, simply pulling someone’s hands behind their back is considered the reasonable amount of force required to make an arrest. In other cases, police will be entitled to use much more physical violence or even their weapons. Relevant factors include whether a suspect was armed, if the suspect was affected by drugs or alcohol, how many police officers there were, and in what kind of location the incident took place.
Unfortunately, it is not uncommon for police to use excessive or unreasonable force. One recent and very public example of an overwhelmingly excessive and unreasonable use of force by the police in the Bay Area was during the Occupy Oakland protests in 2011. In fact, the police misconduct was so gross in that case that the US District Court awarded several protestors who were injured in the incident a total of $1 million in compensation. (Article on compensation awarded to Occupy Oakland protestors).
As a defendant, though, the most important thing to keep in mind about these kinds of incidents is that they trigger a right to self-defense and, in some cases, make an arrest unlawful. We will discuss the way in which excessive and unreasonable use of force by the police is used in defending criminal charges further, below.
The Fourth Amendment of the United States Constitution is the fundamental law that protects everyone from unreasonable search and seizure. It states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The police are allowed to search with a warrant
The first rule of search and seizure by the police is that they are allowed to search a person, their home, their car, their place of work, or any other specified location, if they have a valid search warrant. If they find what they are looking for, they are allowed to take – ‘seize’ – it as evidence.
The police are allowed to search without a warrant only in particular instances
If the police do not have a warrant, the law tightly controls when and where they are allowed to perform searches. The main exceptions to requiring a warrant to search are:
If the police are acting unlawfully towards you, the law says that you are allowed to act in self-defense. There are two situations in which a claim to self-defense usually arises:
These two situations can also overlap. For example, it is common for a defendant to argue that an officer was using excessive force to make an unlawful arrest.
A defense along these lines directly calls into question the behavior of the police, and alleges that it did not meet the lawful and proper standards that are required of all officers. The basic law of self-defense, or defense of another, remains the same -once the defendant raises the issue, the Prosecutor must prove beyond reasonable doubt that they were not acting in self-defense. As set out in the Judicial Council of California Criminal Jury Instructions, the law provides that a defendant acted in lawful self-defense if:
In deciding whether the defendant’s belief that they were in ‘imminent danger’ was reasonable, the court will look at all of the circumstances. In many cases that involve unlawful police action, the experience is tense, highly emotional, or even scary. Many people find the police threatening, especially those who have previously had bad experiences with, or whose communities are targeted by, the police. Other relevant circumstances include:
If a case like this goes to trial, you need an expert attorney who will make sure that the judge or jury is aware of all of the relevant factors so as they can assess whether you responded reasonably or not.
In the end, once the defense has been raised, the prosecution has the burden of proving beyond reasonable doubt that the defendant did not act in lawful self-defense. Otherwise, the defendant must be found not guilty of the offense.
There are several criminal offenses that place the police in the position of the victim, such as battery of a police officer and resisting arrest. In those kinds of offenses, one of the elements that the Prosecutor must prove is that the officer was engaged in the ‘lawful performance’ of his or her duties.
There are two ways in which you can defend a criminal charge where ‘lawful performance’ is an element:
These approaches often overlap, or are argued side-by-side in the same case. One of the main reasons for that is because, unfortunately, the use of excessive or unreasonable force by the police in carrying out their duties is not uncommon. In one study by the San Jose Mercury News, it was found that there was use of force by police in 70% of cases where someone was charged with resisting arrest. Let us look at the two approaches in more detail.
Firstly, when an officer is not lawfully performing his or her duties – most often, because the officer is acting beyond their powers. When an officer steps over the line by making an unlawful arrest, or using excessive force, then they are not performing their duties. Similarly, if a police officer is engaged in some kind of illegal activity themselves, they are not performing their duties.
Consider the example of a young man whom a police officer wants to detain for questioning. The young man fits the general description of someone who robbed a convenience store two days earlier. The officer approaches that young man, and says he wants to ask him some questions about the robbery. The man refuses to speak to the officer, so the officer places him under arrest. The young man struggles with the officer, and is subsequently charged with resisting arrest. The young man’s lawyer, however, could argue that the officer was not engaged in the ‘lawful performance’ of his duties at the time he resisted the arrest – this is because, on the information available, the officer did not have probable cause to arrest the young man, and a police officer cannot arrest someone simply because they refuse to answer questions.
In the case of a charge of resisting arrest under Penal Code 148(a)(1), a defendant cannot be found guilty if the arrest is unlawful. In the case of battery of a police officer under Penal Code 243(b) and (c)(2), however, a defendant is not necessarily completely exonerated because of an officer’s unlawful behavior. However, the defendant cannot be found guilty of battery of a police officer, but only of a less serious offense that does not include the element of the victim being an officer. As the California Court of Appeals noted in People v. White (1980)[5], “That portion of section 243 of the Penal Code which raises battery, a misdemeanour, to felony status where the victim is a peace officer engaged in the performance of his duties, does not come into play where the officer makes an illegal arrest, simply because ‘[a]n officer is under no duty to make an unlawful arrest.”
The second instance where a defendant may not be guilty of an offense due to unlawful police action is when they defend themselves against excessive or unreasonable force. As discussed above, the law clearly states that you are allowed to defend yourself if the police are being unreasonably violent or heavy-handed in their treatment of you – even if they are otherwise carrying out some kind of lawful duty. This relates back to the rules around use of force – the police are allowed to use force, but only what is reasonable in the circumstances.
This was explained clearly in the case of People v. Soto (1969)[6], where the Court stated, “it is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest… Therefore, a person who uses reasonable force to protect himself or others against the use of unreasonable excessive force in making an arrest is not guilty of any crime.”
The California Criminal Jury Instructions outline what the use of ‘reasonable force’ by the defendant in the context of an arrest is as follows:
“A person being arrested uses reasonable force when he or she:
(1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer’s use of unreasonable or excessive force; and
(2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection.”[7]
So, if it is shown that you were using reasonable force to protect yourself against the unreasonable or excessive force of a police officer, you must be found not guilty. And, it is important to note that self-defense is a complete defense to both a charge of resisting arrest, and a charge of battery of a police officer.
The improper exercise of search and seizure powers by the police also has consequences in a criminal case. California Penal Code 1538.5 embodies what is known as the ‘exclusionary rule’. It states that a defendant can move the court to suppress evidence “obtained as a result of a search or seizure on either of the following grounds:
(A) The search or seizure without a warrant was unreasonable.
(B) The search or seizure with a warrant was unreasonable”.
As we have outlined above, the law provides strict guidelines on when police can conduct a search and seize any evidence they find. So as to deter police misconduct, the law provides that the police will not be able to use that evidence against you at your trial if the search and seizure was illegal. Examples of circumstances that could trigger the exclusionary rule include:
These kinds of arguments to suppress evidence can be quite challenging because the law is complex, and courts are often reluctant to suppress evidence that could prove that someone committed a crime. However, Summit Defense Attorneys are experts when it comes to challenging the conduct of the police – we believe that it is of the utmost importance that the police be held to a high standard, and do their job properly and within the bounds of the law. The police have a huge amount of power, and no one should be convicted of a criminal offense based on evidence that is obtained as a result of police misconduct.
We provide more detail on the law and procedure that applies to having evidence suppressed in criminal cases in this section of our site.
In particularly serious cases of police misconduct, compensation may be available to victims. As we noted when discussing use of force, above, a recent example of this in the Bay Area was the award of $1 million compensation to protestors who were injured by violent and excessive police actions in the Occupy Oakland protests. Summit Defense Attorneys are specialist and dedicated criminal defense attorneys, so we do not represent plaintiffs in civil actions. However, we recognize a person’s right to take civil action against the police, and will preserve any evidence that emerges in a criminal case that may be of assistance in future actions.
[1] Judicial Council of California Criminal Jury Instructions, Instruction 2670.
[2] Judicial Council of California Criminal Jury Instructions, Instruction 2670.
[3] Judicial Council of California Criminal Jury Instructions, Instruction 2670.
[4] Judicial Council of California Criminal Jury Instructions, Instruction 3470.
[5] People v. White (1980) 101 Cal.App.3d 161
[6] People v. Soto (1969) 276 Cal.App.2d 81
[7] Judicial Council of California Criminal Jury Instructions, Instruction 2670.
