As a very general rule, but with a lot of exceptions, a peace officer may not effect a warrantless
arrest on a person who is believed to have committed a misdemeanor if the crime was not
committed in the officer’s presence. This is often referred to as the “In the Presence [of a
peace officer]” Rule. This rule derives from Penal Code section 836(a)(1), which states a person
may be arrested for a misdemeanor offense without a warrant for arrest if “[t]he officer has
probable cause to believe that the person to be arrested has committed a public offense in the
officer’s presence.” The In the Presence Rule does not apply to felony offenses (Penal Code
§836(a)(2) and for that reason, also does not apply to “wobbler” offenses since those crimes
may be charged as a misdemeanor or a felony.
Does this mean that you can commit a misdemeanor that is observed by an officer but if you
manage to elude arrest, you are no longer subject to the In the Presence Rule? No. Some
people, even the occasional attorney, believe that the misdemeanor becomes “stale.” This
stems from a 1907 case decision that has no basis in statute and is not applied in the real world
of California law enforcement or by the courts. If an officer observes you committing a
misdemeanor offense, you may be arrested for that offense at a later time. In the past, some
courts have followed what has been called the “Stale Misdemeanor Rule” but practically
speaking, unless the time between the offense and the arrest is of such a long period of time
(there is not clear time limit), this defense is not likely to prevail and will not provide any
grounds for suppression.
What if a person reports a misdemeanor crime to an officer that the officer did not observe? In
most cases, unless a citizen’s arrest (which could be an arrest by a security guard) captures and
holds the offender, the officer cannot arrest the offender. (Penal Code §837. Note the
misdemeanor must be committed in the citizen’s presence.)
While the In the Presence Rule is grounded in statute, there are so many exceptions that the
statute (Penal Code section 836(a)(1)) starts to resemble Swiss cheese. To begin, even if an
officer does not observe the misdemeanor offense, he or she may submit the evidence to the
prosecutor for review or for an arrest warrant to the court. Furthermore, since motions to
suppress are grounded in the Fourth Amendment, when an officer violates the In the Presence
Rule, the arrestee cannot move the court to suppress the arrest as it is not a violation of the
Fourth Amendment, only a violation of California law.
“In the presence” also does not mean the officer has to see the offender committing the crime.
The only requirement is that the officer have probable cause to believe the offense was
committed while in the officer’s presence. The best example of this might be the smell of
marijuana smoke coming from the vicinity or person of someone on a public walkway in
violation of Health and Safety Code Section 11362.1(1) (unlawful to smoke cannabis in public).
An officer must be able to articulate to the court how he or she formed the probable cause to
believe a misdemeanor was being committed and the officer may rely on circumstantial
evidence, reasonable inferences, and the officer’s own senses.
And there are quite a few exceptions to the “In the Presence” Rule:
1) Driving a motor vehicle under the influence of drugs or alcohol.
2) Assault on school grounds.
3) Carrying a concealed weapon at an airport.
4) Violation of domestic or civil restraining/protective orders.
5) Domestic violence.
6) Assault on a firefighter, EMT, or other first responder in the course of their duties.
7) Any misdemeanor committed by a juvenile.
Bottom line: an arrest for a misdemeanor committed outside the presence of an officer has
limited defenses. Nonetheless, the rule provides reasonable protection to individuals who may
have committed a minor crime in that it protects the individual from state abuse. Without this
protection, police could go about arresting people for allegedly committing trivial crimes that
do not merit the full force of the law.
Orange County criminal defense attorney William Weinberg has many years of experience
defending those accused of both misdemeanors and felonies. You may contact him for a free
review and consult regarding your criminal matter by calling his Irvine office at 949-474-8008 or
by emailing him at bill@williamweinberg.com.