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laws of arrest

ld 15

QuestionAnswer
reasonable suspicion is the standard used to justify a detention. it exists when an officer has suficient facts and information to make it reasonable to suspect that criminal activity may be occurring, and the person to be detained is connected to that activity.
probable cause to arrest exists when the totality of circumstances or "total aptomosphere" of the case would cause a person of ordinary care and prudence to entertain an honest and strong suspicion that the person to be arrested is guilty of a crime.
when does a search occur? when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government.
when does the siezure of a person occur? when a peace officer physically applies force to a person or when a person voluntarily submits to the officers authority.
when does the siezure of property occur? when there is some meaningfull interference with an individuals possessory interest in that property by the government.
The Sixth Amendment to the U.S. Constitution guarantees people accused of acrime the right to: • a speedy trial,• confront witnesses against them and obtain witnesses in their favor, and• the assistance of counsel, during court proceedings.
what does the fourteenth amendment mean to peace officers? The Fourteenth Amendment requires peace officers to apply the law equally toall people regardless of race, creed, nationality, religious preference, ornational origin.
Under color of law means? an action carried out as if under the authority oflaw, but is actually done in violation of the law (e.g., peace officers ormagistrates using their positions to act in an unlawful manner).
what does U.S. Code, Title 42, Section 1983 mean to peace officers? Peace officers are subject to this statute and can be held personally liable if,while acting under the color of law, they deprive or deny someone a legal rightto which the person was entitled.
U.S. Code, Title 18, Section 241 defined? a federal crime, punishable by a fine or imprisonment up to10 years, or both:• if two or more persons,• conspire to injure, oppress, threaten, or intimidate any person,• for doing anything that the person had a legal right to be doing,• or because the per
what does U.S. Code, Title 18, Section 241 mean to peace officers? Peace officers can be prosecuted criminally if they conspire with other personsto deprive individuals of their legal rights.
U.S. Code, Title 18, Section 242 defined? a federal crime, punishable by a fine or imprisonment up toone year, or both:• for any person, acting under color of any law,• to willfully deprive any person of any legal right,• or to subject any person to a different punishment or penalty,• based on th
what does U.S. Code, Title 18, Section 242 mean to peace officers? Peace officers can be prosecuted criminally if they apply a law unevenlybecause of a person’s color, race, or the fact that the person is an alien.
The Fourteenth Amendment requires that peace officers must: • apply the law equally to all people, and• treat them the same regardless of race, creed, nationality, religiouspreference, or national origin.
Appropriate actionsthat peace officers can take during a consensual encounter are: • gathering information (including identification and personal information),• interviewing witnesses at the scene of a crime or accident,• conversing casually, and• disseminating information.
A consensual encounter is a face-to-face contact between a private individualand a peace officer under circumstances that would cause a reasonable personto believe that they are free to leave and otherwise not cooperate.No legal justification is needed as long as officers are in a
Elevating a consensual encounter by improper behavior can have negativelegal and professional repercussions.The peace officer could: • violate the Fourth Amendment right against unreasonable searches andseizures, resulting in the suppression of evidence,• be civilly prosecuted and held liable for a violation of civil rights,• be criminally prosecuted for false imprisonment, or• face ag
Peace officers must be vigilant when contacting the public to ensure what? that theydo not elevate a consensual encounter into a detention.
A lawful detention requires what? reasonable suspicion of criminal activity.A temporary detention or stop is an assertion of authority by a peace officerthat would cause a reasonable person to believe they are not free to leave.Such a belief may result from physical restraint, unequivocal
A detention of a person is limited in what? scope, intensity, and duration. It is lessthan an arrest and more substantial than a consensual encounter.
is the following consentual encounter or detention?An officer approached a man, knownfor selling drugs, in an alley andasked if they could talk. The officerproceeded to obtain generalinformation from the man. Theofficer started filling out a fieldidentifi consentual encounter.
is the following a detention, or consentual encounter?Officers observed a man walkingthrough a shopping center at 1:20a.m. when all the stores were closed.They shined a spotlight on him, andone of the officers asked, "Iseverything okay?" consentual encounter.
is the following a detention, or a consentual encounter? An officer approached a man, knownfor selling drugs, in an alley andasked if they could talk. The officerproceeded to obtain generalinformation from the man, andstarted filling out a fieldidentifica Because the officer kept the license,the man was not free to leave. Theconsensual encounter was elevatedto a detention.
is the follwing a detention, or a consentual encounter? Officers observed a man walkingthrough a shopping center at 1:20a.m. when all the stores were closed.They shined a spotlight on him, gotout of their car, and one of theofficers said, "Come over here. This"command" would make the suspectbelieve he was not free to leave. Theinitial contact would now beclassified as a detention.
Reasonable suspicion defined? When a peace officer has enough facts andcircumstances present to make it reasonable to suspect that criminal activity isoccurring and the person detained is connected to that activity.Reasonable suspicion of criminal activity must exist to make a detenti
what is the basis for reasonable suspicion? Reasonable suspicion may be based on observation, personal training andexperience, or information from eyewitnesses, victims, or other officers(totality of the circumstances).Reasonable suspicion cannot be based on a hunch or instinct. If reasonablesuspic
name some factors that contribute to establishing reasonable suspicion • appearance or condition of a person (intoxicated, resemblance to wantedperson),• actions (hiding objects, furtive movements, running from a crime scene),• driving behaviors,• knowledge of the person’s “history” (criminal record or conduct),• demeanor (n
Common investigative actions include? • questioning the person about identity and conduct,• contacting other individuals (e.g. witnesses) to confirm explanations,verifying identification, or determining whether the person is wanted(warrant check),• checking premises, examining objects, or con
a detention must be? temporary and last no longer than is necessary to resolvethe reason for the stop. A detention legal at its beginning can become anillegal arrest if extended beyond what is reasonably necessary under thecircumstances.
Officers should nottransport a person during a detention unless? • the detainee gives permission,• it is impractical to bring the witness/victim to the detainee’s location,• the conditions of the detention are dangerous to the person, or• the conditions of the detention are dangerous to the officer(s).
Cursory/frisk searches are allowed to protect officers from an assault, but onlyif there are specific facts that cause the officers to feel endangered. The scopeof such a search is limited only to: • a frisk of the outer clothing,• locate possible weapons.Once the officers realize an object is not a weapon, the officers may notfurther manipulate the object; they must move on. Any additional feeling,grabbing, or manipulating of the item is outside th
The following factors may support reasonable suspicion to believe the personmay be carrying a weapon or pose a danger: • person’s clothing (e.g., a bulge in clothing, or wearing a heavy coat on a hotnight),• person’s actions (e.g., trying to hide something or being overly nervous),• prior knowledge of person for carrying weapons or of violent behavior,• isolated location
If a person attempts to leave during a detention, officers may use reasonableforce and/or physical restraints to compel the person to remain. The use offorce does not necessarily elevate the detention to an arrest. Uncooperativeindividuals may: • be handcuffed, and/or• be placed in a patrol vehicle.
what must exist to make a detention lawful? Reasonable suspicion of criminal activity
Probable cause for arrest is? is a set of facts that would cause a person of ordinarycare and prudence to entertain an honest and strong belief that the person to bearrested is guilty of a crime. Probable cause is required before an arrest and isbased on the totality of the circumstan
Facts required to establish probable cause may include, but are not limited to: • direct investigation or reports,• circumstantial evidence, or• secondhand statements from reliable sources.
An arrest is considered a what? full seizure of a person under the Fourth Amendmentbecause it significantly intrudes into a person’s liberty
the elements of a lawful arrest are what? An arrest may be made by a peace officer or private person. 834The arrested person must be taken into custody, in a case andin the manner authorized by law.834An arrest may be made by actual restraint of the person, orby the person’s submission to the off
Differencebetween anarrest and adetention? An arrest is the taking of a person into custody, in a case and in the mannerauthorized by law. Custody is the key word; it implies that the person makingthe arrest has full control.A detention or stop is an assertion of authority that would cause reasona
Penal Code Section 836 establishes the legal basis for an arrest by peaceofficers. Officers may make an arrest: • pursuant to a warrant, or• without a warrant:- whenever they have probable cause to believe that the person to bearrested has committed a public offense (felony or misdemeanor) intheir presence;- when the person arrested has committed a felony, although
In the officer’s presence is? liberally construed by the courts to include what isapparent to the officer’s senses, such as hearing, sight, and smell.Also, the officer can enhance his or her senses by using certain devices orobjects, such as binoculars, a flashlight, a dog, a telephon
California Penal Code Section 841 requires that any person making an arrestmust convey certain information to the individual arrested at the time of thearrest. The three things that must be explained are: • intent,• cause, and• authority.
There are two situations when the arresting person is not required to providethe individual with the intent, cause, and authority of the arrest. These arewhen the individual to be arrested is: • actually committing the offense, or• attempting to escape.
Peace officers may make a warrantless felony arrest whenever they haveprobable cause to believe the person to be arrested has: • committed a felony in the officer’s presence (Penal Code Section836(a)(1)), or• committed a felony, although not in the officer’s presence (Penal CodeSection 836(a)(2)), or• committed a felony, regardless of whether or not the felony was, in fact,commit
Peace officers may make a warrantless misdemeanor arrest when.... whenever they haveprobable cause to believe that the person to be arrested committed themisdemeanor in their presence. (Penal Code Section 836(a)(1))
Though a misdemeanor was not committed in the officer’s presence, the officermay make a warrantless arrest if there is probable cause that the misdemeanorwas: • committed by a juvenile (Welfare and Institutions Code Section 625), or• any of the following seven violations:- driving while under the influence (Vehicle Code Sections 40300.5 and40600),- carrying a loaded firearm on an individual’s person or in a veh
Warrantless arrests for felonies may take place when? at any time of day or night onany day of the week. (Penal Code Section 840)
Warrantless arrests for misdemeanors or infractions must be made when? between thehours of 6 a.m. and 10 p.m. (Penal Code Section 836), unless the person:• commits the crime in the officer’s presence,• is arrested in a public place, or• is already in custody pursuant to another lawful arrest.
An arrest warrant is? a written order signed by a magistrate which directs andcommands a peace officer to arrest the person named in the warrant for theoffense named in the warrant.In order to obtain an arrest warrant, the officer must establish probable cause.This is usually
Arrest warrants are required by Penal Code Section 815 to contain thefollowing information: • name of the defendant,• crime that defendant is suspected of committing,• time the warrant is issued,• city or county where the warrant is issued,• signature of the issuing authority with the title of office,• name of the court or other issuing agency,
Penal Code Section 817 allows what? a peace officer to obtain an arrest warrantbefore a criminal complaint has been filed.
The process for obtaining a precomplaint warrant includes the followingactions: • The peace officer makes a written or oral statement of probable cause(affidavit).• A magistrate evaluates the information in the affidavit to assess whetherprobable cause for arrest exists.• On finding probable cause, an arrest warrant is issued.• Subje
The affidavit of probable cause for a precomplaint arrest warrant may take theform of a: • sworn written statement,• sworn oral statement that is recorded, transcribed, certified, and filed incourt, or• telephonic oath supported by a written declaration which, along with anysupporting declarations and/or attachments, is faxed or e-mailed to t
Lawful access to private property is most commonly obtained when the: • officer’s entry is based on consent.• officer’s entry is based on exigent circumstances, for example, areasonable belief that the evidence will be destroyed if entry is delayed inorder to obtain a warrant.• an officer has lawfully entered the area for s
Knock and notice means? before entering a dwelling to make an arrest,with or without a warrant, officers must give notice to the person inside(Penal Code Section 844). A private dwelling can be any place the personresides (not just houses or apartments) or areas of a business no
Peace officers must follow the prescribed procedure for knock and notice: • announce their presence,• identify themselves as peace officers,• state their purpose,• demand entry,• wait a reasonable amount of time (based on circumstances), and• if necessary, forcibly enter premises.
Under certain circumstances, an officer may enter a dwelling without knockand notice. These circumstances are: • at the scene the officer is given consent to enter, or• when exigent circumstances exist.
Exigent circumstances exist when there is an imminent threat: - to life (including the officer’s),- to property (e.g., smell of natural gas),- of the suspect’s escape,- of the destruction of evidence or contraband.
According to Penal Code Section 847, when making a private person arrest,the person is, without unnecessary delay, required to: • take the person before a magistrate, or• deliver the arrested person to a peace officer.
Penal Code Section 142 states: “Any peace officer who has the authority toreceive or arrest a person charged with a criminal offense and willfully refusesto receive or arrest that person shall be punished by a fine not exceeding tenthousand dollars ($10,000), or by imprisonment in the
The conditions under which peace officers would not release a person arrestedwithout a warrant for a misdemeanor are (Penal Code Section 853.6(i)): mmediate release might jeopardize prosecution,• there is a likelihood that the offense(s) might continue or resume, placingpeople or property in imminent danger,• the person is dangerously intoxicated, needs medical care, or is unable tocare for himself o
Officers are required to take the person before a magistrate, rather than citeand release, if the arrest: • is for a misdemeanor violation of a protective court order involvingdomestic violence as defined in Penal Code Section 13700.• is pursuant to agency policy for responding to domestic violence calls perPenal Code Section 13701.
Penal Code Section 849(b) lists three situations where an officermay release a person who was arrested without a warrant. Those situationsexist: • when there are insufficient grounds for criminal complaint.• when the person was arrested for intoxication only and no furtherproceedings are desirable.• when the person was arrested only for being under the influence of acontrolled substance or drug, i
After being booked, and within three hours of being arrested, an arrested adultmust be allowed to what? make at least three completed phone calls. (Penal CodeSection 851.5)
Immunity is? is an exemption from a duty or penalty.
A diplomatic agent is? an official appointed by a government to reside in aforeign country to represent the political interests of citizens of the appointingcountry.
A consular officer is? an official appointed by a government to reside in aforeign country to represent the commercial interests of citizens of theappointing country.
The consular service staff are? people who work for the consular officer in aforeign country.
A stale misdemeanor exists when? an adult commits a misdemeanor inanother person’s presence (including a peace officer) and the person fails toarrest the adult within a reasonable time thereafter.
A reasonable time thereafter normally means? the person must have been incontinuous fresh pursuit of the individual until the arrest is made. If no arrestis made during that time, the individual can no longer be arrested without anarrest warrant.
The Supreme Court set forth four advisements known as? the Mirandawarning, which a peace officer must give to a person at the start of custodialinterrogation.
Custody means a formal arrest or its “functional equivalent.” It is objectivelydetermined by the totality of circumstances. People are in custody for Mirandapurposes when they have been: • actually placed under arrest, or• subjected to the kinds of restraints associated with a formal arrest (e.g.,handcuffs, guns, lockups, etc.).
Interrogation occurs when a peace officer: • engages in direct/express questioning of a person about a crime, or• says something or performs some action that is reasonably likely to elicitan incriminating response from a person.Not all questioning is “interrogation.” For example, routine booking q
CUSTODY + INTERROGATION = NEED FOR THE MIRANDA WARNING
Statements volunteered by a person, and not as a direct result of interrogationby the peace officer, are not affected by Miranda. Statements may bevolunteered in any setting, such as: • during a consensual encounter,• during a detention,• during an arrest,• during the booking process,• during forensic testing or transportation, or• after the person has invoked the Miranda right(s).
The Fifth Amendment privilege against self-incrimination applies totestimonial communication only.This privilege is not violated by requiring the person to provide: • handwriting samples,• voice samples for analysis, or• body fluids or other samples for analysis.
There are three elements in the Miranda process. They are: • advisement of the Miranda warning by the officer,• understanding of the warning by the person, and• waiver or invocation of the Miranda rights (silence and counsel) by theperson.
Once a person invokes the right to silence, Miranda requires that allinterrogation must cease. However, there are circumstances where reinitiationby the peace officer may produce an admissible statement. Thesecircumstances include: • a period of time has gone by, and• the officers have some new information, and/or• the officers want to ask about a different crime.
Because Miranda rights are personal, suspects may change their mind. Forexample, suspects may reinitiate or express a desire to make a statement, eventhough they earlier invoked the right to silence or counsel. Under suchcircumstances, the officer should: • readmonish the person with Miranda warnings,• obtain a valid express waiver,• then interrogate further, and• make a verbatim account of the reinitiation and any statement given.
If an officer is about to interrogate a person who is in custody, the officermust: advise the person of the four Miranda advisements.
Once the four Miranda advisements have been given and the person hasacknowledged understanding them- the person may either waive or invoke theright to silence, the right to an attorney, or both.
Interviews are conducted at the scene of a crime in order to obtain anddocument information needed to: • determine if a crime has taken place,• identify and locate victims and witnesses,• identify possible suspects, and• generate a crime broadcast to dispatch.
During the investigation of a crime, it is imperative that the investigatingofficer gather as much relevant information as possible. To supplement crimescene interviews or when conducting a follow-up investigation, additionalinformation may be obtained fr • physical evidence,• public and private records and other documents, and• informants.
Before suspects who are in custody may be interrogated, they must beinformed of, and waive their rights to: • remain silent, and• the presence of an attorney before and during questioning.
An interrogation serves a number of different purposes: • obtaining an admission or confession,• identifying individuals involved in a crime,• establishing a person’s guilt,• corroborating the facts of a crime, and• obtaining information that could lead to the recovery of evidence or property.
Prior to conducting an interrogation, officers should take the time to preparethemselves and form a strategy for obtaining incriminating information.In the course of this preparation, officers should: • read all case reports so as to be thoroughly familiar with the:- crime scene,- evidence collected, and- earlier statements,• learn as much as possible about the individual to be interrogated,• decide on an interrogation technique to begin with (understa
To control all outside influences on the individual to be questioned, theinterrogation should take place in a room that is: • soundproof,• isolated from any other activity,• well lit (but not with glaring lights),• furnished with a minimum of furniture and no distracting decorations,• secure and protected from interruptions
When the interrogating officers detect that the suspect is ready to talk openly andhonestly, the officers should continue with the technique being applied alongwith additional tactics to bring the interrogation to a successful conclusion.The interrogating • increase the intensity of the questioning,• sum up all lies or contradictions already expressed by the suspect, or• move closer to the suspect to gain his or her confidence.
Subterfuge is? the use of deception or falsehoods as an evasive tactic wheninterrogating a suspect. In contrast, coercion is the use of force (mental orphysical), threats, or overbearing psychological pressure to deprive a suspect’sfree choice to admit, deny, or refuse
Coercion may include: • falsely telling a suspect that members of his family will be heldaccountable if he does not confess to a crime.
Subterfuge may include: • falsely telling a suspect that he or she had been positively identified by awitness does not force the suspect to make a false confession. The use ofsubterfuge may play on suspect’s individual’s fear and sense of guilt to thepoint of the suspect making
Created by: hankesthetank on 2008-08-31



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