The standard to arrest is probable cause. Darren Chaker recites recent cases discussing the fundamentals to support an arrest. Too often police attempt to bully there way into having a suspect giving consent to search his or her car, house, backpack, etc. Threatened with arrest the suspect gives consent and the officer will often leave out of the report the suspect was bullied into giving it. With the advent of police cameras these issues are not as prevalent, however as we each see all too often, some police officers are incapable of containing themselves even when they know they are being recorded.
Darren Chaker recites a few cases to illustrate when police can actually arrest a suspect:
- “In California, ‘an officer has probable cause for a warrantless arrest ‘if the facts known to him would lead a [person] of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”’[Citations.]” (Blakenhorn v. City of Orange (9th 2007) 485 F.3 463, 471; see also People v. Price (1991) 1 Cal.4 324, 410.)
- “Probable cause” merely requires that “the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [plaintiff] had committed or was committing an offense. . . . Police must only show that, under the totality of the circumstances, . . . a prudent person would have concluded that there was a fair probability that [the suspect] had committed a crime.” (Hart v. Parks (9 Cir. 2006) 450 F.3 1065-1066.)
- “Probable cause to arrests exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of caution to believe that an offense has been or is being committed by the person being arrested.” (Citations omitted; Ewing v. City of Stockton (9 Cir. 2009) 588 F.3rd 1065, 1069.)
- “Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested. (Citation) For information to amount to probable cause, it does not have to be conclusive of guilt, and it does not have to exclude the possibility of innocence. . . . (Citation) . . . (P)olice are not required ‘to believe to an absolute certainty, or by clear and convincing evidence, or even by a preponderance of the available evidence’ that a suspect has committed a crime. (Citation) All that is required is a ‘fair probability,’ given the totality of the evidence, that such is the case. (Garcia v. County of Merced (9th Cir. 2011) 639 F.3rd 1206, 1209.)
- Avoidance of eye contact – a common “suspicious factor” cited by police against Hispanics – is meaningless. ( People v. Valenzuela (1994) 28 Cal.App.4th 817, 828 [“Failure to meet the border agent’s gaze, and kneading of the steering wheel, even if indicative of nervousness, does not provide a sufficient reason to suspect defendant was…doing anything…illegal”]; United States v. Garcia-Camacho (9th Cir.1995) 53 F.3d 244, 247; United States v. Rodriguez (9th Cir. 1992) 976 F.2d 592, 596; United States v. Hernandez-Alvarado (9th Cir.1989) 891 F.2d 1414, 1419; Nicacio v. INS (9th Cir.1986) 797 F.2d 700, 704; United States v. Lamas (5th Cir.1979) 608 F.2d 547, 549-550; United States v. Lopez (5th Cir. 1977) 564 F.2d 710, 712.)
Although there are dozens of more examples, one thing is clear: do not get bullied into giving consent to search. Stand your ground, be respectful to police, and assert your rights.