From the Classroom
By Ray Hill  
Professor Emeritus, Santa Rosa Junior College  

Question: 
“Can a police officer in California legally serve a misdemeanor warrant not endorsed for night service inside a residence after 10 p.m., even if the officers entered the home legally on a radio call?” 

Perspective 1 – Robert Phillips, Deputy District Attorney (Retired), San Diego County District Attorney’s Office – Author of The Fourth Amendment and Search and Seizure - An Update, 23rd Edition: 

There is no case on point. However, I pulled the below from my 4th Amendment Outline (a document that you may access if you are a “pro subscriber” to LegalUpdates.com).  

Misdemeanor arrest warrants may be served anytime, anywhere, day or night, except when the suspect is not in public but not already in custody (e.g., in his residence). The warrant may not be served between 10 p.m. and 6 a.m. unless the warrant is “endorsed for night service,” in which case it may be served at any time. (P.C. § 840(4))  

  “Night service” must be justified in the warrant affidavit, describing the need to make the arrest in other than daytime. (See People v. Kimble (1988) 44 Cal.3rd 480, 494; discussing the “greater intrusiveness” of a nighttime search and the need for justifying nighttime service for a search warrant.)  

But, if an officer is already lawfully in the house, may a misdemeanor arrest warrant be executed despite the lack of a nighttime endorsement?  This is unknown. P.C. § 840 does not provide for any such exception. But since this limitation on arrests has been held to be statutory only, and not of constitutional origins (People v. Whitted (1976) 60 Cal.App.3rd 569), no evidence would be suppressed anyway, making this question moot. 

If you want my never-to-be-so-humble opinion, such as it is, if it ever becomes the subject of an appellate court case, I would guess that executing an existing misdemeanor arrest warrant when you are already lawfully inside will be held to be legal.  

I base that upon cases that come under the Ramey line of cases. Under People v. Ramey (1976) 16 Cal.3rd 263, 276 and Payton v. New York (1980) 445 U.S. 573 [100 S.Ct. 1371; 63 L.Ed.2nd 639], standing for the proposition that entry into one’s residence for the purpose of making an arrest without judicial authorization (or under any of a number of other exceptions), is illegal. One of the many exceptions to the so-called “Ramey Rule” is when you are already lawfully inside when probable cause to arrest is developed. (See People v. Ramey and People v. Dyke (1990) 224 Cal.App.3rd 648, 657-659, 661. See also United States v. Brobst (9th Cir. 2009) 558 F.3rd 982, 997 and People v. McCarter (1981) 117 Cal.App.3rd 894, 908.) Both cases involve officers lawfully inside executing search warrants.  

So as Ray Hill has indicated, if you want to play it safe and avoid any possible litigation (or, the ramifications of the suspect resisting arrest), don’t execute the misdemeanor arrest warrant. But if you'd like to make some case law to give me a more enlightened answer the next time I'm asked, arrest the guy. My prediction is that you will win any subsequent lawsuit.  

Perspective 2 – Mark Hutchins, Alameda County District Attorney’s Office, Editor of “Arrest Warrants,” Fall 2017, Page 10.  

“The question sometimes arises: If officers are lawfully inside the home after 10 p.m. because, for example, they have made a consensual entry to take a police report, can they arrest an occupant if they learn he is wanted on a warrant that is not endorsed for night service?” 

Although there is no case law directly on point, the Court of Appeal has noted that the purpose of the temporal limitations “is the protection of an individual’s right to the security and privacy of his home, particularly during night hours and the avoidance of the danger of violent confrontations inherent in unannounced intrusion at night.” It seems likely that none of these concerns would be implicated if officers had already been invited in. 

Perspective 3 – Ray Hill, Professor Emeritus, Santa Rosa Junior College 

I offer two answers to this question: One that reflects case law interpreting the Fourth Amendment of the U.S. Constitution, the other reflecting the California P.O.S.T. training standard.  

  As Bob Phillips explained, the case law is clear. An arrest based on probable cause is lawful despite the existence of a more restrictive state statute. An existing misdemeanor arrest warrant certainly supplies probable cause for arrest. 

Examples:  

• A Portsmouth, Virginia officer arrested the defendant for a traffic offense. Virginia law required release on a citation. An arrest search located crack cocaine. U.S. ruled the exclusion of evidence is not a remedy when an arrest is based upon probable cause. “Incorporating State arrest rules into the Constitution would make Fourth Amendment protections complex and variable from place to place and time to time....In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt.” (Virginia v. Moore (2008) 553 U.S. 164, 171) 

• An officer made a misdemeanor DUI arrest when the driving had occurred outside of his/her presence. The resulting blood-alcohol evidence was still admissible. “The Fourth Amendment supports arrests for misdemeanors when there is objective and reasonable probable cause to justify the arrest, regardless of the ‘in the presence requirement’ outlined in the California Penal Code.” (Peo. v. Burton (2013) 219 Cal. App. 4th Supp. 9) 

• The California Supreme Court concurred in a ruling that there is only one requirement for a valid arrest under the Fourth Amendment – the existence of probable cause. “So long as the officer has probable cause to believe that an individual has committed a criminal offense, a custodial arrest, even one effected in violation of state arrest procedure, does not violate the Fourth Amendment.” Vehicle Code section 40302(b) permits an officer to make a custodial arrest of an individual who is unable to produce satisfactory written evidence of identity after being stopped for a Vehicle Code infraction even though the violation is subject to punishment only by a fine. There is no requirement that an officer pursue independent means to verify the identity before taking custody (Peo. v. McKay (2002) 27 Cal 4th 601) 

In the Basic Police Academy, the P.O.S.T. standard for serving a misdemeanor arrest warrant is found in Learning Domain #15, Version 4.16, “Arrest,” Chapter 4-15.  

As discussed, P.C. §840 is specific as to when a misdemeanor arrest warrant may be served. No service between 8 p.m. and 6 a.m. unless the person is in a public place, in custody on other charges, or the warrant is endorsed for night service. No mention of service if you are already legally inside the residence on a call between 10 p.m. and 6 a.m. 

If a law enforcement officer feels the misdemeanor warrant is important enough to serve, I suggest that you explain the existence of the warrant to the person and give him/her the choice (it can be refused) to step outside for warrant service. Something like, “Mr. X, there is a warrant outstanding for your arrest. Could we step outside and take care of it? Your choice.” The person likely has no knowledge of 840 P.C. Record this transaction on your body-worn camera. If the person doesn’t want to step outside, come back at 6 a.m.  

  If the subject has already stepped outside into a common area – say, having been separated during an investigation – and then you discover the existence of the warrant, then service could be considered. 

Conclusion 

So, you have three perspectives on this question. Please be advised that LEGALUPDATES.COM doesn’t give legal advice (see terms of use). We provide case law updates and educational perspectives on the law. You need to discuss this procedure internally with your agency and seek direction from your agency’s legal advisor. There should be a consistent policy for all to follow.  

Stay safe,  

RH