“Stale or Cold Misdemeanor Rule – A Fossil”
"FROM THE CLASSROOM" by Ray Hill, Professor Emeritus, Santa Rosa Junior College
Ray Hill is a retired Police Lieutenant and Professor Emeritus at Santa Rosa Junior College. He has taught in the POST Basic Academy and Advanced Officer Training for 45 years.
“Stale or Cold Misdemeanor Rule – A Fossil”
It originated in 1907. The rule hasn’t been interpreted or followed by a case decision for over 70 years. It still hangs around in the P.O.S.T. Basic Law Enforcement Course curriculum. I teach it so students don’t fail a comprehensive exam question. Then I spend equal time explaining the rule as it applies in the real world of 2022 street work. It’s called the “Stale or Cold Misdemeanor Rule”.
This case law rule states if a misdemeanor is committed in an officer’s or deputy’s presence, and the suspect manages to elude capture within a reasonable time thereafter, in essence the suspect reaches “arrest safe haven”. If the suspect is observed the following day, even if there was probable cause to arrest yesterday, and there is still probable cause to arrest today, an arrest cannot take place. Reasonable time thereafter (contemporaneous) is interpreted in these older (ancient?) cases as continuous investigation to apprehend the suspect. I submit to you that continuous investigation on a misdemeanor crime is not feasible in most of our jurisdictions because here comes the next call for service, then the next call for service, etc. You can’t say to your Sergeant - Can I have the rest of my shift off to look for the bad guy?!
There exists no California statute for the “Stale Misdemeanor Rule”. In fact, the Penal Code states that a peace officer may make an arrest based upon probable when a public offense (misdemeanor) has been committed in his/her presence (836(a)(1) P.C). The time parameters in 840 P.C. for making a probable cause misdemeanor arrests make no reference to “stale” or “cold”.
The “Stale Misdemeanor Rule” originated 114 years ago (Peo. v. Craig (1907) 152 Cal 42). The last California case interpreting this rule was 71 years ago (Jackson v. Superior Court (1950) 99 Cal. App. 2d 183).
In the meantime, the U.S. Supreme Court made two decisions relating to probable cause arrests. In these decisions there is zero reference to a time limitation as to when an arrest can be made. Examples:
Plaintiff was driving home with her two young children after soccer practice. No one in the vehicle was wearing seat belts. Texas law required persons to wear seat belts during vehicle operation. The law also authorized arrest or the issuance of a citation at the officer’s discretion. The officer verbally berated the plaintiff, she was handcuffed, transported to the station, subjected to a property inventory, her mug shot was taken, she was fingerprinted, placed in a holding cell for one hour, taken before a magistrate, and released on bond. She pleaded no contest and paid a $50 fine. Plaintiff filed a civil “1983 Action” contending a custodial arrest for such a minor crime violated her Fourth Amendment rights. The U.S. Supreme Court ruled, “If an officer has probable cause to believe that an individual has committed even a very minor offense, he (she) may, without violating the Fourth Amendment, arrest the offender”. Although the plaintiff suffered “pointless indignity” and “gratuitous humiliations imposed by a police officer who was at best exercising extremely poor judgment”, the arrest was lawful. (Atwater v. City of Lago Vista (2001) 532 U.S. 318).
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).
This U.S. Supreme Court precedent supersedes the century. “plus” California cases (Right-to-Truth-in-Evidence - California Constitution Article 1 Section 28(d).
California appellate courts have also supported probable cause misdemeanor arrests with no mention of a “stale” or “cold” time period.
Where an officer made an arrest for a DUI misdemeanor when the driving occurred outside of his 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).
“There is no Fourth Amendment violation for an arrest based on probable cause even if the offense was committed outside the officer’s presence” (Peo. v. McKay (2002) 27 Cal 4th 601).
In an article published by the Alameda County District Attorneys Office, Point of View, Mark Hutchins, Editor “Arrests”, Spring 2009, Page 5, the Office wrote:
“But the ‘stale misdemeanor’ rule seems more akin to urban legend than a rule of law. As far as we could determine, the genesis was a comment in a 1907 case in which the court said—without citing any precedent—that [i]t seems to be generally held that an arrest for a misdemeanor without a warrant cannot be justified if made after the occasion has passed, though committed in the presence of the arresting officer”. “It should be noted that, even if there is any validity to this ‘rule’, a violation will not result in the suppression of evidence”.
In another article published by the Alameda County District Attorneys Office, Point of View, Mark Hutchins, Editor, “Misdemeanor Arrest Quirks” (Spring/Summer 2021), the Office wrote:
Calling this an “old, old rule” - “There are no cases in California (or anywhere else, as far as we know) in which evidence has been suppressed on grounds that the crime under investigation was a stale misdemeanor”. “The Supreme Court has observed that statutes in all 50 states permit warrantless misdemeanor arrests in a much wider range of situations—often whenever officers have probable cause for(a) a very minor criminal offense.”
Bottom Line: A later arrest for a misdemeanor that was committed in the officer’s presence, but cannot be immediately performed because of a suspect’s successful escape, does not violate the Fourth Amendment. The past California case law (again 114 years and 71 years old) has been superseded by U.S. Supreme Court, decisions by California appellate courts, and the California Constitution. Any incriminating evidence discovered or statements obtained are not subject to suppression. Because there is no Fourth Amendment violation, there is arguably no civil liability exposure (Title 42 – Section 1983 USC). Your probable cause is as good the next day, or the day thereafter, as it was yesterday, or the day before. In fact, probable cause is enhanced by an additional factor – flight. This is a consciousness of guilt inference (CALJIC 2.52). Innocent persons do not run from the police!!
What if you attempt to investigate the following day and the bad guy splits on you again? A person cannot resist a lawful detention – 148(a)(1) P.C. a new misdemeanor is committed in the officer’s presence (In re: Gregory S. (1980) 112 Cal App. 3d 770).
Conclusion: If an officer has probable cause to arrest a misdemeanor suspect who fled yesterday, at a later time the officer could detain, further investigate, and either take physical custody (834 P.C.), issue a citation to appear in court (853.6 et. al. P.C.), or gather information for the submission for a criminal complaint.
Maybe this area is ripe for internal discussion in your agency and an opinion from your District Attorney’s Office.
Thank you for your service and stay safe!
RH
Comments
What about a misdemeanor, say, battery, not committed in an officer's presence? I had a misdemeanor battery of a victim by a suspect unknown to her. The battery was unprovoked and was captured on video and was witnessed by an independent party. The victim was desirous of prosecution and willing to sign a private person's arrest form. At the time, I was unable to locate the suspect. If I were to locate the suspect the next day and detained him. Would I be able to have the victim respond, if available and could respond in a reasonable amount of time, to identify him, sign the private person's arrest form and make the arrest?
Thanks for all the help and time you all put into this.
Isaac – Interesting that your question mirrors another question posed to me by a Petaluma P.D. officer (former student) last month.
The article I posted “Stale or Cold Misdemeanor Rule – A Fossil” (3/1/22 – CAB00139) and another article posted by Bob Phillips - Disturbing the Peace and Refusal to Identify (11/27/22 – CAC0089) both reference 836 P.C. Here is an excerpt from Bob’s analysis.
Arresting for a Misdemeanor that Did Not Occur in the Officers’ Presence: In what the Court refers to as a mere “wrinkle” in the legal analysis of this case, it was noted that whether Vanegas was arrested for Pen. Code §§ 415(2) or 148(a)(1), doing so violated California’s statutory requirement that an officer can arrest for a misdemeanor only if that misdemeanor occurred in the officer’s presence. (See Pen. Code § 836(a)(1).) In this case, by the time Officer Klotz got involved, the defendant’s crime had already occurred. It did not occur in Officer Klotz’s presence. However, the Fourth Amendment has no such limitation. The “in the presence” rule is a California statutory requirement only, and not one that “is . . . grounded in the Fourth Amendment.” (See Welsh v. Wisconsin (1984) 466 U.S. 740, 756; and Barry v. Fowler(9th Cir. 199) 902 F.2nd 770, 772.) In other words, while arresting for a misdemeanor that did not occur in the officer’s presence may violate Pen. Code § 836(a)(1), it does not also violate the Fourth Amendment. “Rather, the ‘crucial inquiry’ is whether Officer Klotz had probable cause to make the arrest. . . . Here, we hold that he did.” There being no constitutional violation, no sanctions, including potential civil liability, may be imposed.
With that said, I see no reason why the case law quoted in both articles would not apply to 837 P.C. The key elements are (and always will be) - Was there a “fair probability” or “substantial chance” that a 242 P.C. violation occurred. You certainly have these elements here – Victim statement, video evidence, and independent witness. If this were a felony, you would grab the suspect the next day. Case law supports the same option for a misdemeanor.
So I will give you the same educational opinion (and that’s what it is because a legal opinion has to come from your City Attorney’s Office) I gave to the Petaluma officer. Detain (in essence you have constructive custody in the field in the same way you would have with most retail petty theft cases), investigate, ask questions (no actual custody – No Miranda), then issue out a misdemeanor citation to appear based upon probable cause. Probably no different in Santa Monica than it is here in the North Bay area, we don’t book most misdemeanors (853.6 P.C.).
Unless your department policy so dictates, I see no reason to try and locate the victim and have him/her come to the scene for a private person’s arrest.
Hope this helps with your question.
Stay Safe!
Ray Hill, Professor Emeritus
Santa Rosa Junior College
LUPC Faculty
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