SEARCH, SEIZURE, AND ARREST

THE “IN THE PRESENCE” RULE

To arrest someone for a felony, an officer or civilian needs only probable cause.2 The same is true if the crime was a “wobbler,” meaning an offense that can be prosecuted as either a felony or a misdemeanor.3 But if the crime was a straight Misdemeanor or an infraction, there is an additional requirement: Unless exempt by statute, the crime must have been committed in the “presence” of the arresting person, whether it was a civilian or an officer.4 As the Court of Appeal observed, “It is well established that the power to arrest for commission of a misdemeanor is dependent on the offense having been committed in the arresting person’s ‘presence.’”5

What do the courts mean by “in the presence?” Although they have not had occasion to elaborate much, they have said that the crime must have been “apparent to the senses,”6 but that this requirement should be interpreted “liberally.”7 Thus, it will be satisfied if the citizen was aware of circumstances from which he could reasonably infer that a crime was occurring in his presence. For this to happen, according to the Iowa Supreme Court, “the citizen must have observed conduct by the alleged offender that is sufficiently indicative of a crime in the course of its commission.”8

This occurred in People v. Lee9 after a security officer at an apparel store in Victorville saw Marcia Lee walk into a fitting room carrying five items of clothing. The officer, Diane
Paul, then saw Lee exit the room carrying three items which she returned to the racks. Paul then checked the fitting room and found one item there, which meant that one item was unaccounted for. So, when Lee left the store, Paul arrested her and found the missing item in her purse.

On appeal, Lee contended that the arrest was unlawful because Paul had not actually seen her conceal the merchandise in her purse. It didn’t matter, said the court, because the term “in the presence” has “historically been liberally construed in this state and, thus, “[n]either physical proximity nor sight is essential.”

Consequently, the court concluded that Lee’s act of closing the door to the fitting room “cannot be deemed such a removal of Lee from the ‘presence’ of Paul so as to strip her of authority to make the
arrest.”

1 People v. Taylor (1990) 222 Cal.App.3d 612, 622.

2 See Pen. Code § 836(a).

3 See People v. Stanfill (1999) 76 Cal.App.4th 1137, 1144 [“[A] ‘wobbler,’ an offense that confers discretion as to felony or misdemeanor punishment, becomes a misdemeanor only after the judgment and hence retains its felony character for purposes of the limitations period.””].

4 See Pen. Code §§ 837.1 [“A private person may arrest another . . . [f]or a public offense committed or attempted in his presence.”]; 16 [“public offense” include misdemeanors and infractions], 19.6 [“An infraction is not punishable by imprisonment.”]; 836(a)(1), People v. Garcia (1969) 274 Cal.App.2d 100, 103 [“The term ‘public offense’ includes misdemeanors.”]; Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1029 [“[I]f the driver does not move the vehicle in the
officer’s presence, the office is not committed in his presence.”]; Arpin v. Santa Clara Valley Transportation Agency (9th Cir. 2001) 261 F.3d 912, 920 [“[The officers] arrived after the alleged battery occurred. The officers could therefore not lawfully arrest Arpin for the battery.”]; Henslee
v. DMV (1985) 168 Cal.App.3d 445, 451; People v. Cove (1964) 228 Cal.App.2d 466, 469; People v. Alonzo C. (1978) 87 Cal.App.3d 707, 713 ]”The question of reasonable cause to believe that a misdemeanor is taking place in the officer’s presence is measured by the events observable to the
officer at the time of the arrest. If the officer cannot testify, based on his or her senses, to acts which constitute every material element of the misdemeanor, it cannot be said that the officer has reasonable cause to believe that the misdemeanor was committed in his presence.”]. NOTE: The
U.S. Supreme Court has not yet determined whether the “in the presence” rule is a requirement under the Fourth Amendment. Atwater v. City of Lago Vista (2001) 532 U.S. 318, 340, fn11.

NOTE: No suppression: Evidence will not be suppressed on grounds it was obtained as a result of a violation of the “in the presence” rule. See People v. McKay (2002) 27 Cal.4th 601, 605 [“[C]ompliance with state arrest procedures is not a component of the federal constitutional inquiry.”]; People v. Donaldson (1995) 36 Cal.App.4th 532, 539; Barry v. Fowler (9th Cir. 1990) 902 F.2d 770, 772; Higbee v. San Diego (9th Cir. 1990) 911 F.2d 377, 379.

5 People v. Johnson (1981) 123 Cal.App.3d 495, 499.

6 See Pate v. Municipal Court (1970) 11 Cal.App.3d 721, 725 [“And ‘presence’ . . . is not merely physical proximity but occurs when the crime is apparent to the officer’s senses.”]; People v. Burgess (1959) 170 Cal.App.2d 36, 41 [“The ‘senses’ include those of hearing and smell.”]; People v. Chew (1956) 142 Cal.App.2d 400, 403 [“[T]he offense is committed in the presence of an officer when the officer receives knowledge of the commission of an offense in his presence through any of his senses and this includes the sense of smell.”]; People v. Sjosten (1968) 262 Cal.App.2d 539, 543-4 [“‘Presence’ is not mere physical proximity but is determined by whether
the offense is apparent to the officer’s senses.”].

7 See Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1027 [“The requirement that the crime be committed in the officer’s presence is construed liberally”]; People v. Welsch (1984) 151 Cal.App.3d 1038, 1042 [“The requirement of ‘presence,’ entitling an officer to make a valid misdemeanor arrest, is to be interpreted liberally.”]; People v. Burgess (1959) 170 Cal.App.2d 36, 41; McDonald v. Justice Court (1967) 249 Cal.App.2d 960, 963 [“The term ‘in his presence’ is
liberally construed.”]; People v. Goldberg (1969) 2 Cal.App.3d 30, 33 [“The concept of a crime committed in the ‘presence’ of the officer has been liberally construed in California and includes perceptions by the use of all senses.”].

8 Rife v. D.T. Corner, Inc. (2002) 641 N.W.2d 761, 769.

9 (1984) 157 Cal.App.3d Supp. 9. NOTE: When Lee was Decided, evidence obtained by a security guard could be suppressed per People v. Zelinski (1979) 24 Cal.3d 357. Zelinski was subsequently abrogated. See Collins v. Womancare (9th Cir. 1989) 878 F.2d 1145, 1154 [“Zelinski directly conflicts with and is superseded by Lugar.”]