SEARCH SEIZURE AND ARREST
If a citizen has a legal right to arrest a suspect and elects to do so, there is a procedure that officers should follow. This procedure can be divided into four parts:
(1) taking the arrestee into custody,
(2) arrest formalities,
(3) disposition of the arrestee, and
(4) searching the arrestee.
If the suspect is present when officers initially meet with the citizen, and if the citizen arrests him or has already done so, officers must “receive” him, meaning they must take custody of him. The purpose of this requirement is to “minimize the potential for violence when a private person restrains another by a citizen’s arrest by requiring that a peace officer (who is better equipped by training and experience) accept custody of the person arrested from the person who made the arrest.” For example, when this issue arose in Wang v. Hartunian, the court pointed out that the officers “were in fact obligated to take custody of Wang merely at the direction of [the citizen], that is, when [he] informed the police that he had arrested Wang.”
22 See Pen. Code § 142 [officer must “receive” the suspect]. ALSO SEE Kinney v. County of Contra Costa (1970) 8 Cal.App.3d 761, 769. NOTE re use of force: A citizen may use reasonable force to effect an arrest. See People v. Randle (2005) 35 Cal.4th 987, 1002 [“Had [the citizens] been
Attempting to effect a citizen’s arrest, the use of reasonable force may have been permitted.”]; People v. Fosselman (1983) 33 Cal.3d 572, 579 [“[The citizen] was entitled to use reasonable force to detain [the suspect].”]; People v. Garcia (1969) 274 Cal.App.2d 100, 105 [when assaulted by the suspect, the citizen “was justified in using such force as was reasonable for defendant’s arrest”]; Pen. Code § 835 [“The person arrested may be subjected to such restraint as is reasonable for his arrest and detention.”].
23 73 Ops. Cal. Atty. Gen 291, 295. ALSO SEE Green v. DMV (1977) 68 Cal.App.3d 536, 541 [“Very wisely, [the citizen] chose to enlist the aid of the police in effectuating the arrest rather than
risking his own safety.”]; People v. Sjosten (1968) 262 Cal.App.2d 539, 544 [“Frequently . . . it is most prudent for a private citizen to summon a police officer to assist in making the arrest.”].
24 (2003) 111 Cal.App.4th 744, 750.
25 See People v. Harris (1967) 256 Cal.App.2d 455, 460 [“[A citizen’s arrest] continues through a transfer of custody of the accused from a citizen to a peace officer.”]; People v. Roland K. (1978) 82 Cal.App.3d 295, 298 [the arrest by the citizen “continues even though he transfers custody of
the accused to a peace officer.”].
26 See People v. Roland K. (1978) 82 Cal.App.3d 295, 298 [an arrest by a citizen “continues even though he transfers custody of the accused to a peace officer.”].
Searching the arrestee
One last issue: May the citizen or officers search the arrestee? The answers are as follows:
SEARCH BY CITIZEN: A citizen may seize any weapons in the arrestee’s possession, and any evidence in plain view.53
He may not, however, conduct a search incident to the arrest
or otherwise search for evidence unless it’s a “merchant” search.”54
See Pen. Code § 846; People v. Crowder (1982) 136 Cal.App.3d 841, 844 [“Like all private persons, security employees can arrest or detain an offender and search for weapons”]; People v.
Martin (1964) 225 Cal.App.2d 91, 94-5.