In order for the police to make an arrest for a misdemeanor offense the police have to witness the crime.
Driving under the influence is a misdemeanor. If the police observe an individual driving and that person is under the influence, then the police can arrest that person because they witnessed the offense. If an individual drives under the influence and is not observed driving by the police then that person cannot be arrested at a later time. This example does not apply to felonies like felony hit and run, vehicular manslaughter etc. The driver could tell the police the following day that he had been driving under the influence the night before and the police could not arrest the individual for the offense.
Exceeding the posted speed limit by a certain speed is a misdemeanor. If a driver accelerates his vehicle to 100 mph on the freeway he cannot be cited or arrested unless the police witness the driver speeding. If the driver leaves the freeway and tells a police officer he was just driving 100 mph the police officer cannot cite the driver for speeding because the police officer did not observe the violation.
If an individual batters another individual the victim can make a citizen’s arrest. However, the police cannot arrest the suspect because battery is a misdemeanor and the police did not witness the crime. The police can complete a crime report which can be used to file misdemeanor charges against the suspect by the concerned prosecutor.
Solicitation of prostitution is a misdemeanor which means the police have to witness the crime to make an arrest. In the case of prostitution the crime occurs when money or consideration is offered for sex or sex is offered for money or consideration. The courts have held that merely witnessing the exchange of money between individuals suspected of engaging in the act of prostitution is not sufficient to witness the crime of prostitution because the police can not testify as to what was in the minds of the participants when the money was exchanged. Therefore, almost without exception one party in the transaction has to be the police so the arresting officer can testify as to what he paid the other party for or what she accepted the money for.
If the police could arrest individuals for suspected prostitution then they could round up street walkers for just being on the sidewalk looking like prostitutes. Do you think the police would go to all the trouble of going undercover and getting a violation if they could just arrest the street walkers for obviously being prostitutes?
If the police suspect a prostitute is operating out of a motel room and the police watch the room and see men enter and leave, they cannot arrest anyone for prostitution because they did not witness the crime. Even if they somehow obtained a warrant to place closed circuit cameras in the room and video recorded the prostitute having sex with different men and men leaving money on a table they still couldn’t make an arrest because they could not testify the exchange of money was for sex. Not being able to make an arrest is not to say a person could not be charged in court for a misdemeanor.
In a typical sting operation a hobbyist responds to a motel room and offers undercover female officer money for sex. The female officer makes the arrest. The police would have no reason to stop a suspected hobbyist before he entered the room. As a matter fact, if they did stop a suspected hobbyist before he entered the room they would scare the hobbyist away without being able to make an arrest.
If the investigation involves an agency then that’s a different story because pimping and pandering are felonies in California. In that case, an arrest can be made on probable cause.
If the police suspect an individual of pimping, which is a felony, the police do not have to witness the crime to make an arrest. If a prostitute is arrested for prostitution, a misdemeanor, and tells the police she was forced into prostitution by a pimp, the police can arrest the suspected pimp based on the prostitute’s statement because pimping is a felony. In the case of the pimp as with the agency, the police can use hobbyists and prostitutes as witnesses because pimping and pandering are felonies.
In the case of a felony the police can make an arrest if the officer has reason to believe a felony has been committed whether a felony has or has not been committed. The police do not have to witness the crime. An example would be where a robbery occurred and the suspect got away. At a later time, the police observe an individual matching the description of the robbery suspect. In that case the police would have probable cause to stop the individual and conduct an investigation. If after talking to the individual the police have a reasonable belief the individual committed the robbery then the officers can arrest the individual for the robbery.
Misdemeanors: The police have to witness the crime to make an arrest for a misdemeanor offense.
Felony: The police can make an arrest for a felony offense if they have reason to believe a crime has been committed whether a crime has or has not been committed. (Probable Cause arrest.)
Just because the police cannot make an arrest for a misdemeanor not committed in their presence does not mean you cannot be charge with a misdemeanor violation by a court. I think that is where many people confuse arrest with being charged with a crime.
The above scenarios apply to California. However laws of arrest regarding misdemeanors and felonies are rather consistent through out the country.
-- Modified on 2/9/2009 10:53:03 AM
This stuff gives me a headache.
Still and all, thanks for the primer on arrest versus charged and misdemeanor versus felony.
(still not a lawyer)
Thank you for taking the time to write this. However two things come to mind that I would like your opinion on, particularly as to how this would be applicable to us.
" If the driver leaves the freeway and tells a police officer he was just driving 100 mph the police officer cannot cite the driver for speeding because the police officer did not observe the violation. "
And yet, cameras are being used in lieu of officers these days. In Washington State you can get speeding tickets and infractions for not stopping at a red light, based on the "witness" of a camera. It seems that there is a bit of loose play with what is considered "observing the violation" and/or what a "police officer" is.
Also,
"If the police suspect a prostitute is operating out of a motel room and the police watch the room and see men enter and leave, they cannot arrest anyone for prostitution because they did not witness the crime. "
The police can arrest anyone at any time. Whether or not it holds up in court is a completely different matter. (There have been numerous cases dismissed due to police misconduct, fabricated and/or lack of evidence, etc.) At that point for many people the damage is already done. Then there is the situation that was the case with one of my own relatives - the police can decide NOT to arrest you in Las Vegas, the prosecutor can decide to press charges at a later date with no notification, then when you are pulled over for a minor traffic violation back in your home state you are arrested on a warrant for failure to appear.
Now. How can a warrant be issued for a court appearance that you were never notified of? When he tried to file a formal complaint he was told that most people arrested in LV are travelers and as such it's (essentially) easier to have them arrested and sent back at a later date than to try to notify everyone of the court dates. Huh!?!
: O
I would enjoy your thoughts on these situations.
-- Modified on 2/9/2009 1:16:01 PM
In regards to cameras: That issue was challenged in California when cameras were first used. The courts held that an officer viewing a violation via a camera was substantially the same using binoculars to witness a crime. I don’t know how it is done in other states but in California a police officers views the images and decides which incidents constitute a violation. He then issues citations for the ones he has determined to be a violation. The officer is citing the drivers based on what he observed, not on what someone told him.
In regards to the police can arrest anyone at anytime: I discussed how the law is applied in certain cases. Does that mean the police never overstep their authority and make bad arrest; of course not? As you mentioned it happens all the time, but police misconduct and does not change the law.
In regards to Las Vegas: I cannot comment on Nevada state law and how it is applied. In California there are time limits for when a prosecutor can file charges for specific crimes. If is not uncommon for a case to be dismissed in court because the state is not prepared for trial and the time limit has been reached. In most cases the state has a second chance to file charges after the first dismissal. If the state files charges a second time, a subpoena to appear in court is issued for the defendant. In California the state is required to exercise due diligence in an attempt to notify the defendant of the subpoena to appear in court. Due diligence can simply be mailing a copy of the subpoena to the defendant. The defendant is not required to sign the subpoena. If the defendant fails to appear the court will issue a bench warrant.
That cannot be right –that would be a due process violation for sure.
What probably happened if there was no arrest was the officer issued your friend a misdemeanor citation and had him sign it. The citation required him to appear in court at a specified time. If your friend failed to appear, than a warrant for arrest could be issued.
Alternatively, if a complaint was filed against your friend for the offense, the law would have required that a summons be served him by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode.
But the state cannot institute criminal proceedings against a defendant with no notice at all.
“The police can arrest anyone at any time.”
I would also note the law is not quite as draconian as that statement would suggest. The police certainly cannot lawfully arrest anyone at any time. There are significant restrictions on the arrest power and whether for a misdemeanor or felony the police always must have probable cause to arrest.
If they arrest unlawfully, the magistrate usually throws the arrest out very early in the case. Further, if they arrest unlawfully in violation of the Constitution and in circumstances where there is no qualified immunity, the arresting officer is subject to a Section 1983 lawsuit for civil damages; if they arrest in violation of state law, the officer or his agency may liable for committing a tort. So it is not quite as bad as it may seem. Always there are remedies in our country.
-- Modified on 2/10/2009 6:00:32 PM
Without getting too much personal information out, I was *intimately* involved in all of the details, paperwork and proceedings. I was the one who posted bail, who hired and coordinated with the lawyer, who nitpicked each detail available to keep the relative out of prison, and personally ensured that he made every mandated court appearance. (And yes, LV jacked him around several times before finalizing the case.)
I find it funny that you are trying to use words to differentiate "lawfully arrest" vs. arrest. You know, when you're sitting in jail... you may HOPE you had an unlawful arrest and it may be on your mind, though it's really the least of your problems.
.02
Sola, you said he was arrested for failing to appear at a court date. But if he was never given notice that charges had been filed and that he was suppose to appear in court by a certain date, how could he possibly appear?
You seem to say he was arrested on a a bench warrant rather than an a general arrest warrant. You did not say what the underlying offense was but in Nevada bench warrants cannot be issued without notice even for that most minor of violations a parking ticket:
2. When a traffic citation for a parking violation has been issued identifying by license number a vehicle registered to a person who has not signed the citation, a bench warrant may not be issued for that person for failure to appear before the court unless:
(a) A notice to appear concerning the violation is first sent to the person by first-class mail within 60 days after the citation is issued; and
Suppose a key defense witness had died in between the time the charges were filed and your relative was arrested. He would have been greatly prejudiced by the lack of notice of the charges.
So at the very least I would have expected the defense atty to challenge the proceedings on due process grounds.
And on that other point - if you are sitting in jail as the result of an unlawful arrest, a million dollar recovery against LE might not be a bad thing to be thinking about.
It's why we have those shepards of the Lord, otherwise known as the lawyers, to file that kind of lawsuit and keep a third of the recovery.
"But that does not make any sense"
"...you said he was arrested for failing to appear at a court date. But if he was never given notice that charges had been filed and that he was suppose to appear in court by a certain date, how could he possibly appear?"
Uh huh, I agree. As I said, I nitpicked the details (and actually, screamed bloody murder) about this. He would have not been arrested if he had a summons as he would not have missed the court date. This was not a traffic violation.
" So at the very least I would have expected the defense atty to challenge the proceedings on due process grounds... And on that other point - if you are sitting in jail as the result of an unlawful arrest, a million dollar recovery against LE might not be a bad thing to be thinking about."
If YOU are a Nevada lawyer feel free to hit me up about that million dollar recovery. Otherwise, I'll stick with what the lawyer and the courts told me - this situation of warrant issued on a FTA to a court date that had no summons is "common."
There is what SHOULD happen, and what we would expect to happen... then there is what DOES happen.
Bottom line, I'm suggesting that we get out of the text book law and into the real world when analyzing our risk. That's all. Anyways, this was one piece of my whole post and I've gotten no replies to my "I'm also curious" post. Any thoughts on the other matters I mentioned?
-- Modified on 2/10/2009 8:51:30 PM
Is everyone going to simply let marikod off without calling him out on the, "shepards of the Lord" comment?
Now, I am not a religious man, but that seems to be blasphemy of the highest order. Watch out for lightning strikes in your area!
Except for Mr. Fisher and GaGambler, the usual readers of this board tend to be deadly serious about the legal issues discussed. Satire, sarcasm, humor, word play, and cultural references tend to sink as quickly as…as …well as quickly as my Monty Python post did.
What about situations where the lady crosses state lines and/or there is financial matters (think, Spitzer) which moves into felony territory.
I've also heard that two ladies working together or with one another (duos and/or agency and scheduler) is conspiracy, and another consideration drugs on site or any other "multiple misdemeanor" = automatic felony. Old wives tale, or truth?
Item #1:
“What about situations where the lady crosses state lines and/or there is financial matters (think, Spitzer) which moves into felony territory.”
Crossing state lines under certain circumstances could be a violation of Federal Law which would be a completely separate crime.
Item #2:
“I've also heard that two ladies working together or with one another (duos and/or agency and scheduler) is conspiracy, and another consideration drugs on site or any other "multiple misdemeanor" = automatic felony. Old wives tale, or truth?”
A conspiracy is when two or more people conspire to commit any crime. Conspiracy is a separate crime from the crime they conspire to commit. By the way, conspiracy is a felony even if the crime the conspirators conspire to commit is a misdemeanor.
If two prostitutes engage in an act of prostitution together with a hobbyist they would be committing two separate crimes even though the acts occur at the same time. The hobbyist would be a co principal in each crime with each prostitute. The hobbyist would be committing two crimes and the prostitutes would be committing one crime each. Since the prostitutes are not co principals in the same crime they could not be committing conspiracy to commit a crime. Prostitution is a victimless crime because all participants are principals in the crime. There is no victim.
An agency could possibly be charged with pimping if the state could prove the agency was living off the labor of the prostitute(s). An agency could also be charged with pandering since pandering is recruiting individuals to work as prostitutes. Both pimping and pandering are felonies.
A scheduler and a driver could not be charged with pimping because they are paid by the prostitute for providing a service as opposed to taking a cut of what she makes. There might be some obscure violation like facilitating a crime that they could be charged with but I doubt they could be convicted on such a charge. A driver would be like a cab driver transporting a prostitute to her date. The cab driver wouldn’t be participating in the crime and he would be getting paid by the prostitute for performing a service for her, not a percentage of what she earns.
When guns, drugs etc. are involved the entire situation changes.
Multiple misdemeanors in and of themselves do not equate to a felony. There are certain crimes that are misdemeanors that become felonies upon conviction of the same crime more than once.
I'm not sure how that all ties back into the original misdemeanor witness to arrest premise. I'll eyeball it again after some sleep...
Travel Act, which makes it a federal crime to use interstate facilities [the telephone and internet would be examples] in furtherance of conduct that violates state prostitution laws, and RICO wherein the Travel Act violation was one of the RICO predicate acts.
Agencies frequently run afoul of the Mann Act. The principal statute makes it a federal felony to “knowingly transport any individual” across state lines “with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense...” Violators can be fined and imprisoned up to ten years.
With regard to Mr. Spitzer, however, the DOJ decided not to prosecute him for either ofense
"In light of the policy of the Department of Justice with respect to prostitution offenses and the longstanding practice of this Office, as well as Mr. Spitzer's acceptance of responsibility for his conduct, we have concluded that the public interest would not be further advanced by filing criminal charges in this matter," Garcia said in a statement.
It is true that there is a distinction between felonies and misdemeanors for certain purposes, but the distinction requiring that the police actually see the crime being committed to allow for an arrest for a misdemeanor only applies to a WARRANTLESS arrest.
If a warrant is issued by a magistrate or judge for a misdemeanor offense based on probable cause, the police are absolutely entitled to effect an arrest, because they are executing the warrant. Thus, the police can arrest someone for a misdemeanor not committed in the presence of the police officer if the police officer has an arrest warrant.
My law degree has rust and barnacles all over it, I did read law with Abraham Lincoln, but I do remember this distinction.
Making an arrest pursuant to a warrant has nothing to do with the requirement that the police witness the crime to make a misdemeanor arrest. If the police witness a crime they do not need a warrant to make an arrest. If you think about what you said, you substantiated what I said in the original post.
Not all arrest warrants are probable cause warrants. Some arrest warrants are bench warrants for failing to appear. Probable cause is not required for a bench warrant. If you are subpoenaed to appear in court and you don’t show up the judge issues a bench warrant for failing to appear. No probable cause required.
Arrests warrants are another issue completely and have absolutely nothing to do with the examples I cited.
An infraction is a lesser wrong doing than a misdemeanor and cannot be punished by a jail sentence. Failing to stop for a stop sign is an infraction. If you are cited for failing to stop for a stop sign and take it to court and lose, the court cannot punish you with jail time. However, if you are cited for an infraction and you fail to appear in court, or pay the fine then the court will issue a warrant for your arrest. The warrant is for failing to appear, not the infraction.
There are exceptions to the requirement that the police witness the crime to make a misdemeanor arrest but they don’t apply to prostitution or to the examples I cited. One example is with juveniles. Police can arrest a juvenile for a misdemeanor not committed in their presence. The police can arrest a driver involved in a traffic accident, who is under the influence, without witnessing the driving. There are other exceptions but why go there? They are not pertinent to laws relating to prostitution and only serve to confuse the reader. It is best to stay focused on specific issues rather than try to conceive every possible exception to the rule.
Now I ask you what was incorrect and/or incomplete?
The information provided applies to California.
Just as I said, a policeman may lawfully make a misdemeanor arrest without witnessing the crime if he has a warrant to arrest the perpetrator.
You said that a policeman cannot arrest someone for a misdemeanor he or she didn't see the perpetrator commit. As with all generalities, that is not right. The policeman cannot effect a WARRANTLESS arrest for a misdemeanor unless commmitted in the presence of the arresting officer, but any police officer may execute an arrest warrant for a misdemeanor offense without percipient knowledge of the crime itself. That's all.
You have misled anyone who relies on your post into thinking that unless a police officer witnesses a misdemeanor act of prostitution (or any other misdemeanor, for that matter), the participants cannot be arrested. That's a sad and sorry twisting of the law.
All a police officer with probable cause has to do is conduct an investigation, approach a magistrate or judge, present probable cause and get an arrest warrant. Then, the participants may be arrested at any time before the statute of limitations on that misdemeanor expires.
Wake up!
your awsome, Beautifully said, good job ,,
It seems Like Balboa likes to spar,argue & distract from the points that
good folks are trying to make. I am impressed you stood your ground.....
Not being a lawyer but working for a large law firm and being very interested in the law, I am often included in debates, discussion groups and informal "what do you think" sessions because, as a non-lawyer, our staff will often ask how the non-lawyer interprets new case law, decisions of the State SC and the Federal Courts, etc. It gives them a better handle on the client base and on a lay person's perception. I learn a lot from these sessions, and always appreciate learning something new, and continue to learn from this board as well.
Thanks for your time in outlining an important distinction. We all know that knowledge is only second to safety in the hobby, and I appreciate you sharing your knowledge with us.