{"id":53139,"date":"2022-09-13T02:51:31","date_gmt":"2022-09-13T07:51:31","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=53139"},"modified":"2022-09-13T02:51:31","modified_gmt":"2022-09-13T07:51:31","slug":"ca9-arrest-for-misd-without-having-seen-it-violated-state-law-but-not-4a-qualified-immunity-granted","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=53139","title":{"rendered":"CA9: Arrest for misd without having seen it violated state law but not 4A; qualified immunity granted"},"content":{"rendered":"\n

The requirement that an arrest for a misdemeanor have occurred in the officer\u2019s presence is a statutory rule [I thought common law], but not a Fourth Amendment requirement. Here, the officer still had probable cause, but didn\u2019t see it. Not a Fourth Amendment violation. Vanegas v. City of Pasadena<\/a>, 2022 U.S. App. LEXIS 24544 (9th Cir. Aug. 31, 2022):<\/p>\n\n\n\n\n\n\n\n

There is one wrinkle. Violation of \u00a7 415(2) is a misdemeanor. See Cal. Penal Code \u00a7 17(b). Under California law, an officer may only make a warrantless arrest for a misdemeanor if he has probable cause to believe that the person committed the offense in the officer’s presence. Cal. Penal Code \u00a7 836(a)(1). So if Vanegas’s arrest was based on \u00a7 415(2), then the officers may have violated California law because his conduct was not in Officer Klotz’s presence. But that does not change the result. That’s because “[t]he requirement that a misdemeanor must have occurred in the officer’s presence to justify a warrantless arrest is not grounded in the Fourth Amendment.” Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 1990). So to establish a violation of the Fourth Amendment, it does not matter if Officer Klotz was present when Vanegas committed the misdemeanor. Rather, the “crucial inquiry” is whether Officer Klotz had probable cause to make the arrest. Id. at 773. Here, we hold that he did.<\/p>

Having found no violation of the Fourth Amendment, we need not proceed to the second question of whether the officers violated a “clearly established” right for Vanegas’s offense under \u00a7 415(2). So on this basis alone, Officer Klotz lawfully arrested Vanegas.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The requirement that an arrest for a misdemeanor have occurred in the officer\u2019s presence is a statutory rule [I thought common law], but not a Fourth Amendment requirement. Here, the officer still had probable cause, but didn\u2019t see it. Not … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[50,100,40],"tags":[],"class_list":["post-53139","post","type-post","status-publish","format-standard","hentry","category-arrest-or-entry-on-arrest","category-common-law","category-qualified-immunity"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53139","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=53139"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53139\/revisions"}],"predecessor-version":[{"id":53140,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53139\/revisions\/53140"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=53139"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=53139"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=53139"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}