Policy Text
CATEGORY DATE ADOPTED LAST REVIEW
3 01/24/2011 01/01/20 25
TUSTIN POLICE DEPARTMENT GENERAL ORDERS
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364 – Criminal Process 1
364 CRIMINAL PROCESS
364.1 PURPOSE AND SCOPE
The purpose of this policy is to establish procedures governing the execution of the criminal
process. Tustin police officers will follow all statutory and case guidelines when executing criminal
process es. These processes include Private Persons Arrests, Miranda Advisement, and Arrests
(warrant, warrantless, and municipal code).
364.1.1 ACCREDITATION STANDARDS
This section pertains to the following CALEA Standards: 1.2.3 , 1.2.5 , 1.2.6 , 74.3.1
This section pertains to the following Standard Operating Procedures: N/A
This procedure pertains to the following Field Training Manual sections: §269, §304
364.2 ADVISING PRIVATE PERSONS OF THE ARREST PROCESS
Penal Code § 836(b) expressly mandates that all officers shall advise victims of domestic
violence of the right to make a private person’s arrest, including advice on how to safely execute
such an arrest. In all other situations, officers should use sound discretion in determining whether
or not to advise an individual of the arrest process.
a) When advising any individual regarding the right to make a private person’s arrest, officers
should refrain from encouraging or dissuading any individual from making such an arrest
and should instead limit advice to the legal requirements for such an arrest as listed
below ;
b) Private individuals should be discouraged from using force to affect a private person’s
arrest, and absent immediate threat to their own safety or the safety of others, private
individuals should be encouraged to refer matters to law enforcement officials for further
investigation or arrest .
364.3 ARRESTS BY PRIVATE PERSONS
Penal Code § 837 provides that a private person may arrest another:
a) For a public offense committed or attempted in his or her presence ;
b) When the person arrested has committed a felony, although not in his or her presence ;
c) When a felony has been in fact committed, and he or she has reasonable cause for
believing the person arrested has committed it .
Unlike peace officers, private persons may not make an arrest on suspicion that a felony has
been committed – the felony must in fact have taken place.
CATEGORY DATE ADOPTED LAST REVIEW
3 01/24/2011 01/01/20 25
TUSTIN POLICE DEPARTMENT GENERAL ORDERS
_______________
364 – Criminal Process 2
364.4 OFFICER RESPONSIBILITIES
Any officer presented with a private person wishing to make an arrest must determine whether or
not there is reasonable cause to believe that such an arrest would be lawful ( Penal Code § 847).
a) Should any officer determine that there is no reasonable cause to believe that a private
person’s arrest is lawful, the officer should take no action to further detain or restrain the
individual beyond that which reasonably appears necessary to investigate the matter,
determine the lawfulness of the arrest and protect the public safety ;
1. Any officer who determines that a private person’s arrest appears to be unlawful
should promptly release the arrested individual pursuant to Penal Code § 849(b)(1).
The officer must include the basis of such a determination in a related report .
2. Absent reasonable cause to support a private person’s arrest or other lawful grounds
to support an independent arrest by the officer, the officer should advise the parties
that no arrest will be made and that the circumstances will be documented in a related
report .
b) Whenever an officer determines there is reasonable cause to believe that a private
person’s arrest is lawful, the officer may exercise any of the following options:
1. Take the individual into physical custody for booking ;
2. Release the individual pursuant to a Notice to Appear ;
3. Release the individual pursuant to Penal Code § 849.
364.5 REPORTING REQUIREMENTS
In all circumstances in which a private person is claiming to have made an arrest, the individual
must complete and sign a Department Private Person’s Arrest form under penalty of perjury.
In addition to the Private Person’s Arrest Form (and any other related documents such as
citations, booking forms, etc.), officers shall complete a narrative report regarding the
circumstances and disposition of the incident.
364.6 MIRANDA ADVISEMENT PROCESS
Miranda Advisement - Any person who is arrested, or who is subjected to a contact with law
enforcement which has the formal attributes of an arrest and is questioned, must first be advised
of, acknowledge his /her understanding of, and freely and voluntarily waive, his /her Fifth
Amendment right against self -incrimination, pursuant to Miranda v. Arizona (1966) 384 U.S. 436
[16 L.Ed.2nd694].)
Beheler Admonition - The Beheler admonition informs the suspect they are not in custody and are
free to leave. A Miranda advisement is not required when the suspect is not under formal arrest
and not significantly deprived of his/her freedom. ( California v. Beheler , 463 U.S. 1121 (1983) ).
CATEGORY DATE ADOPTED LAST REVIEW
3 01/24/2011 01/01/20 25
TUSTIN POLICE DEPARTMENT GENERAL ORDERS
_______________
364 – Criminal Process 3
364.6.1