Post-Arrest Procedure

Although the lawfulness of an arrest will depend on what the officers did at or near the time the suspect was taken into custody, there are certain procedural requirements that must be met after the arrest is made.

BOOKING

Booking is “merely a ministerial function”172 which involves the “recordation of an arrest in official police records, and the taking by the police of fingerprints and photographs of the person arrested.”173 While the California Penal Code, for example, does not require booking,174 it is considered standard police procedure because one of its primary purposes is to confirm the identity of the arrestee.175 For this reason, booking is permitted even if officers were aware that the arrestee would be posting bail immediately.176

PHONE CALLS

The arrestee has a right to make completed telephone calls to the following: an attorney, a bail bondsman, and a relative. Furthermore, he has a right to make these calls “immediately upon being booked,” and in any event no later than three hours after the arrest except when it is “physically impossible.”177

ATTORNEY VISITS

Officers must permit the arrestee to visit with an attorney if the arrestee or a relative requested it.178

PROBABLE CAUSE DETERMINATION

If the suspect was arrested without a warrant, and if he has not bailed out,179 a judge must determine whether there was probable cause for the arrest. While such a determination must be made “promptly,”180 there is a presumption of timeliness if the determination was made within 48 hours after arrest.181 Note that in calculating the time limit, no allowance is made for weekends and holidays—it’s a straight 48 hours.182

What must officers do to comply with this requirement? They will usually submit a Declaration of Probable Cause which contains a summary of the facts upon which probable cause was based.

Note that a suspect may not be released from custody based on a tardy probable cause determination,183 nor may the charges be dismissed.184 However, statements made by the arrestee after the 48 hours had expired might be suppressed if the court finds that probable cause to arrest did not exist.

ARRAIGNMENT

After an arrestee has been charged with a crime by prosecutors (and thus becomes a “defendant”), he must be arraigned. An arraignment is usually a defendant’s first court appearance during which, among other things, a defense attorney is appointed or makes an appearance; the defendant is served with a copy of the complaint and is advised of the charges against him; the defendant pleads to the charge or requests a continuance for that purpose; and the judge sets bail, denies bail, or releases the defendant on his own recognizance.

A defendant must be arraigned within 48 hours of his arrest 185 unless, (1) he was released from custody,186 or (2) he was being held on other charges or a parole hold.187 Unlike the time limit for probable cause determinations, the 48-hour countdown does not include Sundays and holidays.188 Furthermore, if time expires when court is in session, the defendant may be arraigned anytime that day.189 If court is not in session, he may be arraigned anytime the next day.190 If, however, the arrest occurred on Wednesday after the courts closed, the arraignment must take place on Friday, unless Wednesday or Friday were court holidays.191

Note that short delays are permitted if there was good cause; e.g., defendant was injured or sick.192 A short delay may also be justified if, (1) the crime was serious; (2) officers were at all times diligently engaged in actions they reasonably believed were necessary to obtain necessary evidence or apprehend additional perpetrators; and (3) officers reasonably believed that these actions could not be postponed without risking the loss of necessary evidence, the identification or apprehension of additional suspects, or otherwise compromising the integrity of their investigation.193

Footnotes

172 See People v. Superior Court (Logue) (1973) 35 Cal.App.3d 1, 6.

173 See Pen. Code § 7.21. ALSO SEE Pen. Code § 13100 et seq. [criminal offender record information].

174 See 4 Witkin, California Criminal Law (3rd edition 2000), p. 258 [“[T]here is little statutory or case law coverage of the police practices of . . . booking arrested persons.”].

175 See Doe v. Sheriff of DuPage County (7th Cir. 1997) 128 F.3d 586, 588 [one purpose of booking is to confirm the arrestee’s identity]; 3 LaFave Search and Seizure (Fourth Edition) at p. 46 [“law enforcement agencies view booking as primarily a process for their own internal administration”].

176 See Doe v. Sheriff of DuPage County (7th Cir. 1997) 128 F.3d 586, 588.

177 See Pen. Code § 851.5.

178 See Pen. Code § 825(b).

179 See In re Walters (1975) 15 Cal.3d 738, 743.

180 See County of Riverside v. McLaughlin (1991) 500 U.S. 44, 47.

181 See County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56; Powell v. Nevada (1994) 511 U.S. 79, 80 [“[Riverside] established that ‘prompt’ generally means within 48 hours of the warrantless arrest”].

182 See County of Riverside v. McLaughlin (1991) 500 U.S. 44, 58; Anderson v. Calderon (9th Cir. 2000) 232 F.3d 1053, 1070 [“The McLaughlin Court made clear that intervening weekends or holidays would not qualify as extraordinary circumstances”].

183 See New York v. Harris (1990) 495 U.S. 14, 18 [“Nothing in the reasoning of [Payton v. New York] suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house.”]; People v. Watkins (1994) 26 Cal.App.4th 19, 29 [“Where there is probable cause to arrest, the fact that police illegally enter a home to make a warrantless arrest neither invalidates the arrest itself nor requires suppression of any postarrest statements the defendant makes at the police station.”]; Pen. Code § 836(a). NOTE: The United States Supreme Court indicated that even if a judge ordered the release of a suspect because of a post-arrest time limit violation, the suspect could be immediately rearrested if probable cause continued to exist. New York v. Harris (1990) 495 U.S. 14, 18.

184 See People v. Valenzuela (1978) 86 Cal.App.3d 427, 431.

185 Pen. Code § 825.

186 See Pen. Code § 849(a); Ng v. Superior Court (1992) 4 Cal.4th 29, 38.

187 Ng v. Superior Court (1992) 4 Cal.4th 29, 38; People v. Gordon (1978) 84 Cal.App.3d 913, 923; O’Neal v. Superior Court (1986)

185 Cal.App.3d 1086, 1090; People v. Hughes (2002) 27 Cal.4th 287, 326 [parole hold].

188 See Pen. Code § 825(a)(2); People v. Gordon (1978) 84 Cal.App.3d 913, 922 [“Sunday was excludable”].

189 See Pen. Code § 825(a)(2).

190 See People v. Gordon (1978) 84 Cal.App.3d 913, 922.

191 See Pen. Code § 825(a)(2).

192 See In re Walker (1974) 10 Cal.3d 764, 778; People v. Williams (1977) 68 Cal.App.3d 36, 43.

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Unless otherwise indicated, this page's content is adapted from the following sources: 5.3 Arrests by Larry Alvarez, used under CC BY 4.0. This page is licensed under CC BY 4.0.