California Penal Code § 836 PC – Warrantless Arrests

California Penal Code 836 PC allows police to arrest suspects without an arrest warrant or Ramey warrant if the officer has probable cause to believe the suspect committed:

1. a felony,
2. domestic battery,
3. a violation of a domestic violence restraining order,
4. assault or battery on a family member, (ex)dating partner, or elderly person,
5. a concealed firearm violation in an airport, or
6. any other misdemeanor done in the officer’s presence.

The full text of the statute reads as follows:

836. (a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, may arrest a person whenever any of the following circumstances occur:
(1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence.
(2) The person arrested has committed a felony, although not in the officer’s presence.
(3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed.

(b) Any time a peace officer is called out on a domestic violence call, it shall be mandatory that the officer make a good faith effort to inform the victim of their right to make a citizen’s arrest, unless the peace officer makes an arrest for a violation of paragraph (1) of subdivision (e) of Section 243 or Section 273.5. This information shall include advising the victim how to safely execute the arrest.

(c)(1) When a peace officer is responding to a call alleging a violation of a domestic violence protective or restraining order issued under Section 527.6 of the Code of Civil Procedure, the Family Code, Section 136.2, 646.91, or paragraph (2) of subdivision (a) of Section 1203.097 of this code, Section 213.5 or 15657.03 of the Welfare and Institutions Code, or of a domestic violence protective or restraining order issued by the court of another state, tribe, or territory and the peace officer has probable cause to believe that the person against whom the order is issued has notice of the order and has committed an act in violation of the order, the officer shall, consistent with subdivision (b) of Section 13701, make a lawful arrest of the person without a warrant and take that person into custody whether or not the violation occurred in the presence of the arresting officer. The officer shall, as soon as possible after the arrest, confirm with the appropriate authorities or the Domestic Violence Protection Order Registry maintained pursuant to Section 6380 of the Family Code that a true copy of the protective order has been registered, unless the victim provides the officer with a copy of the protective order.
(2) The person against whom a protective order has been issued shall be deemed to have notice of the order if the victim presents to the officer proof of service of the order, the officer confirms with the appropriate authorities that a true copy of the proof of service is on file, or the person against whom the protective order was issued was present at the protective order hearing or was informed by a peace officer of the contents of the protective order.
(3) In situations where mutual protective orders have been issued under Division 10 (commencing with Section 6200) of the Family Code, liability for arrest under this subdivision applies only to those persons who are reasonably believed to have been the dominant aggressor. In those situations, prior to making an arrest under this subdivision, the peace officer shall make reasonable efforts to identify, and may arrest, the dominant aggressor involved in the incident. The dominant aggressor is the person determined to be the most significant, rather than the first, aggressor. In identifying the dominant aggressor, an officer shall consider (A) the intent of the law to protect victims of domestic violence from continuing abuse, (B) the threats creating fear of physical injury, (C) the history of domestic violence between the persons involved, and (D) whether either person involved acted in self-defense.

(d) Notwithstanding paragraph (1) of subdivision (a), if a suspect commits an assault or battery upon a current or former spouse, fiancé, fiancée, a current or former cohabitant as defined in Section 6209 of the Family Code, a person with whom the suspect currently is having or has previously had an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243, a person with whom the suspect has parented a child, or is presumed to have parented a child pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code), a child of the suspect, a child whose parentage by the suspect is the subject of an action under the Uniform Parentage Act, a child of a person in one of the above categories, any other person related to the suspect by consanguinity or affinity within the second degree, or any person who is 65 years of age or older and who is related to the suspect by blood or legal guardianship, a peace officer may arrest the suspect without a warrant where both of the following circumstances apply:
(1) The peace officer has probable cause to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.
(2) The peace officer makes the arrest as soon as probable cause arises to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.

(e) In addition to the authority to make an arrest without a warrant pursuant to paragraphs (1) and (3) of subdivision (a), a peace officer may, without a warrant, arrest a person for a violation of Section 25400 when all of the following apply:
(1) The officer has reasonable cause to believe that the person to be arrested has committed the violation of Section 25400.
(2) The violation of Section 25400 occurred within an airport, as defined in Section 21013 of the Public Utilities Code, in an area to which access is controlled by the inspection of persons and property.
(3) The peace officer makes the arrest as soon as reasonable cause arises to believe that the person to be arrested has committed the violation of Section 25400.

(f) In addition to the authority to make an arrest without a warrant pursuant to paragraphs (1) and (3) of subdivision (a), a peace officer may, without a warrant, arrest a person for a violation of Section 459.5 when the violation was not committed in the officer’s presence if all of the following conditions are met:
(1) The officer has probable cause to believe the person committed the violation.
(2) The arrest is made without undue delay after the violation.
(3) Any of the following takes place:
(A) The officer obtains a sworn statement from a person who witnessed the person to be arrested committing the alleged violation.
(B) The officer observes video footage that shows the person to be arrested committing the alleged violation.
(C) The person to be arrested possesses a quantity of goods inconsistent with personal use and the goods bear security devices affixed by a retailer that would customarily be removed upon purchase.
(D) The person to be arrested confesses to the alleged violation to the arresting officer.

Legal Analysis

California Penal Code 836 PC spells out all the six situations where police may arrest suspects without a warrant:

1. The officer has probable cause to believe the suspect committed a crime in the officer’s presence;
2. The suspect committed a felony whether or not in the officer’s presence;
3. The officer has probable cause to believe the suspect committed a felony;
4. The officer has probable cause to believe the suspect violated a domestic violence restraining order;
5. The officer has probable cause to believe the suspect committed assault or battery on a family member, current or former dating partner or his/her child, or a person 65 or older; and/or
6. The officer has reasonable cause to believe the suspect carried a concealed firearm in an airport area where the inspection of persons and property controls access.¹

When police are called out to a domestic dispute where there are mutual protective orders, the peace officer must make reasonable efforts to identify the dominant aggressor and arrest him/her. When determining who is the dominant aggressor, the police will consider:

• the intent of the law to protect victims of domestic violence from continuing abuse,
• the threats creating fear of physical injury,
• the history of domestic violence between the persons involved, and
• whether either person involved acted in self-defense.²

PC 836 also requires police to call out to certain domestic violence disputes where they decide not to arrest anyone to try to tell the purported victims that they can make a citizen’s arrest. Police should also advise these victims on how to make the citizen’s arrest safely.³

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Legal References