The Search & Seizure Show

What is the "stale misdemeanor rule"?


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Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor with Blue to Gold law enforcement training, bringing you another roadside chat from the studio. Let's get right into this. This question comes from California, and the officer is asking about the stale misdemeanor rule. So I guess the question is, is, what is the stale misdemeanor rule? Okay, I'm gonna give you a scenario to apply to, all right. The stale misdemeanor rule is a common law doctrine, that essentially means that if a crime was committed within the officer's presence, and he or she could arrest that person right then and there, right, but yet waits, and doesn't arrest and then arrest sometime down the road, let's say the next day, next week, whatever that makes that arrest. courts have held that that is a stale arrest, it's a still misdemeanor, and the appropriate response is not to arrest them anymore. But to submit a warrant request, or give them a citation and kick them loose. So the first thing is this stale misdemeanor rule is not really alive. And well, in many states. It is a live in California, but it's a very the case all on this doctrine is very limited. And the idea behind it is that, you know, we don't want this threat of arrest, hanging over people's heads that simply commit a misdemeanor and the officer's presence. And then, you know, because you have a year in a day, usually the file, right, the file the charges, we don't want this hanging over the person's head forever. So like, if you saw a person breaching the peace, right, disorderly conduct, let's just go with that disorderly conduct on Saturday, and you go up to them and say, hey, you know, knock it off, right? Or, or you don't do anything? And then you don't, you know, and then the next week, you see the same guy. And you decide just to arrest them for that disorderly conduct happened last week, the courts don't see that being legitimate for a misdemeanor that you didn't arrest for before. Okay, so there it is. It's, it's, again, a very rarely used doctrine in courts. But let's apply it to some facts. So my officer friend here says, Look, cops investigated domestic, right. And the husband is not home, he took off on foot, but we have probable cause. So the officer on that shift, writes a PC declaration for the husband, they handed off to the next shift and say, Hey, you can find them. Here you go, here's the, you know, here's the PC declaration, it's all ready to go. You can book them in the next shift finds them or the next morning, they find him, they then arrest him. Right. And we go to court. Are was that a still misdemeanor?

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The Search & Seizure ShowBy Anthony Bandiero

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