Lawful arrest?

[Piperca]

What is the name of your state? California

A victim files a crime report, let's say a felony charge of embezzlement, with a police agency. The detective investigates the crime, during which, the victim advises the detective he/she is non-desirous of prosecution and has worked out a deal with the suspect to make restitution. The detective continues his/her investigation and gains enough evidence to show the suspect committed the crime and, regardless of the victim's position of being non-desirous, makes an arrest.

Is this a lawful arrest? Can the detective be civilly liable for making such an arrest?What is the name of your state?

 

[moburkes]

Yes, its lawful. What did you think would happen? That the police would investigate for free, so that's why the report was filed?

 

[tranquility]

To be lawful, an arrest must be supported by Probable Cause. From the description, there is clear probable cause for arrest. Yes, the arrest is lawful.

 

[CdwJava]

Contrary to popular belief, victims do not press charges - the state does (through the DA). If the DA wants to go ahead even though the victim has worked out a deal to pay the victim back, then that is his or her prerogative.

- Carl

 

[Piperca]

To be lawful, an arrest must be supported by Probable Cause. From the description, there is clear probable cause for arrest. Yes, the arrest is lawful.

Yes, I understand the probable cause being there, which would make for a lawful arrest, but after the victim becomes non-desirous and accepting restitution, wouldn't this affect the outcome of the case? Does the detective have any obligation to take into consideration the victim's stance? By affecting the arrest after possessing this knowledge, would the detective expose him/herself to any civil liability?

Just to clarify; this is a little healthy discussion that a colleague and I are having and is purely hypothetical.

 

[Piperca]

Contrary to popular belief, victims do not press charges - the state does (through the DA). If the DA wants to go ahead even though the victim has worked out a deal to pay the victim back, then that is his or her prerogative.

- Carl

Thanks Carl!

 

[CdwJava]

Yes, I understand the probable cause being there, which would make for a lawful arrest, but after the victim becomes non-desirous and accepting restitution, wouldn't this affect the outcome of the case?

In theory? No. If the crime occurred, it occurred. It woul dbe sort of like if I shot you because i was angry with you ... even if you later decided you forgave me and I paid your medical bills, the fact remained that I shot you and I committed a felony.

From a practical point of view, it makes things a little tougher in court when the victim does not want anything done about it. however, absent court there is no way to compel the suspect from paying it back. Also, the suspect may have priors for this sort of thing and the DA may want to put him away because of his history.

Does the detective have any obligation to take into consideration the victim's stance?

No.

By affecting the arrest after possessing this knowledge, would the detective expose him/herself to any civil liability?

None at all ... and note, I am the supervisor for my agency's Investigations Division.

- Carl

 

[Piperca]

Thanks Carl!

I understand the "theoretical" side, but I was interested in the prosecution of the case. Although the crime HAS been committed (I'm not doubting that), absent priors, I see no benefit to pursue the case further. I find it hard to believe that a DDA would waste their time in an attemtp to pursue prosecution when the victim is non-desirous. I'm glad to hear that the element of civil liability is not an issue.

I thank you for your input.

 

[CdwJava]

I understand the "theoretical" side, but I was interested in the prosecution of the case. Although the crime HAS been committed (I'm not doubting that), absent priors, I see no benefit to pursue the case further.

Whether you see any benefit or not is irrelevent. Apparently the DA sees some need or benefit to do so and it is HIS (or her) opinion that counts.

I find it hard to believe that a DDA would waste their time in an attemtp to pursue prosecution when the victim is non-desirous. I'm glad to hear that the element of civil liability is not an issue.

There are a number of crimes where the victim does not wish to pursue action yet the DA still pursues it. There could be a number of reasons why he is prosecuting it, and you may not be privy to that reasoning.

- Carl

 

[Piperca]

There are a number of crimes where the victim does not wish to pursue action yet the DA still pursues it. There could be a number of reasons why he is prosecuting it, and you may not be privy to that reasoning.

- Carl

I am familiar with what you're talking about and that's why I referenced a paper crime. I understand that certain elements must be met for the crime to be filed and, sometimes, without a willing victim, it makes it near impossible to file the case. I guess my question might have been too general/broad and not specific enough in content.

I also understand that once the case is filed with the DA's office it is out of the detectives hands. I feel that it is the duty of the detective to evaluate each case and confer with the DDA in the event there may be a questionable filing. Forging forward and making an arrest, when there is likely no chance of prosecution, is somewhat irresponsible.

Being a supervisor, I'm sure you'd be a little frustrated to see your detectives continue an investigation on a case that does not have a willing victim and, although a felony, a paper crime. In essence; not only would the detective be wasting valuable department time, but he/she wouldn't be too popular at the DA's office.

Thanks for the stimulation!

 

[CdwJava]

I am familiar with what you're talking about and that's why I referenced a paper crime. I understand that certain elements must be met for the crime to be filed and, sometimes, without a willing victim, it makes it near impossible to file the case.

There are ways to compel such cooperation ... subpoenas work quite well.

I feel that it is the duty of the detective to evaluate each case and confer with the DDA in the event there may be a questionable filing. Forging forward and making an arrest, when there is likely no chance of prosecution, is somewhat irresponsible.

Most the detectives know the local DA's office and what they are willin gto file on. But, since you are not privy to the officer's thought process, you have no idea if there was something else that came into play in the decision.

Being a supervisor, I'm sure you'd be a little frustrated to see your detectives continue an investigation on a case that does not have a willing victim and, although a felony, a paper crime.

Not really. It depends on the circumstances. Sometimes we find a suspect who has gotten away with this stuff before, or we suspect of prior incidents, and we find that the current crime is a good way to go after the guy and stop the offense.

Crooks are often willin gto pay up once they've been caught. However, it does nothing to prevent future crimes ... he will just be smarter.

Most everyone is contrite when they are caught. Fortunately, he is not being allowed to get away with it.

In essence; not only would the detective be wasting valuable department time, but he/she wouldn't be too popular at the DA's office.

It depends on the DA's office. And it's only wasting department time if the case cannot go anywhere.

- Carl

 

[Piperca]

Carl, all good points! However, I think we're embellishing on the original question. There can always be extenuating circumstances, but the scenario I spoke of, on face value, would not require such scrutiny. Yes, if dealing with a repeat offender or an individual that has shown a pattern of such behavior, but has not been apprehended.

I think what this boils down to is an individual detective's interpretation of what is worth pursuing, with his/her knowledge of the demeanor of the DA's office when faced with such cases.

I'll leave you with one more; an officer responds to a petty theft, which has just occurred. The 911 call is made by a third party. The victim, a transient, tells the officers she only wants her property returned to her, a bag of clothes, but does not desire prosecution. An officer locates the suspect, who is also a transient, in possession of the bag. The bag of clothing is returned to the victim. The suspect is arrested for possession of stolen property, a felony ...

 

[CdwJava]

There can always be extenuating circumstances, but the scenario I spoke of, on face value, would not require such scrutiny.

Then the simple answer is that there is nothing unlawful or improper about the officer's continued investigation of the crime and the arrest of the perpetrator with probable cause.

I think what this boils down to is an individual detective's interpretation of what is worth pursuing, with his/her knowledge of the demeanor of the DA's office when faced with such cases.

To some degree, yes. However, further investigation can also be prompted or curtailed by the detective's superiors or even the DA's office. It is not entirely at his discretion.

I'll leave you with one more; an officer responds to a petty theft, which has just occurred. The 911 call is made by a third party. The victim, a transient, tells the officers she only wants her property returned to her, a bag of clothes, but does not desire prosecution. An officer locates the suspect, who is also a transient, in possession of the bag. The bag of clothing is returned to the victim. The suspect is arrested for possession of stolen property, a felony ...

Couldn't happen ... legally. PC 496 cannot be applied to possession by the thief of property he or she had just stolen. In the case of a petty theft (PC 484/488 - a misdemeanor) I do not know of a DA that would prosecute without a victim. Plus, since the theft did not occur in the officer's presence he would need a citizen's arrest (aka private person's arrest pursuant to PC 837) to effect the arrest.

- Carl

 

[Zigner]

Thanks Carl!

I understand the "theoretical" side, but I was interested in the prosecution of the case. Although the crime HAS been committed (I'm not doubting that), absent priors, I see no benefit to pursue the case further. I find it hard to believe that a DDA would waste their time in an attemtp to pursue prosecution when the victim is non-desirous. I'm glad to hear that the element of civil liability is not an issue.

I thank you for your input.

The DA represents the people. Not the "victim". It is in the people's interest to prevent crimes such as this. (ok, I'm being a bit idealistic, considering the politics that are often involved).