The ‘Formalities of Making an Arrest’ in California

Police procedurals have made the Miranda warnings so well-known that most Americans can recite them by rote. But there is a long-standing advisal requirement in California law that should come before many Miranda "warnings" are recited. Yet, that provision is little known to judges, criminal defense attorneys and prosecutors, and, most critically, the police. That law is Penal Code Section 841 -- on the books since 1872 and amended in 1957 and1961. Its relevance to recent events connected to controversial police use of force actions across the nation could not be clearer or more compelling.

Section 841, quaintly titled "Formalities of Making an Arrest," is brief and clear. It says:

"The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape.

"The person making the arrest must, on request of the person he is arresting, inform the latter of the offense for which he is being arrested."

The 1957 amendment added the words "the person making the arrest has reasonable cause to believe that" at beginning of the "engaged in the commission of the crime" exception, and added the words "the person to be arrested" preceding "is pursued" near the end of the exception in the first paragraph. The 1961 amendment added the second paragraph.

Thus, Section 841 has three informational requirements a peace officer making an arrest must satisfy when arresting a person not engaged in the commission of a crime, in hot pursuit or after an escape. The officer must inform the person being of:

1. The intention to arrest him,

2. The cause for the arrest, and

3. The authority to make it.

And, if the person being arresting asks, the officer must specify the offense for which the person is being arrested.

Over the years, the appellate courts, while rarely considering it, have held that at least some of the advisals required by Section 841 can be satisfied by facts and circumstances surrounding the arrest itself. For example, "authority to make" an arrest can be evident from the fact the officer is in uniform and wearing a badge, obviating the requirement for an explicit oral advisal. Likewise, notice of intention to make an arrest can be satisfied by the surrounding circumstances, satisfying the requirement of an explicit oral advisal. Lowry v. Standard Oil Co., 54 Cal. App. 2d 782 (1942).

It is not as if this is some empty, formalistic requirement. A significant affect arises when an officer attempts to arrest an individual without making the advisals, where required, and the person resists and is charged with resisting an officer by force or violence "in the performance of his or her lawful duties." Penal Code Sections 69 and 148. In such an instance, the officer is not engaged in the "lawful performance" by reason of the failure to comply with Section 841 and the "resisting" charge will be dismissed. Allen v. McCoy, 135 Cal. App. 500, 508 (1933).

This is all prelude to a recent decision handed down by Division 3 of the 2nd District Court of Appeal in Los Angeles on June 25. People v. Markel Anthony Barerra, B292303 ( unpublished). The facts in the Barrera case are hauntingly mundane.

On May 14, 2018, two L.A. County Sheriff's deputies, Ronald Sneed and Andrew Delarosa, were in uniform in a marked patrol car in a residential area of Palmdale. The deputies spotted Markel Barerra walking down the street and flicking glowing ashes from his cigarette onto the sidewalk, a violation of Vehicle Code Section 23111. They stopped their patrol car, got out and approached Barerra, who stopped to talk. After some casual conversation, the deputies requested identification from Barrera. Barrera said he didn't have identification on him, but told the deputies his name and birthdate.

Delarosa returned to the patrol car to run Barrera for warrants, while Sneed stayed on the sidewalk with him. Delarosa then said to Sneed, "1015," code for the existence of warrants. Sneed told Barrera to put his hands behind his back so he could be handcuffed. Barerra said, "no," and backed away. After a brief scuffle during which Barerra tried to run, the deputies got temporary control of Barrera, escorted him to the patrol car and bent him over the back of the car to handcuff him.

There, Barrera broke free. He flailed his right arm in the air and began to shout. Delarosa called for backup. Sneed twice warned Barrera he would tase him if he continued to fight, and then did tase him. Barrera fell to the ground on his stomach with his hands under his body. The deputies told Barrera to put his hands behind his back, but he did not comply and the deputies were concerned he could be armed and produce a weapon. Barrera started to rise and, ignoring orders to stay prone, Sneed shocked him again with the Taser, but he still managed to stand up. The deputies then tackled him to the ground as he started to run away. Sneed punched him three to four times just as back-up deputies arrived and the four deputies managed to handcuff and hobble Barrera and take him into custody. Sneed and Delarosa sustained minor injuries to their hands and knees.

Barrera testified in his own defense with a somewhat different version of the encounter. He testified the deputies never told him they were arresting him because he had warrants or for the Vehicle Code offense. He testified he thought they were going to search him and let him go. He testified he asked more than once why he was being arrested and was never told why.

The jury convicted Barrera of two counts of resisting arrest. He was sentenced to two, six-year terms under the Three Strikes Law and appealed, claiming the deputies failed to comply with Section 841. Barrera did admit that he had been arrested numerous times in the past and that he knew that Delarosa was running his name to see if it came back clear.

The appellate court found that Barrera knew of the deputies' authority to arrest him and had notice of their intention to do so based on Sneed telling him to put his hands behind his back, which was sufficient to convey an intent to make an arrest. The court devoted more attention to the "cause of the arrest" element. It concluded, "[b]ecause the arrest was initiated immediately after completion of the computer search, it was reasonably apparent [presumably to Barerra] that the search result was the cause of Barrera's arrest, and he was waiting to see if his name came back 'clear.'" The court went on to find that, given the intense scuffle, the deputies did not have a reasonable opportunity to inform Barrera that the cause for his arrest was the existence of warrants. Finally, responding to Barrera's insistence under oath that he asked why he was being arrested and was not told, a violation of the second paragraph of Section 841, the court concluded that substantial evidence supported the implicit conclusion by the jury in convicting him that he in fact did not ask why he was being arrested. His convictions were affirmed.

While not extraordinary or high profile and not published by the court, the decision handed down during an active national dialogue over police use of force, the Barerra case provides a timely reminder, and a perhaps a prescription for deescalating police-citizen encounters. The "Formalities of Making an Arrest," if followed more closely and consistently, may well be an age-old remedy in a time of national crisis. 