MAKING AN ARREST

THE SUSPECT

According to our legal system, a person is innocent until proven guilty. It is up to the court to decide if a person is guilty – not the police, not the district attorney, and not a private person. When a person is arrested, that person is called a suspect. The person is then considered a suspect until the court finds the person guilty or innocent. Therefore, do not refer to an arrested person as the “criminal,” “offender,” “robber,” “murderer,” “burglar,” or by any other term which implies guilt. You can say “he,” “she,” “they,” “this person,” or “the suspect” since none of these terms imply guilt.

MAKING AN ARREST

If you should happen to be in a situation where a citizen arrest is called for, you should tell the person that he/she is under citizen’s arrest and what the charges are, and your authority to make the citizen’s arrest. Once you say “You are under arrest for burglary,” the suspect may or may not cooperate. If the suspect resists and tries to escape, you must then decide whether or not to use reasonable force. You may ask as many persons as you think necessary to help you in making the arrest.

USE OF FORCE IN AN ARREST

If a suspect resists arrest, you are allowed to use reasonable force to subdue the suspect. Reasonable force is that degree of force that is not excessive and is appropriate in protecting oneself or one’s property. If the suspect submits willingly, no force is necessary. If a suspect should resist arrest, remember that the only force allowed is that which is reasonable and necessary to overcome the resistance.

WHAT IS EXCESSIVE FORCE?

Examples of excessive force include knocking unconscious an unarmed suspect when he is only trying to leave the scene. Handcuffs may be used on persons who have resisted or on suspects you think may be trying to resist or escape.

WHAT IS DETAINMENT?

A person who voluntarily responds to questioning and is not actually restrained (i.e., free to go at any time) is considered to be detained. A person may be detained by the police for further questioning in an

investigation, and that person is not necessarily under arrest. The police have the authority to detain a person against his/her will and still not arrest that person. Security guard/proprietary private security officers do not have the authority to detain a person against their will except under Penal Code Section 490.5, which is covered in detail further on in the study manual. (MERCHANTS PRIVILEGE RULE, PART L)

WHEN IS A SUSPECT CONSIDERED TO BE UNDER ARREST?

It should be clear to the suspect that he/she is under arrest after you have told the suspect of your intention, cause, and authority to arrest him/her. However, there are also other actions that may make a suspect feel he/she is under arrest. If, because of your uniform, badge, hat, or verbal actions, the suspect concludes he/she must answer your questions or is not free to walk away, he/she may justifiably claim he was under arrest.

WHAT IS THE RIGHT WAY TO APPROACH SUSPECTS?

Guilt by association is not a lawful way to make arrests. Let’s look at an example:

It is 11:00 p.m. and a security guard/proprietary private security officer is making his/her rounds of the plant when he finds Gate No. 5 open. There are pry marks on the chain that normally holds the gate shut. About 50 yards from the gate is an old pickup truck parked by the side of the road. The hood is up, and two men are bent over looking at the motor. The proprietary security officer proprietary walks over and says, “All right, you guys. What are you doing here?” One of the men responds by saying, “What’s it to you pal?” The security guard/proprietary private security officer answers angrily, “Look, you better tell me what you’re doing here or you’re in trouble!” Neither man replies. One of them gets into the driver’s seat and turns over the engine. The proprietary security officer proprietary then asks, “Didn’t you hear what I said?” The other man says, “Leave us alone.” The proprietary security officer proprietary moves to the front of the truck and grabs the man’s arm, stating, “You guys aren’t going anywhere until you answer a few questions.”

ANALYSIS

Finding the gate open with pry marks on the chain does not necessarily mean that a crime has been committed. There are a number of possible explanations short of forced entry. Next, there is nothing to tie the two men to forcing the gate open except that their truck was parked nearby. The security guard/proprietary private security officer cannot demand that the men answer his questions. The security guard/proprietary private security officer’s attitude, tone of voice, uniform, and badge could easily have made the men believe that they were being arrested. If the security guard/proprietary private security officer refused to let them leave and if it turned out they had nothing to do with forcing the gate, the men could sue the security guard/proprietary private security officer for false arrest and for battery, because the security guard/proprietary private security officer grabbed the man’s arm.

WHAT THE SECURITY GUARD/PROPRIETARY PRIVATE SECURITY OFFICER SHOULD HAVE DONE

First, he/she should have examined the condition of the gate carefully, recorded the license number of the truck, and obtained a description of the two men. Next, the security guard/proprietary private security officer should have secured the gate and reported its condition to his/her supervisor, being careful to watch for other suspicious activity. The security guard/proprietary private security officer may or may not decide to talk with the two men. He might enter into a friendlier conversation with them by asking if they had seen anyone near the gate. If they are not cooperative, there is nothing the security guard/proprietary private security officer can do except observe closely. The security guard/proprietary private security officer should never touch another person except when reasonable force is necessary when placing that person under citizen’s arrest.

The above direction is a suggestion and is at the discretion of the employer. Some employers may want their security personnel to be more proactive as long as they stay within the parameters of what is lawful regarding private persons (citizen’s) arrest.

A BETTER APPROACH

Remember the part about friendly conversation? Although you cannot demand answers from a person, you can always engage them in casual conversation.

Here is a better approach:

“Hi! Got car troubles?” One of the men replies, “Yeah! This darn thing shorts out every once in a while.” The security guard/proprietary private security officer then asks, “Say, have you seen anybody around the gate?”

The men reply, “No, we haven’t seen anyone except you.” The security guard/proprietary private security officer says, “How long have you been here?” “Oh, maybe five minutes.” “Well, thanks for your help. If you need to call for road service, I can make the call for you.” “Thanks anyway, but we’ll get it going.” The security guard/proprietary private security officer then walks away.

The security guard/proprietary private security officer may not have gotten much information, but at least he/she had a chance to observe each man closely and check their activities without running the risk of bad public relations or a false citizen’s arrest suit.