Arrest, Search, Seizure, Warrant Separating charges at time of arrest

[mightymoose]

I was debating this with a supervisor today, and since I am not the supervisor I figure I am probably wrong, but I have since found that his reasoning is also wrong, although he may ultimately still be right.

The topic was whether at the time of arrest charges against a suspect could be separated into different cases. Certain things naturally go with each other and it would make no sense to separate them, however our dispute was focused more around drugs. For instance, if a suspect were arrested for burglary, domestic violence, or just about anything that is NOT drug related, and in the course of that arrest and investigation the suspect was found to be under the influence, can the arresting officer draw two separate case numbers and submit the burglary (or other) offense to the District Attorney separately from the charge of being under the influence? Or, must all charges be lumped together into the same case for a single arrest?

The question arose because of how our District Attorney handles cases for being under the influence. Generally, the case gets rejected immediately upon receipt because it takes a few weeks to get lab results back on blood/urine samples. After the lab results come in the DA will then file the charge.

The problem is here- if I have my burglary and drug charge on the same case and my suspect does not waive time, then we may not have our lab results in time and will have to dismiss the charge. Also, if the suspect is held and the DA sends the case back pending the lab results, my suspect might get released.

However, if I were to send the two charges to the DA independently then one could proceed without the other. The drug charge is totally separate from the other charge even if the suspect might try to use a defense of being high. Even if the drug charge was not submitted at all then the suspect would still make that argument in defense.

Since these would really be two separate offenses, even if the suspect was high at the time of the crime, is it allowable to separate them from the get-go in order to allow for the one to proceed while waiting for my lab results on the other? In most cases one would catch up to the other and would likely get combined, but keeping them separate would allow for one case to be filed and my suspect to be held while the other is pending.

That is it in a nutshell. The supervisor says no- they must go together. In fact he argues that the drug offense should not be included so as to not provide the suspect with a defense... but I believe they would still use that defense anyway. He also argued that the Harvey Waiver is in play (People v. Harvey (1979) 25 Cal.3d 754, 758), saying that if one case was decided before the other then the second one would be unable to proceed since the arrest occurred at the same time as the matter in the first case... a sort of double jeopardy argument. I don't buy it.

The drug defense would be made with or without the additional charges, so I may as well add it, and it is a lousy excuse anyway. I was unfamiliar with Harvey and looked it up... I see that it has more to do with charges being dismissed and not allowing them to be considered in sentencing, which really doesn't fit the scenario... however he may have simply been citing the wrong case if he had something else on his mind. It seems to me that one case could easily proceed without the other- though for the sake of simplicity they would certainly be combined eventually. The whole point is to separate the charges to allow the DA to file charges on one case while pending the other so that my suspect doesn't walk on a lame technicality... so long as the charges are unrelated and not some kind of included offense of the other.

Am I wrong to think that a charge of being under the influence is totally separate from a burglary/assault/stolen vehicle/whatever, even if the suspect was high at the time of the crime and wants to use that as a lousy defense? Surely he was high beforehand, and well after....

I'm sure my best answer will come from my DA's office, but I can't reach them at 3am.

 

[army judge]

Moose, I can tell you how we do it in my county in Texas.
As you can imagine, Dallas, San Antonio, Houston, Austin, and Ft. Worth; being much more populous, each do it differently.

The general rule is, if in doubt, the on call DA is rousted out of bed.
This is only for major crimes (murder, attempted murder, aggravated crimes, rapes, kidnappings, most suspicious deaths, etc...)

If there was an arrest, such as you suggest, they are usually split into one, two, three (or more) charges.
I'm told to lessen the chance of a speedy trial problem.
Thus, lab and medical results don't delay.

Most major crimes (serious felonies) are charged not by complaint, rather by indictment.
The grand jury is used, if at all possible.
Of course, should an officer observe and interrupt a serious crime in progress, the officer can arrest and charge by complaint and warrant.

I don't think there is a right or wrong in all of this.
It depends on the DA and the state's court structure.
You know Texas relies a great deal on Justice of the Peace (and to some extent Municipal) Courts.

Good thought provoking question.

 

[CdwJava]

I was debating this with a supervisor today, and since I am not the supervisor I figure I am probably wrong, but I have since found that his reasoning is also wrong, although he may ultimately still be right.

Well, being one o' them supervisors, we're right even when we're wrong.

For instance, if a suspect were arrested for burglary, domestic violence, or just about anything that is NOT drug related, and in the course of that arrest and investigation the suspect was found to be under the influence, can the arresting officer draw two separate case numbers and submit the burglary (or other) offense to the District Attorney separately from the charge of being under the influence? Or, must all charges be lumped together into the same case for a single arrest?

If the suspect of the burglary was under the influence we would put both charges on the same case. There is little practical reason to do otherwise.

This may be more a matter of policy than law. For instance, if there were multiple burglary victims the policy in my current agency is to assign ONE case number. Where I used to work in So. Cal. we would have pulled one case number per victim - this was a records thing. Assigning multiple case numbers also effects UCR reporting as each CASE would be counted as a separate incident. One case number, one incident. So, while a burglary of $10,000 worth of tools from three homes might be ONE larceny worth $10,000 in my current agency, where I was in San Diego it would have been three separate offenses worth three separate values totaling $10,000.

There is no law that I am aware of that mandates the assignation of case numbers.

Oh, and it is typically a good idea to pull a separate number for marijuana arrests because 11357(b) are PURGED (i.e. destroyed) after 2 years. So, if you have a case with 11357(b) and your burglary on it, you may be forced to destroy that report! But, again, different policies ... here we do not separate them and in So. Cal. we had to pull (and write) two reports ... which is why very few officers busted people for possession of pot - especially when we were handwriting our reports).

The question arose because of how our District Attorney handles cases for being under the influence. Generally, the case gets rejected immediately upon receipt because it takes a few weeks to get lab results back on blood/urine samples. After the lab results come in the DA will then file the charge.

Again, that policy issue but is a good point. The DA can choose to file as two separate matters, or hold off on the whole thing pending the test results. Mine would hold off. Others might file one and not the other. Your golden if the suspect has been released prior to arraignment. But, if he is arraigned and refuses to waive time, the DA may be forced to drop the under-the-influence charge in favor of the burglary charge.

However, if I were to send the two charges to the DA independently then one could proceed without the other. The drug charge is totally separate from the other charge even if the suspect might try to use a defense of being high. Even if the drug charge was not submitted at all then the suspect would still make that argument in defense.

This would be a good one to run past your DA, and it is an excellent point.

However, if this has not been an issue in your neck of the woods, it may well be that this is not an issue because of how the DA might choose to file them ... or, everyone waives time.

That is it in a nutshell. The supervisor says no- they must go together. In fact he argues that the drug offense should not be included so as to not provide the suspect with a defense... but I believe they would still use that defense anyway.

While the Penal Code specifically prohibits voluntary intoxication (drugs or alcohol) as a defense to the knowing commission of a crime, some prosecutors - like mine - give it mitigating weight. Unless the underlying arrest leading to a search, etc. included a public intoxication or under the influence beef, we will often NOT charge for it if we have a more serious offense. That way the DA doesn't get the easy out, a plea to Prop 36 diversion is not on the table (initially), and the defense has a harder time trying to make a sympathy plea to a jury that his client was high and out of his mind at the time.

He also argued that the Harvey Waiver is in play (People v. Harvey (1979) 25 Cal.3d 754, 758), saying that if one case was decided before the other then the second one would be unable to proceed since the arrest occurred at the same time as the matter in the first case... a sort of double jeopardy argument. I don't buy it.

I know what you are talking about, but this is not concerning Harvey. I can't recall the actual case or statute off hand, but he has a point if one lesser matter in the same incident is settled prior to arraignment on the greater counts.

If the DA were dumb enough to allow a plea to go through that permitted a plea to the lesser offense that is part of the same incident as some more serious allegations, then the defendant could potentially be safe from any future offenses that are intrinsically tied to the incident. This is why you have to be careful about issuing a citation for an offense that is a lesser offense included with mores serious ones. If I issue a citation for battery and "long form" a sexual battery to the DA as part of the same incident, then the guy might run to the courthouse and plead out on the battery before the sexual battery can get added. This sort of thing is rare, but I have seen it happen before.

The drug defense would be made with or without the additional charges, so I may as well add it, and it is a lousy excuse anyway. I was unfamiliar with Harvey and looked it up... I see that it has more to do with charges being dismissed and not allowing them to be considered in sentencing, which really doesn't fit the scenario...

You are correct.

I suspect the supervisor had the theory correct, just the case law wrong.

Am I wrong to think that a charge of being under the influence is totally separate from a burglary/assault/stolen vehicle/whatever, even if the suspect was high at the time of the crime and wants to use that as a lousy defense? Surely he was high beforehand, and well after....

This is largely a matter of policy and not the law. It will depend on how your DA wants to see it, and what your agency says you do in these situations.

I have worked for three agencies (four, if you count my internship with San Jose PD many moons ago) and each have had different policies with regards to crime report numbering and crime type submissions. About all you can do is go with what your agency says is the policy and practice. And, quite frankly, what your supervisor says, goes ... even if you disagree with it. If HE is wrong, HE suffers the slings and arrows later on. But, you can also work quietly to address the matter by, perhaps, obtaining an opinion or preference from the DA and then working through the chain of command to modify policy to reflect whatever relevant issues might be involved.

 

[john39]

never mind...

 

[CdwJava]

Can you choose not to charge for it,although you put it in your report ?

Yes. This is what we often do with marijuana violations, and even lesser included violations such as crossing into the opposite lane of traffic when the driver is ultimately arrested for DUI. I recall a case in San Diego where the driver was cited for speed and crossing the center line and was also arrested for DUI. He quickly went down and pled guilty to the traffic infractions and the DA was unable to proceed any further as a result. I understand there are ways to get around that, but it is never a good idea to make your DA have to work so hard for something that could have been addressed in another way.

If I assumed right,and they have duty to complete accurate,detailed and factual reports,wouldn't that also mean that nothing should ever be omitted from the report ?

A knowingly relevant fact should not be omitted, but not all facts are relevant. For instance, the wind speed and cloud coverage are facts, but they are not generally relevant to a crime so they would not be in most reports. Likewise, the color of the defendant's wallet or which hand he withdrew his wallet might also be facts but might not be relevant. (NOTE: these are all issues that I have had defense attorneys try to raise at trial in cases of mine where they were vainly attempting to raise reasonable doubt on the quality of my investigation ... the courts saw right through those attempts, of course.)

If yes,and shouldn't be omitted,and wasn't omitted,and it was in the report,can you choose not to charge for it?

Yep. It could be mentioned in the report and no charges need be requested. The DA can choose to add or modify the charges as he or she sees fit, of course.

 

[john39]

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