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  1. #11
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    Default Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati

    They can use the word Arrest how they wish, but the USSC said a Citation is not the functional equivalent of an arrest for 4th Amendment purposes. Also, Ohio case law, years prior, ruled the same.

  2. #12
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    Default Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati

    Yeah, it's pretty much a matter of context when we use the term, "Arrest".
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  3. #13
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    Default Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati

    Quote Quoting RJR
    View Post
    They can use the word Arrest how they wish, but the USSC said a Citation is not the functional equivalent of an arrest for 4th Amendment purposes. Also, Ohio case law, years prior, ruled the same.
    First, we are discussing arrests in California not Ohio, and Ohio case lase law is not relevant in California. With me, if you want to convince me as to the legitimacy of your argument, you are going to have to provide case law citations you are referring to otherwise they are meaningless.

    Second, again, you have missed the point. The issuance of the citation (Notice to Appear) does not constitute an arrest. The actual arrest happens before the Notice to Appear is issued.

    An arrest is made when there is probable cause the facts support an objective belief that the person to be arrested has committed a crime (Traffic infractions in California are criminal in nature). An arrest requires taking someone into custody, against that person's will, in order to prosecute. An arrest does not mean the person is actually taken to jail. In traffic stop, the driver is technically under arrest because the driver is not free to leave until they sign the Notice to Appear. If the driver refuses to sign the Notice to Appear, they will be taken to jail (CVC 40302(b)).
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  4. #14
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    Default Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati

    Quote Quoting Jim Kozlovich
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    First, we are discussing arrests in California not Ohio, and Ohio case lase law is not relevant in California. With me, if you want to convince me as to the legitimacy of your argument, you are going to have to provide case law citations you are referring to otherwise they are meaningless.
    My point was, and that word "Arrest" is subject to context, as Carl said. Knowles states a Citation is not the = of Arrest, as in "Search incident to citation"and "Search incident to arrest".

    https://supreme.justia.com/cases/federal/us/525/113/

    Second, again, you have missed the point. The issuance of the citation (Notice to Appear) does not constitute an arrest. The actual arrest happens before the Notice to Appear is issued.

    An arrest is made when there is probable cause the facts support an objective belief that the person to be arrested has committed a crime (Traffic infractions in California are criminal in nature). An arrest requires taking someone into custody, against that person's will, in order to prosecute. An arrest does not mean the person is actually taken to jail. In traffic stop, the driver is technically under arrest because the driver is not free to leave until they sign the Notice to Appear. If the driver refuses to sign the Notice to Appear, they will be taken to jail (CVC 40302(b)).
    My problem is if CA terms Arrest as detainment prior to the issuance of a citation. All states permit the issuance of a citation in lieu of arrest for non felonies. That's my point.

    Per the USSC Arrest in the traditional sense means transporting a person to jail/court to answer for a crime.

  5. #15
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    Default Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati

    Quote Quoting RJR
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    My problem is if CA terms Arrest as detainment prior to the issuance of a citation. All states permit the issuance of a citation in lieu of arrest for non felonies. That's my point.
    California considers traffic infractions criminal in nature however, several states consider traffic infractions as civil violations. The rules between criminal and civil actions differ greatly so you can't include "all states" when you refer to how they handle traffic citations.

    Quote Quoting RJR
    View Post
    Per the USSC Arrest in the traditional sense means transporting a person to jail/court to answer for a crime.
    What do you think will happen if, in California, you refuse to sign the citation? [HINT: see CVC 40302(b)] The Notice to Appear is simply releasing you on your own recognizance with your promise to appear at a later date.
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  6. #16
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    Default Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati

    Quote Quoting Jim Kozlovich
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    What do you think will happen if, in California, you refuse to sign the citation? [HINT: see CVC 40302(b)] The Notice to Appear is simply releasing you on your own recognizance with your promise to appear at a later date.
    The same in Ohio for a Minor Misdemeanor. An arrest in not permissable except for the following.

    http://codes.ohio.gov/orc/2935.26v1

    The problem I see with CA is, if one is considered "under arrest" then released on a promise to appear, could this happen?

    A motorist is pulled over for an offense. When he is detained is he "under arrest"?? If that is true, then a vehicle search is permissable, right? Then he is issued a citation in lieu of arrest. Can an officer use the arrest ruse to search every vehicle he stops? Just wondering!

  7. #17
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    Default Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati

    Quote Quoting RJR
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    A motorist is pulled over for an offense. When he is detained is he "under arrest"?? If that is true, then a vehicle search is permissable, right? Then he is issued a citation in lieu of arrest. Can an officer use the arrest ruse to search every vehicle he stops? Just wondering!
    That has been tried and dismissed in CA. We cannot conduct a search incident to arrest on a traffic infraction. Not to mention that the scope of any post-arrest search would be limited in scope, and tossing the whole car simply because of the arrest simply would not be permitted. (Am travelling right now on vacation, so not inclined to look up the authorities, but, this is a question that rises up from time to time among recruits and even academics.)
    **********
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    Seek justice,
    Love mercy,
    Walk humbly with your God

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  8. #18
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    Default Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati

    Thanks Carl, was just curious how that legally played out!

  9. #19
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    Default Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati

    Further (now that I have some time):

    From CPOLS ...

    However, neither the issuance of a citation nor probable cause for a cite-and-release offense is enough to invoke the search-incident-to-arrest exception. (Macabeo (2016) 1 Cal.5th 1206; In re D.W. (2017) 13 Cal.App.5th 1249.) The reason is that the justifications for the exception--officer safety, preserving evidence, and preventing escape--are not present when the arrestee will not be taken into custody.
    Example: Macabeo rolled through a stop sign on his bike in a residential neighborhood at 1:40 a.m. in violation of Vehicle Code section 22450. After giving confusing answers about his probation status, Macabeo consented to his "stuff" being removed from his pockets. One of the officers examined the contents of the cell phone taken out of Macabeo's pocket and found images of underage girls, and Macabeo was placed under arrest. HELD: The existence of a cite-and-release traffic infraction--without a custodial arrest--did not provide a basis to conduct a search incident to arrest. (Macabeo (2016) 1 Cal.5th 1206).
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  10. #20
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    Ohio
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    Default Re: Ticket for Impeading Traffic Given Without Law Enforcement Seeing Alleged Violati

    Thanks again Carl, "exactly" what I wanted to know, you are the Man.

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