Return to CALJIC Part 9-12 – Contents
F 9.24 n1 “Lawful Arrest” Defined: Exigent Circumstances, Consent, Knock-Notice Vis a Vis Arrest In Home (PC 69, PC 148(b), PC 148(c), PC 148(d), PC 243(c), PC 243.1, PC 245(b), PC 245(c), PC 245.2, PC 245.3, PC 245.5, PC 417(c)).
In People v. Wilkins (93) 14 CA4th 761, 777, 779-80 [17 CR2d 743], the court held that when appropriate under the facts, the court must supplement the CALJIC instruction on lawful arrest (CJ 9.24, CJ 16.104) to include instruction upon the principles of exigent circumstances, consent, and the knock-notice requirements of PC 844.
Warrantless Searches/Arrests Within The Home
Are Per Se Unreasonable Absent Exigent Circumstances
(PC 69, PC 148(b), PC 148(c), PC 148(d), PC 243(c),
PC 243.1, PC 245(b), PC 245(c), PC 245.2,
PC 245.3, PC 245.5, PC 417(c))
Add the following to CJ 9.24 when appropriate:
A warrantless [search] [arrest] within the home is per se unreasonable in the absence of exigent circumstances.
Points and Authorities
CJ 9.24 omits the principle that warrantless searches/arrests within the home are per se unreasonable in the absence of exigent circumstances. It erroneously represents to the jury the boundaries of a lawful arrest. (See e.g., People v. Ramey (76) 16 C3d 263, 275-76 [127 CR 629].) The issue of reasonable cause for an arrest is a question of fact for jury determination. (People v. Curtis (69) 70 C2d 347, 359 [74 CR 713]; see also People v. Wilkins (93) 14 CA4th 761, 777, 779-80 [17 CR2d 743].) Hence, the jury should be instructed upon this principle.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-569.]
Apparent Effort To Avoid Police Officer Does Not Alone Justify Detention
*Add to CJ 9.24 when appropriate:
See FORECITE F 16.108b.