{"id":7530,"date":"2023-10-27T15:35:48","date_gmt":"2023-10-27T15:35:48","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=7530"},"modified":"2026-09-19T01:29:22","modified_gmt":"2026-09-19T08:29:22","slug":"the-stale-misdemeanor-rule","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=7530","title":{"rendered":"The Stale Misdemeanor Rule"},"content":{"rendered":"

What is the stale misdemeanor rule?<\/h2>\n

The stale misdemeanor rule is a common law doctrine.\u00a0 It essentially means that a crime was committed within the officer’s presence, and he or she could arrest that person right then and there, but waits, and doesn’t arrest yet.\u00a0 If he then arrests sometime down the road, let’s say on the next day or the next week, courts have held that it is now a stale arrest<\/a>.<\/p>\n

It’s a stale misdemeanor, and the appropriate response is not to arrest them anymore, but to submit a warrant request, or give them a citation and kick them loose.<\/p>\n

So first; this stale misdemeanor rule is not really alive in many states.\u00a0 It is alive in California, but it’s very limited.<\/p>\n

The idea behind it is that we don’t want this threat of arrest hanging over people’s heads. There was simply a misdemeanor committed in the officer’s presence.\u00a0 Because you have a year and a day, usually to file the charges, we don’t want this hanging over the person’s head forever.<\/p>\n

Let\u2019s say you saw a person breaching the peace, like disorderly conduct on a Saturday, and you go up to them and say, \u201cHey! Knock it off!\u201d\u00a0 Or you don’t do anything.\u00a0 And then, the next week, you see the same guy and you decide to arrest him for that disorderly conduct that happened last week.\u00a0 The courts don’t see that being legitimate for a misdemeanor that you didn’t arrest for before.\u00a0 So, there it is.\u00a0 It\u2019s a very rarely used doctrine in courts.<\/p>\n

Is a next-shift domestic arrest a stale misdemeanor?<\/h2>\n

Let’s apply it to some facts.\u00a0 My officer friend gives the following scenario.\u00a0 The cops investigated a domestic.\u00a0 The husband is not home, he took off on foot, but we have probable cause<\/a>.\u00a0 So, the officer on that shift writes a PC declaration for the husband, they hand it off to the next shift and say, \u201cHey, you can go find him.\u00a0 Here you go, here’s the PC declaration, it’s all ready.\u201d\u00a0 The next shift finds him in the next morning, and they arrest him then.<\/p>\n

And we go to court.\u00a0 Was that a stale misdemeanor?\u00a0 In my opinion, the answer is \u201cNo\u201d. Because one of the issues here is that that particular crime does not have to be committed in the officer’s presence.\u00a0 The state legislature has told cops in California that you can arrest somebody for domestic even if it was never done in your presence.\u00a0 So, I think that gets it around that stale misdemeanor rule from the very beginning.<\/p>\n

That’s why I don’t think it’s an issue.\u00a0 So now we do have probable cause and it’s a lawful arrest.\u00a0 He was in a public place, we found him, or we lawfully got into the house or whatever.<\/p>\n

I don’t think it’s a problem.\u00a0 So, while arresting, if you found drugs on his person, or a gun, or whatever, I think that evidence is not going to be suppressed on the stale misdemeanor doctrine.<\/p>\n

What if your DA has a problem with a late misdemeanor arrest?<\/h2>\n

My final point is, if your DA really has a problem with arresting somebody later for a misdemeanor, like a domestic or whatever, they’ll let you know. \u00a0 If it’s not a problem for them, it\u2019s not a problem for you.\u00a0 This issue doesn’t come up very often, so I wouldn’t worry too much about it.<\/p>\n

It’s kind of academic in a sense, but it is a very good question, especially in California, because they do have still have the misdemeanor rule.<\/p>\n

I hope this helps you.\u00a0 Until next time, my friends stay safe!<\/p>\n

Related from Blue to Gold<\/h2>\n