Stale Misdemeanors: How Long Is Too Long to Make a Warrantless Arrest? The case law has answers.

By Robert Phillips  
Deputy District Attorney (ret.) 

The Law on Stale Misdemeanors:

I periodically receive questions asking me about the legal phenomenon often referred to as the “Stale Misdemeanor Rule.” There’s no statute explaining what is, and what is not, a stale misdemeanor. So we have to feel our way around in the dark on this issue via the relevant case law. 

Generally, the rules on stale misdemeanors dictate that for an officer to make an arrest for the violation of any misdemeanor offense, absent an arrest warrant, the arrest must have occurred at the time of, or shortly after, the commission of the offense. (People v. Hampton (1985) 164 Cal.App.3rd 27, 30-31.)  

The Stale Misdemeanor as it Relates to Pen. Code § 836(a): 

In Hampton, California’s First District Court of Appeals (Div. 6) interpreted subdivision (a)(1) of Penal Code § 836(a) to allow for misdemeanor arrests only when “in obedience to a warrant” or when there is “probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence.” From this, per the court, it is implied that “(s)uch an arrest must be made at the time of the offense or within a reasonable time thereafter...In other words, if the arrest is not made ‘reasonably ....