Former Deputy Attorney General. Highest Rated. Client’s Choice Award 2007-2019. Over 250 FIVE STAR Client Reviews & Attorney Endorsements

Since 1971, a former DAG, Department of Justice State of California, Sam Spital prosecuted cases in all State and Federal Courts through the California Supreme Court as well as the US Supreme Court. Since 1978, he has handled the defense of misdemeanor crime cases throughout San Diego County.

A misdemeanor is a crime punishable by less than one year in jail. Misdemeanor arrests can only be made for crimes that occur in the presence of the person making the arrest, or with a warrant.

As your San Diego Misdemeanor Defense Attorneys, at Spital & Associates, we are experienced in misdemeanor defense; we want to defend you against any San Diego misdemeanor charges, including the following:

  • Disorderly Conduct
  • Drug Charges
  • Perjury
  • Petty Theft
  • Probation Violations
  • Property Damage
  • Reckless Conduct
  • Resisting Arrest
  • Theft
  • Burglary
  • Trespassing
  • Violation of Orders of Protection
  • Violation of Restraining Orders
  • Weapons Charges
Conviction of a any of the above can result in a number of consequences. Click here to learn more about the consequences in San Diego misdemeanor defense cases. Please click here to learn  about mitigating factors in your San Diego Misdemeanor Defense Case!

Knowing When an Arrest Is Legal

The following is a brief summary of the legal principles in general when the police are permitted to make an arrest — and what constitutes an “arrest.”
A misdemeanor arrest occurs when a law enforcement officer takes a suspect into custody. An arrest is complete the moment the misdemeanor suspect is no longer free to walk away from the arresting police or sheriff. The police can only make an arrest, pursuant to the Fourth Amendment of the U.S. Constitution if they have “probable cause” to believe a crime was committed and that the suspect did it.

The underlying basis for this constitutional amendment is that the people of the United States are entitled to “life, liberty and the pursuit of happiness.” The probable cause requirement limits law enforcement from depriving people of their “liberty” (or freedom). The following are further illustrations of this legal principle:

  • The police officer or sheriff must be able to point to “objective and factual” circumstances that lead him or her to believe a suspect committed the crime for probable cause to exist. It is totally insufficient to establish probable cause by saying something like, “I had a hunch the defendant was a thief.”
  • Regardless of how a law enforcement officer or prosecutor characterizes the evidence, it is the Superior Court Judge who determines whether probable cause exists. A police officer or sheriff may be sincere in his or her belief that enough facts exist to constitute probable cause. However, if a judge examines the same information and disagrees, then probable cause did not exist.
  • The problem with an arrest is that once the process is completed and the defendant is booked, there is an arrest record that essentially exists forever. In other words, if probable cause to arrest existed at the time of the arrest, the arrest is deemed valid notwithstanding what may later occur and even if the defendant is found innocent. Probable cause becomes a “shield” to protect law enforcement from a civil suit for false arrest if the charges are later dismissed or, if after a trial, the defendant is acquitted. There are special and limited circumstances in which an arrest can be removed from one’s record; this generally involves those situations in which no actual criminal charge is filed by the prosecutor within the time deadline (misdemeanor limitation period is one year).

The bottom line, however, is whether law enforcement has “sufficient information” to establish probable cause for the misdemeanor arrest. The police must decide whether to make an arrest without an arrest warrant (“warrantless arrest”) or seek to convince a judge to issue an arrest warrant. As noted earlier, probable cause requires more than a “mere suspicion” that a suspect committed a misdemeanor crime. This standard of proof for misdemeanor crimes is much less than what is required to prevail in a trial (namely, sufficient evidence or information to prove the defendant is guilty “beyond a reasonable doubt”).

The Fourth Amendment does not define probable cause, so attorneys and judges look to case law and precedent to define or interpret the meaning of probable cause, taking into account some of the following:

  • What the judge thinks was intended by the Fourth Amendment by the term probable cause
  • Previous judges’ interpretations in similar fact situations
  • The judge’s views about police vs. defendants’ rights

Judges help to define the meaning of probable cause each time they issue a warrant or decide a case in which the issue arises.

To read and printout a copy of the form please click here.

You can download a free copy of Adobe Acrobat Reader here.

If you are investigated, arrested or charged with a misdemeanor, contact us as your San Diego Misdemeanor Defense Lawyers at 619.583.0350 or send an e-mail now so that we can help fight your misdemeanor charges.


Main Offices
8880 Rio San Diego Drive, Suite 800
San Diego, CA 92108-1642
Telephone: 619-583-0350
Fax: 619-583-1850

Associates available 8:30am-8:30pm Daily
Call (619) 583-0350 or send us an e-mail.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.