In California, given that the police have probable cause to arrest someone, can they charge that person with a misdemeanor in the total absence of evidence that any crime has been committed? To be clear, it is NOT the case that the police gathered evidence that ultimately did not prove their case; rather, the police saw and gathered NO evidence at all (nor did they collect specimens of any kind from the arrested person).

I'm wondering if there is a cause of action against the police in such a situation.

UPDATE: The following are the details of the arrest.

Bob, a 70 year old single man, lived in a rented house with his girlfriend, Susan. Susan has a history of causing problems and was evicted from the house about 2 years ago. Bob remained in the house. Bob also has a history of causing problems and over the last 6 months has had 3 or 4 women in the house (one at a time, not all at the same time). None of the women established residency in house. Two of these women used drugs in the house. One used heroin and the other used meth amphetamines. The police were frequently at the house responding to multiple domestic disturbance calls. Bob used meth amphetamines just before calling the police for yet another domestic disturbance. When the police arrived, Bob was arrested and charged with possession of a controlled substance. Bob plead guilty and will be taking a drug diversion class. This was approximately 3 months ago.

Two months ago Bob moved in with Susan in her apartment. Recall that Susan was the woman evicted two years ago from the house Bob rents. Bob continued renting the house even though he was living with Susan in her apartment.

One week ago, Bob moved back into the house he is renting. Susan remained in her apartment. Susan, who has not been to Bob’s house since being evicted 2 years ago, called the police and falsely reported drug activity at Bob’s house. The police showed up at Bob’s house and informed Bob that someone called to report drug activity in the house. They asked if they could enter the house and conduct a search. Bob agreed. The police found nothing and then asked Bob if he was under the influence of any medication. Bob said yes, he had taken a Ritalin and produced the bottle of Ritalin, showing that it came from a pharmacy and was prescribed for Bob. The police asked Bob to produce a urine sample. Bob unsuccessfully attempted to produce the sample (the police had arrived only a minute or two after Bob finished using the restroom).

The police gave Bob 3 bottles of water to drink, which Bob drank. The police then waited for about 90 minutes at Bob’s house to give Bob time to produce the sample. Still unable to produce a sample, they arrested Bob. Bob challenged the arrest, asking why he was being arrested. The police responded by saying that the house was a known drug house, that Bob had a drug conviction and was on probation and that they felt Bob was under the influence of something other than the Ritalin. Bob believes he is not on probation, having never been ordered to meet with a probation officer. We are now investigating whether or not Bob is on probation.

While in police custody, the police never asked Bob to attempt to produce a urine sample. The police released him the next day, charging him with misdemeanor possession of a controlled substance. Bob never admitted using anything illegal and the police left the house with no evidence and no evidence was gathered while Bob was in custody.

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    They obviously had probable cause for an arrest, so why would you suppose that they have no evidence on which to base a charge? – Nij Oct 9 '19 at 19:45
  • @Nij I didn't want to include all the details of what lead up to the arrest, as it's lengthy and would only obfuscate the question I'm trying to ask. Suffice it to say, there is no evidence. – mbmast Oct 9 '19 at 19:48
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    Well, there obviously is evidence, or the police wouldn't have known that anything happened or be able to connect the arrested person with those events, would they? – Nij Oct 9 '19 at 19:50
  • @Nij I'm trying to adhere to the generally accepted Stackexchange etiquette of just stating the fact pattern and not including a lengthy discussion of the events leading up to the arrest. If I take what you are implying in your comments, the logical conclusion is that the police NEVER err in charging someone with a crime in the absence of evidence. I'm fairly confident this assumption is false and that, from time to time, the police make mistakes. I suspect a mistake was made in this case. That is what I'm asking about. – mbmast Oct 9 '19 at 19:56
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    You haven't described the fact pattern at all - just that there was an arrest and a charge. Then without any basis, you claim there is no evidence, and therefore question whether the charge is legitimate. I am telling you that either probable cause did not exist, else why the arrest, or there must be evidence of some kind, else why the charge. Leaving out the details that matter isn't accepted etiquette on any SE site, and including such details is crucial for Law SE. – Nij Oct 9 '19 at 20:31

A person cannot be arrested for a misdemeanor by a police officer without a warrant unless the officer has probable cause that a person committed a misdemeanor in their presence. "Probable cause" is when the facts objectively support a belief that the person has committed a crime. If there is a total lack of evidence, then there is no probable cause or even reasonable suspicion, so an arrest (for anything) when there is absolutely no evidence that the person committed a crime would be illegal.

If, for example, an officer decides he hates your face and arrests you for littering without any reason whatsoever, that would be illegal and a cause for a lawsuit. An officer might arrest a person for smoking marijuana in public based on a person exuding the smell of marijuana and seeing the person smoking a hand-rolled cigarette, but they could also be factually mistaken as to whether the person had actually been smoking marijuana at the time: perhaps they were wearing marijuana-smelling perfume and were smoking a regular tobacco cigarette. The evidence for the crime would not be completely non-existent, but would be insufficient for a conviction. If the officer failed to take the cigarette as evidence, that would be a problem, because the remaining evidence (visual and olfactory) would not support a conviction.

  • I believe you have answered my question. However, @Nij makes a good argument for more information, so I plan on updating my question with the details surrounding the arrest. – mbmast Oct 9 '19 at 21:18
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    Technically it's supposed to be like that, but in the real world, a cop hating you can literally make up evidence in any way in order to waste your time, and even put you in jail. There have been cases in the U.S in which more cops pulled over cars of single individuals, one of them distracting the driver, the other one searching the car (pretending), take illegal substances out of their own pockets with gloves, put the substance in their car, pretend to find it in the car itself and ruin the person's life. That's how it works in the U.S, and of course, unreportedly. – abdul Oct 10 '19 at 13:28

Prosecutors make charging decisions, not the police.

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