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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
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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
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    "the logical conclusion is that the police NEVER err": That's not the logical conclusion at all. The point that @Nij is making, or at least one point, is that the police must have had some evidence, not that they necessarily had correct evidence. Police make mistakes all the time, just as everyone does. But if the police arrest someone based on incorrect evidence, or on correct evidence interpreted incorrectly, it is not the same as arresting someone with no evidence. It might be an illegal arrest, but it might not be. – phoog Jan 18 at 14:24
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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.

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  • 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
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Can police charge someone with a misdemeanor in the total absence of evidence?

No. But the notion that there is no evidence for the charge sufficient to establish probable cause under the fact pattern presented is wrong.

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.

This is sufficient to establish probable cause of possession of a controlled substance. Lots of people have a hard time understanding that a statement from a person claiming to have personal knowledge of the facts is evidence.

Indeed, suppose Susan testified under oath that Bob was in possession of a controlled substance in a jury trial, and there was no other evidence offered up against Bob whatsoever, and Bob and ten other people testified that Susan was lying. But, suppose that after this trial, the jury believed Susan and convicted Bob of the controlled substances charge. This alone would be sufficient evidence for jury's conviction of Bob following that trial to be upheld on appeal in the face of an argument that there was insufficient evidence presented at trial to support a conviction.

Also, given the bare statement of Susan is corroborated to some extent by the fact that "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."

While the prior conviction isn't admissible evidence at a trial on guilt or innocence, it is something that the police may legally consider when evaluating whether an eye witness report by a publicly disclosed informant (as opposed to an anonymous tip) is credible enough to establish probable cause.

Furthermore, the fact that Bob doesn't known whether he is on probation or not reflects very poorly on him and suggests he is being dishonest; it is much more likely than not that the police are correct under the circumstances, and even a mistaken belief on the part of the police that he is on probation and lying about not being on probation to them would be enough to undermine his credibility when he denies Susan's allegations that he committed a crime and the police are entitled to consider that as well in the course of evaluating whether Susan's statement is credible enough to constitute probable cause, until the belief is proven wrong.

Also, it isn't clear from the question "when" Susan is accusing him of being in possession of a controlled substance. She could be accusing him of being in possession of a controlled substance more than two years ago, when she was last in the apartment, rather than recently. So long as the statute of limitations has not run on the old possession incident, that would still be a valid basis for an arrest and would also make the lack of physical evidence now in Bob's apartment and while Bob was in custody immaterial to whether Susan's statement about a controlled substance possession incident much later happened or not.

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.

If Bob is on probation, the police are allowed to make warrantless searches.

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.

The fact that no additional evidence was gathered during the search or while he was in custody doesn't undermine the fact that someone says that they have witnessed him committing a crime, which suffices to establish probable cause.

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I believe the rule is that having a controlled substance in his body would be possiession even if no other contraband was found. Bob's conduct could have provided suifficient evidence of intoxication by a controlled substances to rise to the low bar required for probable cause. (Since he actually was intoxicated, it is not unlikely he showed signs of it). In New York, having a pill that you have a valid prescription for in something other than the original pharmacist'ss bottle is a crime, stupid though that is. Are you sure his ritalin was in the right bottle? It sounds almost like he was charged with keeping a bawdy house. There are laws on the books against keeping a house that is the focus of disruptive of illegal behavior. I'm not familiar with that case law, but it sounds like Bill might be a candidate for arrest on such a charge. Since he consented to the search, you might want to find out if he consented to the arrest --- people like Bob often do, for reasons I don't fully understand. In sum, this does not sound like a case I would spend much time on. Bob consented to most of the police conduct you describe, or at least he can credibly be said to have done so (which the police will say), since he admits to consenting to their entry and the search. You don't mention violence, so damages for false arrest would be limited to time in custody up to arraignment. Not much there. Your other cause of action would be malicious prosecution, but it sounds like your argument is not that the cops are framing bob by providing the court with fabricated or unlawful evidence (which would be malpros), but that they are failing to frame him effectively by their neglectful failure to provide evidence of the crime Bob didn't do. That sounds like a case that could get dismissed on the pleadings. The person responsible for prosecuting in the face of the lack of evidence is the DA -- the police can't get a case dismissed. The DA is generally immune from suit. I see very little possibility of financial gain for either Bob or his attorney. No one in their right mind would take a case like this pro bono, for the principle of the thing. If you are an attorney with time on your hands, there are plenty of people who need legal help and who actually deserve free representation: you could start at your local shelter for victims of domestic violence. OR see if you can stir up business suing people or enterprises for negligently transmitting COVID -- the courts will rule out such claims sooner rather than later, but the first few cases against insured defendants will probably get some money tossed their way.

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