Category: law enforcement

Can Police Follow a Suspect for No Reason?

Yes, police can follow a suspect for a reasonable period of time even if they have no reason to believe the suspect committed a crime.

Police do not need reasonable suspicion to follow a suspect in California if the encounter remains consensual. Under California law, consensual encounters between law enforcement and individuals do not trigger Fourth Amendment scrutiny. A consensual encounter occurs when a reasonable person would feel free to disregard the police and go about their business. For example, officers may approach someone in a public place and converse with them without any suspicion of criminal activity. However, the encounter becomes a detention if the individual is not free to leave or terminate the interaction.1

If the police action escalates to a detention, reasonable suspicion is required. A detention occurs when an officer restrains an individual’s liberty through physical force or a show of authority, and a reasonable person would not feel free to leave. Reasonable suspicion must be based on specific, articulable facts that suggest the person is involved in criminal activity.2

How Long can Police Follow a Suspect?

Continued police surveillance violates the 4th Amendment if it is unreasonable. Surveillance is unreasonable if it infringes upon an individual’s reasonable expectation of privacy or is conducted in a manner that is excessive or unjustified under the circumstances.3 There is no bright line on when continued surveillance becomes unreasonable. However, to violate the 4th amendment, the surveillance must be more than following a suspect for a short time. Ultimately the reasonableness of the surveillance depends on the specific facts of the case.

Additionally, California statutes clarify that law enforcement personnel may follow or surveil individuals. Officers can follow suspects as a part of their duty to investigate suspected illegal activity or misconduct. Their surveillance must be supported by articulable suspicion.4 This aligns with the principle that reasonable suspicion is necessary for more intrusive actions, such as detentions or searches, but not for mere observation or following in public spaces.

  1. People v. Kidd, 36 Cal. App. 5th 12, People v. Linn, 241 Cal. App. 4th 46. ↩︎
  2. Arburn v. Department of Motor Vehicles, 151 Cal. App. 4th 1480, People v. Bennett, 17 Cal. 4th 373. ↩︎
  3. United States v. Martin, 753 F. Supp. 454, 463. ↩︎
  4. Cal. Civ. Code section 1708.8. ↩︎

Bench Warrant for Failing to Appear in Court

What is a bench warrant?

A bench warrant is a warrant to arrest a defendant for failing to appear in court when ordered. It instructs law enforcement to apprehend the defendant and bring them before the court.

Issuing the warrant

A judge or magistrate issues the warrant at the court hearing. The judge can issue a bench warrant for multiple reasons:

  • The judge previously ordered the defendant to appear in court at a specific time and place;
  • The defendant bailed out of jail and was ordered to appear in court at a specific time and place;
  • The defendant received OR release and promised to appear in court at a specific time and place;
  • The defendant received a citation and signed a promise to appear in court at a specific time and place;
  • The judge ordered the defendant to appear in court even though the defendant has a lawyer;
  • An information or indictment was filed in the superior court and the court fixed the date and place for the defendant to appear.

First court date

Most bench warrants result from the defendant’s failure to appear at their first court date. The first court date is also called the “arraignment.”

The defendant must appear in person at their first court date if:

  • One or more of the charges is a felony;
  • One or more of the charges involves domestic violence;
  • One or more of the charges involves driving under the influence AND the judge orders the defendant to appear.

In all other cases, an attorney can appear on behalf of the defendant if the court allows. (see Penal Code § 977.)

Some courts allow a defendant to appear remotely at their court appearance. To find out if you can appear remotely, contact the criminal clerk at the court.

What are the consequences of a bench warrant?

A bench warrant directs law enforcement to bring the defendant to court. Law enforcement can serve the warrant in any county in California. The bench warrant operates identical to an arrest warrant.

Do I have a bench warrant?

You can contact the criminal clerk at the court to find out. The clerk can look up your case using your name and date of birth.

How do I get rid of a bench warrant?

Either the defendant or their attorney must appear in court. At that time, the judge will recall the warrant.

Field Sobriety Tests

What are Field Sobriety Tests?

Field sobriety tests are often divided attention tests (think rub your stomach while patting your head). Although they are not scientific tests, law enforcement uses them to obtain evidence of driving under the influence. The results of the tests are used by prosecutors to convict drunk drivers and to justify DUI arrests.

Refusing Field Sobriety Tests

You may refuse to do any field sobriety tests. One exception to this is that you must provide a blood, breath, or urine sample. However, you are only required to provide a sample if law enforcement arrests you for driving under the influence. Failure to provide a sample can result in further consequences.

“Standardized” Field Sobriety Tests

The following three tests are approved for law enforcement use by the National Highway Traffic Safety Administration.

Horizontal Gaze Nystagmus

field sobriety tests

Horizontal Gaze Nystagmus is an involuntary jerking of the eye that happens when the eyes move to the side from center point. Prior to the administration of this test, an officer must check a subject’s eyes for equal pupil size, resting Nystagmus and equal tracking. The officer administers the test by slowly moving his finger in front of the suspect’s eyes.

An officer administering this test will check for three clues in each eye while checking for HGN:

  • Lack of Smooth Pursuit. When the eyes jerk or bounce as they follow a smoothly moving stimulus.
  • Distinct and Sustained Nystagmus at Maximum Deviation. When the eye jerks when it remains to the side for a minimum of four seconds.
  • Onset of Nystagmus Prior to 45 Degrees. When the eye begins to jerk when it moves 45 degrees from the center.

Four or more cues indicates that the suspect probably has a blood alcohol level over .08%.

Walk and Turn (aka “Walking the Line”)

field sobriety tests

The walk and turn test is a divided attention test. It divides the suspect’s attention between physical and mental tasks. The physical task is balancing and walking on a line. The mental task is completing the test exactly as instructed. The test begins with the instruction phase, followed by the walking stage.


The instruction phase begins with the suspect standing with their feet heel to toe (right foot behind) and arms at their sides. The suspect remains in this position while the officer explains the test. Next, the officer demonstrates three heel-to-toe steps, a turn, and three heel-to-toe return steps.

For the performance part of the test, the suspect must keep their arms at their sides and take nine heel-to-toe steps, followed by a turn and nine heel-to-toe return steps. The suspect must walk a straight line and cannot pause once they start walking. While walking, the must keep their arms at their side, look down at their feet and count each step.

During the test the officer will look for a number of cues for this test, including:

  • Loses balance during instructions;
  • Starts walking too soon;
  • Stops while walking;
  • Fails to touch heel-to-toe;
  • Steps off the line;
  • Uses arms for balance;
  • Makes an improper turn;
  • Takes the wrong amount of steps.

If the officer observes two or more of these cues, it indicates the suspect probably has a BAC over .08%.

One Leg Stand

one leg stand

There are two stages to the one-leg stand test. First the officer instructs the suspect in how to perform the test. Second, the suspect performs the test. During the instruction phase, the officer will provide oral instructions on performing the test. The officer will also demonstrate part of the test. Once this is complete, the officer asks the suspect if they understand the instructions.

During the performance stage, the suspect raises one leg with their foot parallel and approximately six inches off of the ground. With their hands to the side, they count in thousands (one-one thousand, two-one thousand, etc.) while looking at their foot until instructed to stop.

During the test, the officer will look for six possible clues: swaying, using arms for balance, hopping or putting your foot down. If the officer observes two or more clues, it indicates that the suspect probably has a BAC over .08%.

Other Field Sobriety Tests

Law enforcement commonly uses other field sobriety tests including:

Modified Romberg

rhomberg

Moritz Heinrich Romberg, a German neurologist, created the Romberg test to evaluate neurological function. Although it is not approved by the NHTSA, law enforcement uses it to determine intoxication. Like many field sobriety tests, it divides the suspect’s focus between a physical and a mental task.

The basis of the test is that two of the following three functions are needed to maintain balance: vision, inner ear and spacial orientation. If an individual is unable to properly balance using two of these functions, it may be an indication of a neurological problem. When administered as a field sobriety test it is evidence of intoxication.

To administer this test, the officer asks the suspect to stand with their feet together, head tilted slightly back and eyes closed. The officer asks the suspect to estimate when 30 seconds has passed, and say “stop.”

While you are balancing, the officer will look for six clues: amount and direction of swaying, eyelid/body tremors, estimate of when 30 seconds has passed, muscle tone, sounds or statements made during the test, and ability to follow directions.

Finger to Nose

balance test

The finger-to-nose test requires the suspect to close their eyes, tilt their head back slightly and touch their nose with their index finger. The suspect repeats this action three times on each hand, for a total of six attempts. The officer will instruct and demonstrate the test first. Then the suspect will perform the test as demonstrated.

While performing this test, the officer will look for a number of clues that indicate intoxication. These include: inability to follow instructions, swaying, eyelid/body tremors, speaking or making sounds during the test and failing to touch your finger to your nose. If you exhibit several of these clues, law enforcement could arrest you for driving under the influence.