23:00 Arrest: When the Custody Clock Starts and What May Not Wait Until Morning
At 22:40 the duty officer takes a call: a grocery owner, Mr. B., says a man seized the day's takings - he estimates 40,000 DA - and pushed him against the counter before running off. A patrol reaches the shop at 22:52. At 23:00, some 300 metres away, the officers stop a man matching the description; he is carrying 38,500 DA in small notes and a box-cutter. He cannot produce an identity document and says he 'found the money'. He is 26 and has no record. The patrol brings him to the unit at 23:20. At 00:30 the officer on duty decides to wait until 08:00 before informing the procureur de la République, 'so that everyone can rest', and to let the shopkeeper, who telephoned at midnight offering to withdraw his complaint if the money is returned, come in the next morning to sign a withdrawal.
1. Is this a flagrant offence, and at what moment does the custody clock start? What must be written in the register?
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Flagrant offence: yes. The offence had just been committed, the suspect was found a few minutes later and a few hundred metres away, carrying objects that match the report (the notes, the box-cutter described as used to threaten). That is the classic situation of a person found shortly after the act in possession of incriminating items.
Start of the clock: 23:00, not 23:20. Custody begins the moment the person is no longer free to leave - here, when he was stopped and held. The 23:20 entry into the unit is an administrative fact, not the legal starting point. Backdating or forward-dating this is the single most dangerous error in the file: the whole duration of the measure, and any renewal, is computed from it, and a defence lawyer will attack the register the moment the two times diverge.
The register must show, in the officer's own hand and without erasure: the time of the call, the time the patrol arrived, the time and place of the stop, the exact time the measure began (23:00), the identity document check and its outcome, the notification of rights and to whom, and the time the procureur was informed. The 38,500 DA must be counted, described and sealed at the moment of seizure.
2. The officer wants to wait until 08:00 to inform the procureur. Assess that decision, and list what the suspect must be told tonight.
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Waiting until 08:00 is unlawful. For a flagrant offence the procureur de la République must be informed without delay; the notification is not a formality that can be postponed for the comfort of the unit. Two consequences follow: the procedure is exposed to nullity, and the deprivation of liberty continued without the required supervision can itself expose the officer to serious personal liability. The correct action is to call the duty procureur at 23:00–23:20, report the facts, the time of the stop and the items seized, and take instructions on the follow-up.
The suspect must be informed, in a language he understands and with the notification recorded:
- the facts alleged against him and his status in the procedure;
- his right to have a person of his choice informed of the measure;
- his right to a medical examination, and the examination itself if he asks for it or if his condition requires it;
- his right to be assisted by a lawyer;
- the duration of the measure and its starting point.
The box-cutter and the money are seized with a precise description; nothing is returned to anyone tonight. Under the ordinary regime the measure runs 48 hours from 23:00 and may be extended once, in writing, by the procureur - which is another reason the start time must be exact.
3. The shopkeeper offers to withdraw his complaint if the money is returned next morning. Can the unit organise that, and how is the money handled?
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No. Theft aggravated by violence is an offence prosecuted in the name of society; the public action is set in motion by the procureur, not by the victim. A withdrawal of complaint does not extinguish it, and the unit has no power to convert the case into a private settlement. Returning the money against a signature would also destroy the evidential link between the seized notes and the reported takings.
What the unit may and must do: take Mr. B.'s statement, including his estimate of 40,000 DA and the discrepancy with the 38,500 DA recovered; note his wish to recover his money and tell him that restitution is decided in the proceedings, not at the counter; and transmit his offer of withdrawal to the procureur as part of the file, without acting on it.
The money is counted in his presence if possible, described note by note or by bundle, sealed, entered in the register with the time and the names of the officers, and stored. If the victim needs the sum urgently, that is a decision for the procureur, on a written request, not for the duty officer at 00:30.