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The Myth of Investigative Detention vs. Arrest
Common misunderstandings in the police community about the law are a result of many factors, not least of which is inconsistency among our own trainers, as well as prosecutors and judges. It is important, though, for supervisors and managers to accurately distinguish between common misunderstandings and correct law so that they apply correct standards in their assessments of officers.
Officers need to make the same distinction so they are able to properly apply the law. Naturally, our training should reflect the law as it is—not as it might be pervasively misunderstood. Each agency should decide and announce its philosophy toward prosecutorial and judicial agendas that may be different, often more restrictive of police behavior, than the law actually is.
Many officers have been taught that an arrest occurs whenever law enforcement creates a situation in which a subject is “not free to leave.” If that was a correct definition, every investigative detention, i.e., “Terry stop,” would be an arrest. Some officers have been taught that if they use any force whatsoever to restrain someone, they have arrested that person. If this statement was true, then an officer could not even grab someone’s arm during a “Terry stop” to prevent him from walking away.
In fact, in terms of federal constitutional law, neither of these teachings is a correct definition of arrest. However, these explanations correctly define a “seizure” of a person. A seizure of a person occurs whenever force is used or a person submits to a show of authority by police. Seizures of persons come in two forms: investigative detentions, AKA “Terry stops,” which require reasonable suspicion, and arrests, which require probable cause.
Arrest as a Federal Constitutional Concept
What, then, is a correct definition of arrest, for purposes of federal Constitutional law? An arrest is a seizure of a person in which the subject is 1) required to go elsewhere with police, or 2) deprived of his freedom of movement for more than a brief period of time, or 3) subjected to more force than is reasonably part of an investigative detention.
So, if an officer has said or done things that would cause a reasonable person to believe that he was not free to leave or to decline the contact with the police and either the subject is required to leave and go elsewhere with police or a detention persists for more than a short while, or more force is used than is reasonable to simply restrain someone, then that person has been arrested. Even if an officer does not intend to arrest the subject, the courts will likely determine that the interaction is in fact an arrest.
This month’s article focuses on the “requirement to go elsewhere” or involuntary movement aspect of “arrest.” A future article will address the question of how long a person can be deprived of his freedom of movement as part of a “Terry stop.” That is, without the seizure becoming an arrest in the Constitutional sense.
As to the force issue, appeals courts generally agree that officers may use reasonable (non-deadly) force to effect and safely maintain an investigative detention. And, as a practical matter, if an officer is having to use more than absolutely minimal force in an investigative detention, the subject is almost always doing something at that point for which there would be probable cause to arrest him. But we’re getting ahead of ourselves.
Reasonable suspicion allows the police to conduct an investigative detention or “Terry stop,” but officers must use great care to ensure that the investigative detention does not accidentally evolve into an arrest without the requisite probable cause.
One of the first United States Supreme Court cases to deal with this issue was Dunaway v. New York, 442 U.S. 2000 (1979), where the defendant confessed to a robbery-homicide after being “picked up for questioning” and taken to police facilities. The Supreme Court found that Dunaway’s confession was inadmissible because, when he was required to leave his home and go to the police facilities, he was in essence “arrested” without probable cause.
There is simply no provision in the law that permits police to “pick someone up for questioning” in the absence of probable cause. If the police transport a person “for questioning” (without the person’s voluntary consent), the courts will almost always deem that transaction to be an arrest, which of course requires probable cause.
In Florida v. Royer, 460 U.S. 491 (1983), the court again dealt with involuntary movement of a suspect during an investigative detention. Royer was detained in an airport concourse based on reasonable suspicion (but not probable cause) that he was a drug courier. The court found that the detention “matured” into an illegal arrest when he was required to go with police from the public concourse to a small “police dominated” room off the concourse. Importantly, the court commented that articulated safety and security reasons might sometimes cause an exception to their emerging rule.
Noted Constitutional scholar Professor LaFave describes this minor exception as follows: “…it seems clear that some movement of the suspect in the general vicinity of the stop is permissible without converting what would otherwise be characterized as a temporary seizure into an arrest.” (Search and Seizure treatise, Third Edition, Volume 3, pp. 75-76.)
In Hayes v. Florida, 470 U.S. 811 (1985), police (without probable cause to arrest) required the defendant to leave his home and go to police facilities for fingerprinting. The court cautioned that “the line is crossed when police, without probable cause or a warrant…remove a person from his home or other place he is entitled to be and transport him to the police station where he is detained, although briefly, for investigative purposes.” The line the court refers to is the legal line between investigative detention and arrest.
More recently in Kaupp v.Texas, 123 S.Ct.1843 (2003) the police, armed with reasonable suspicion but not probable cause to arrest, went at 3 a.m. to the home of a 17-year-old murder suspect, woke him, and told him “we have to talk.” He responded “OK” and was transported to police facilities and interrogated. His resulting confession was found to be the product of an illegal arrest.
The defendant’s response of “OK” to the officer’s “we have to talk” did not make the contact consensual. Rather, according to the court, the defendant submitted to the officer’s “show of authority.” Officers may transport suspects with their consent, but the consent must be voluntary, that is, the suspect must be spoken to in a manner that clearly suggests the option to decline.
While Supreme Court rulings have dealt exclusively with situations in which a person was required to leave his home and accompany police to law enforcement facilities, even requiring someone to leave one public area and go with police to another public area will convert an investigative detention into an arrest, requiring probable cause.
An officer may detain a person based solely on reasonable suspicion for a limited time to conduct a brief investigation. However, if during the detention the suspect is moved without his voluntary consent from one location to another, the detention likely will be deemed an arrest requiring probable cause. The exception to this rule seems to be short movement within one environment for articulable safety and security reasons.
Consequently, when officers lack probable cause to arrest, they should not say or do things that would cause a reasonable person to feel that he is being required to leave where they are and to go elsewhere with the police. Asking someone if they would be willing, on a voluntary basis, to go elsewhere with the officer is always permitted, as long as it is done non-coercively.
When police officer tells someone, “You’re going to have to come with me,” or “You’re going to need to come with me,” and the subject says “OK” and goes with the officer, the resulting transaction will almost surely be viewed by reviewing courts as an arrest in the Constitutional sense, which of course requires pre-existing probable cause.
Randy Means is a partner in the Charlotte, NC law firm of Thomas and Means, LLP, and specializes entirely in police operations and administration. He is the primary legal instructor for the IACP. He can be reached at email@example.com. In her 20-year career, Pam McDonald has worked as a patrol officer, a felony investigator, a felony prosecutor, and a college professor specializing in police issues. She is currently assisting Randy Means. She can be reached via e-mail at firstname.lastname@example.org.
Published in Law and Order, Aug 2009
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