Detentions vs. Arrests

Detentions vs. Arrests:  If not handled properly, a "detention" could become an "arrest" which, if not supported by "probable cause" to arrest, would be illegal.  (Orozco v. Texas (1969) 394 U.S. 324 [22 L.Ed.2^nd 311].)

General Rule

General Rule:  The use of firearms, handcuffs, putting a person into a locked patrol car, transporting him without his consent, or simply a "show of force," may, under the circumstances, cause the court to later find that an attempted detention was in fact an arrest, and, if made without "probable cause," illegal.  (United States v. Ramos-Zaragosa (9^th Cir. 1975) 516 F.2^nd 141, 144; New York v. Quarles (1984) 467 U.S. 649 [81 L.Ed.2^nd 550], handcuffs; Orozco v. Texas, supra, force.)

Indicators of an Arrest:

The Use of Firearms

The use of firearms.  (People v. Taylor (1986) 178 Cal.App.3^rd 217, 229; United States v. Ramos-Zaragosa, supra.)

The Use of Handcuffs

The use of handcuffs.  (New York v. Quarles, supra; United States v. Purry (D.C. Cir. 1976) 545 F.2^nd 217, 220.)

While putting a juvenile in a security office at the border, and frisking her, were not enough to constitute an arrest, handcuffing her shortly thereafter when contraband was found in her car was an arrest.  (United States v. Juvenile (RRA-A) (9^th Cir. 2000) 229 F.3^rd 737, 743.)

A Locked Patrol Car

Putting the subject into a locked patrol car.  (People v. Natale (1978) 77 Cal.App.3^rd 568, 572; United States v. Parr (9^th Cir. 1988) 843 F.2^nd 1228; United States v. Ricardo D. (9^th Cir. 1990) 912 F.2^nd 337, 340; "Detention in a patrol car exceeds permissible Terry (v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2^nd 889].) limits absent some reasonable justification."

Show of Force

During an overwhelming show of force.  (Orozco v. Texas, supra; United States v. Ali (2^nd Cir. 1996) 86 F.3^rd 275, defendant was asked to step away from the boarding area at an airport, his travel documents were taken, and he was surrounded by seven officers with visible handguns; and Kaupp v. Texas (2003) 538 U.S. 626, 628-630 [155 L.Ed.2^nd 814, 819-820], three officers, with three more in the next room, commanded the 17-year-old defendant to get out of bed at 3:00 a.m., and took him to the police station for questioning.)

Physical Touching

The physical touching of the person of the suspect.  (Kaupp v. Texas, supra, at p. 630 [155 L.Ed.2^nd at p. 820.)

Transporting a Detainee

Transporting a Detainee.  (Dunaway v. New York (1979) 442 U.S. 200, 206-216 [60 L.Ed.2^nd 824, 832-838]; Taylor v. Alabama (1982) 457 U.S. 687 [73 L.Ed.2^nd 314].) 

As a general rule:        Detention

                                    + nonconsensual transportation

                                    = arrest. 

See also People v. Harris (1975) 15 Cal.3^rd 384, 390-392; transporting a subject from the site of a traffic stop back to the scene of the crime for a victim identification, absent one of the recognized exceptions, was an arrest.

"(W)e have never ‘sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes . . . absent probable cause or judicial authorization.' [Citation]"  Kaupp v. Texas (2003) 538 U.S. 626, 630 [155 L.Ed.2^nd 814, 820].)

But See "Exceptions," below.

Exceptions:

Exceptions:  The use of firearms, handcuffing, a non-consensual transportation, and/or putting a subject into a patrol car, if necessary under the circumstances, particularly if precautions are taken to make sure that the person knows he is only being detained as opposed to being arrested, or when the use of force is necessitated by the potential danger to the officers, may be found to be appropriate and does not necessarily elevate the contact into an arrest.  (See People v. Celis (2004) 33 Cal.4^th 667, 673-676.)

In General

In general, the investigative methods used should be the least intrusive means reasonably available.  Although the use of some force does not automatically transform an investigatory detention into an arrest, any overt show of force or authority should be justified under the circumstances.  (See, e.g., United States v. Holzman, 871 F.2d 1496, 1502 (9th Cir. 1989), restraints justified by belief suspect was attempting to flee; United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987), given officer's knowledge of suspect's history of violence, show of force justified by fear for personal safety."  (In re Ricardo D. (9^th Cir. 1990) 912 F.2^nd 337, 340.)

Examples

For example:

Firearms:  United States v. Rousseau (9^th Cir. 2001) 257 F.3^rd 925; People v. Glaser (1995) 11 Cal.4^th 354, 366.

Handcuffing:  People v. Brown (1985) 169 Cal.App.3^rd 159, 166-167; United States v. Purry, supra; United States v. Rousseau, supra; United States v. Juvenile (RRA-A) (9^th Cir. 2000) 229 F.3^rd 737, 743.

Putting into a patrol car:  People v. Natale, supra; United States v. Parr, supra.

Case Law

Case Law:

United States v. Meza-Corrales (9^th Cir. 1999) 183 F.3^rd 1116; "(W)e allow intrusive and aggressive police conduct (handcuffing, in this case) without deeming it an arrest in those circumstances when it is a reasonable response to legitimate safety concerns on the part of the investigating officers." 

United States v. Rousseau, supra; where it was held that using firearms and handcuffs did not convert a detention into an arrest when the use of force was necessitated by the potential danger to the officers.

Haynie v. County of Los Angeles (9^th Cir. 2003) 339 F.3^rd 1071:  Handcuffing and putting an uncooperative suspect in the backseat of a patrol car while the officer checked the vehicle for weapons held not to be an arrest.  "A brief, although complete, restriction of liberty, such as handcuffing (and, in this case, putting into a patrol car), during a Terry stop is not a de facto arrest, if not excessive under the circumstances."  (Id., at p. 1077.)

Referring to Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2^nd 889].)

Stopping two suspects suspected of committing felony drug offenses, with the officers displaying their firearms, handcuffing the suspects, and making them sit on the ground while a two-minute check of their house for additional suspects, did not convert what was intended to be a detention into an arrest.  (People v. Celis (2004) 33 Cal.4^th 667, 673-676.)

The California Supreme Court in Celis noted the below listed important factors to consider:

• Whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.
• The brevity of the invasion of the individual's Fourth Amendment interests.

Information that defendant had threatened a victim with a firearm and was presently sitting in a described vehicle justified a "felony stop," pulling the defendant and other occupants out of the car at gun point and making the lay on the ground until the car could be checked for weapons.  Given the officers' safety issues, such a procedure amounted to no more than a detention.  (People v. Dolly (2007) 40 Cal.4^th 458.)

Note:   "Custody" for purposes of Miranda v. Arizona (1966) 384 U.S. 436, 445 [16 L.Ed.2^nd 694, 708].), under the Fifth Amendment, involves a different analysis than "custody" for purposes of a detention or arrest under the Fourth Amendment.  "In contrast (to Fourth Amendment search and seizure issues, where the reasonableness of the officer's actions under the circumstances is the issue), Fifth Amendment Miranda custody claims do not examine the reasonableness of the officer's conduct, but instead examine whether a reasonable person (in the defendant's position) would conclude the restraints used by police were tantamount to a formal arrest."  People v. Pilster (2006) 138 Cal.App.4^th 1395, 1406.)

Note:  Telling a person that he is not under arrest may not be enough by itself to negate what is otherwise an arrest (See United States v. Lee (9^th Cir. 1982) 699 F.2^nd 466, 467.).  But even if it is not, it is at least a factor to consider when considering the "totality of the circumstances."  (United States v. Bravo (9^th Cir. 2002) 295 F.3^rd 1002, 1011.)

Non-Consensual Transportation Exceptions

Non-Consensual Transportation Exceptions:  The Courts have found exceptions to the "transportation = arrest" rule when the following might apply:  "(T)he police may move a suspect without exceeding the bounds of an investigative detention when it is a reasonable means of achieving the legitimate goals of the detention ‘given the specific circumstances' of the case."  (United States v. Charley (9^th Cir. 2005) 396 F.3^rd 1074, 1080.)

In Charley, the defendant had just murdered her three children and, after calling police from another location, encouraged law enforcement to go with her to check on their welfare without specifically telling the officer what she had done.  She was also told that she was not under arrest, and was transported without handcuffs.  (United States v. Charley, supra, at pp. 1077-1082.)

"(T)he police may move a suspect from the location of the initial stop without converting the stop into an arrest when it is necessary for safety or security reasons."  (United States v. Ricardo D., supra, citing Florida v. Royer (1983) 460 U.S. 491, 504-505 [75 L.Ed.2^nd 229, 241-242].)

Non-consensual transportation necessary to continue the detention out of the presence of a gathering, hostile crowd, held to be lawful under the circumstances.  (People v. Courtney (1970) 11 Cal.App.3^rd 1185, 1191-1192.)

See also Michigan v. Summers (1981) 452 U.S. 692, 702, fn. 16 [69 L.Ed.2^nd 340, 349], where it was held that moving the detained suspect from the walkway in front of his home into the house, where he was held while the house was searched pursuant to a search warrant, was not considered constitutionally significant.

Temporarily handcuffing a smuggling suspect stopped at the International Border where escape routes were close by, particularly when the subject is told that he is not under arrest and that the handcuffs were merely for everyone's safety and would be removed momentarily, and then walking him to a security office about 30 to 40 yards (United States v. Bravo (9^th Cir. 2002) 295 F.3^rd 1002.) or 35 feet (United States v. Zaragoza (9^th Cir. 2002) 295 F.3^rd 1025.) away, is reasonable and does not convert a detention into an arrest. (See also United States v. Hernandez (9^th Cir. 2002) 314 F.3^rd 430.)

An individual is not arrested but merely detained when, at the border, he is asked to exit his vehicle, briefly handcuffed while escorted to the security office, uncuffed, patted down, and required to wait in a locked office while his vehicle is searched.  (United States v. Nava (9^th Cir. 2004) 363 F.3^rd 942.)

People v. Soun (1995) 34 Cal.App.4^th 1499; defendants removed from their vehicle at gunpoint, forced to lie on the ground, handcuffed, put into police vehicles and transported three blocks to a safer location:  Detention only, based upon the circumstances.

Gallegos v. City of Los Angeles (9^th Cir. 2002) 308 F.3^rd 987; where a 2-to-1 majority found that stopping a subject at gunpoint, handcuffing him, and then transporting him back to the scene of a crime to see if the victim could identify him, a procedure which took 45 minutes to an hour, was not an arrest, but was no more than an "investigative stop (that) worked as it should."