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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

ARREST

To stop; to seize; to deprive one of his liberty by virtue of legal authority.

Whether a detention was an investigatory stop or a full-blown arrest is a question of law subject to de novo review. See U.S. v. Diaz-Lizaraza, 981 F.2d 1216, 20-22 (11th Cir.'93). Courts have stated that '[i]n determining 'when' a person is arrested, we ask at what point, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed he [she] was not free to leave.' ' U.S. v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.'89) (quoting U.S. v. Hammock, 860 F.2d 390, 93 (11th Cir.'88)); see also U.S. v. Vargas, 643 F.2d 296, 98 (5th Cir. Unit B'81); 2 John Wesley Hall, Jr., Search and Seizure 22:3 at p.87 (2d ed. '93). Strictly speaking, this particular formulation of the standard for determining whether an arrest has occurred is not a completely accurate statement of the law, for 'an investigatory stop is not an arrest despite the fact that a reasonable person would not believe he is free to leave.' (U.S. v. Hastamorir, 881 F.2d at 1556). This is so because even during an investigative stop, which by definition is not an arrest, it would be clear to a reasonable person so detained that he was not free to leave during the stop. See 2 LaFave, Section(s) 5.1(a) at 393 (1994 Supp. at 135).

It appears that some Court's unfortunate articulation of the 'reasonable person/free to leave' test for judging arrests resulted from collapsing the Royer-Mendenhall standard for judging when a 'seizure' occurs into the test governing when such a seizure qualifies as an arrest. See United States v. Hammock, 860 F.3d at 393 (stating that an arrest occurs when ' 'a reasonable person would have believed he was not free to leave.'') (U.S., 446 U.S. at 554 (Stewart & Rehnquist, JJ., concurring)).

Of course, whether a seizure has occurred and whether an arrest has occurred are separate and distinct inquiries, the latter class of detention being a subset of the former. See 2 LaFave, Section(s) 5.1(a) at 392-93; Richard A. Williamson, The Dimensions of Seizure: The Concepts of 'Stop' and 'Arrest', 43 Ohio St.L.J. 771, 802-17 (1982) (hereinafter 'Williamson').

So, what is the appropriate standard for judging whether an arrest has occurred, as opposed to a mere investigatory stop? No brightline test separates an investigatory stop from an arrest, and that consequently the question whether a seizure constitutes an arrest is one that one can only be answered on a case-by-case basis in light of 'all the circumstances.'

An arrest occurs whenever a reasonable person 'would have understood the situation to constitute a restraint on freedom of movement of the degree ... [ordinarily] associate[d] with [a] formal arrest.' U.S. v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.'88) (quoting U.S. v. Bengivenga, 845 F.2d 593, 596(5th Cir.), cert. denied, 488 U.S. 924 ('88)); see George E. Dix, Nonarrest Investigatory Detention in Search and Seizure Law, 1985 Duke L.J. 849, 927 ('Dix'); accord Berkemer v. McCarthy, 468 U.S. 420, ('84) (a person is 'in custody' for Miranda purposes when he is 'subjected to the restraints comparable to those associated with a formal arrest').

The inquiry is simply whether a reasonable person would have believed that he was 'under arrest' (as that term is commonly understood) at the time of his seizure. U.S. v. Patterson, 648 F.2d 625, 632 (9th Cir.'81); see generally Williamson, 43 Ohio St.L.J. at 815-16. Thus, if the circumstances surrounding a seizure would be viewed by a reasonable person as indicating that he would not be free to leave for an indefinite, or for an extended period of time, then that person has been placed under arrest. See 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure Section(s) 3.8 at 297 (1984) ('[A] stopping differs from an arrest not in the incompleteness of the seizure but in the brevity of it.'); cf. U.S. v. Sharpe, 470 U.S. 675, 684-86, ('85) (noting that an investigative stop implies a 'temporary' detention, typically of short duration); Terry v. Ohio, supra, at 26, (noting that an arrest implies 'future interference with the individual's freedom of movement' beyond that attendant with an investigative stop); U.S. v. Mosquerra-Ramirez, 729 F.2d 1352, 56 (11th Cir.'84) (recognizing this temporal distinction between arrests and investigative stops).

It is not the actual length of time of the detention that is the key here, but, rather, whether a reasonable person would perceive, while detained, on the basis of the totality of the circumstances (including, very importantly, the actions and representations of the seizing officers, see U.S. v. Brunson, 549 F.2d 348, 58 (5th Cir.), cert. denied, 434 U.S. 842 ('77)), that he is 'under arrest' as commonly understood, in that he is likely to be detained for an indefinite or extended period of time.

An arrest can occur in an instant. An officer can put his hand on a person and state that that person is 'under arrest.' See U.S. v. Moreno, 897 F.2d 26, 31 (2d Cir.), cert. denied, 497 U.S. 1009, ('90); cf. California v. Hodari D., supra, 499 U.S. at 626, (At common law, '[a]n arrest require[d] either physical force ... or, where that was absent, submission to the assertion of authority.'). An arrest can also occur in an instant even if the officers do not use that magic phrase. Cf. U.S. v. Setzer, 654 F.2d 354, 57 (5th Cir. Unit B. '81), cert. denied, 459 U.S. 1041 ('82).

It may be argued that the standard of 'a reasonable person believing he is under arrest' will have its own difficulties, see Dix, supra, 1985 Duke L.J. at 929-31, but the common man or woman in this country, using common sense, understands this concept. Ordinarily, when a highway patrolman stops and detains a person for speeding, that person would not reasonably believe he or she is under arrest. See Pennsylvania v. Mimms, 434 U.S. 106 ('77) (police ordering an occupant out of a vehicle following a traffic stop does not result in an arrest).

Similarly, if an officer stops a person on the street and states, 'I just want to ask you some questions,' that person would not, at that moment, reasonably believe that he or she is under arrest. See Florida v. Rodriguez, 469 U.S. 1, 5-6 ('84) (such an encounter is not even a 'seizure' under the Fourth Amendment).

But if an armed officer, wearing a raid jacket, violently seizes a person, forces him to the ground, and places him in handcuffs (or other restraints), would not that person reasonably believe he was under arrest? Of course he would. Cf. U.S. v. Tookes, 633 F.2d 712, 715 (5th Cir. Unit B. '80). The difference is that in the first two examples the totality of the circumstances would lead the person detained to believe that his detention would be brief, whereas in the last example there is nothing in the situational context that would lead him to reasonable believe that he would soon or very shortly be permitted to leave and go on about his business.

When weighing the various factors that may distinguish an investigative stop from an arrest, e.g. the number of officers present, the officer's show of force, and the use of physical restraints, see U.S. v. Hammock, supra, at 393, such an inquiry must, in the end, be guided by ''common sense and ordinary experience.' ' U.S. v. Hastamorir, supra, at 1556 (quoting U.S. v. Espinosa-Guerra, 805 F.2d 1502, 09 (11th Cir.'86)) (further citation omitted). And in the 'common sense' view, when an individual is directed to leave his house (or that of a friend) by the police, is then immediately handcuffed by armed officers, and is forced to lie down on the ground in the presence of almost a dozen FBI agents wearing raid jackets, in a neighborhood that has been cordoned off by marked and unmarked police vehicles, such a person could not reasonably believe that he would, soon or shortly, be free to leave, and, therefore, he would reasonably believe that he has been subject to an arrest, rather than a mere investigatory stop. See U.S. v. Hawkins, 59 F.3d 723, 727 (8th Cir.'95) (suspect under arrest when removed from his bedroom and handcuffed in the hallway); U.S. v. Morgan, 743 F.2d 1158, 1164 (6th Cir.'84) (suspect under arrest when ordered to exit his house by several police officers who had surrounded his house), cert. denied, 471 U.S. 1061 ('85); U.S. v. Williams, 630 F.2d 1322, 1324 (9th Cir.) (same under similar facts), cert. denied, 449 U.S. 865 ('80); see also Oliveira v. Mayer, 23 F.3d 642, 645-46 (2d Cir.'94) (suspect under arrest when he was handcuffed by armed officers after being told to exit his vehicle), cert. denied, 115 S.Ct. 721 (1995); U.S. v. Anderson, 981 F.2d 1560, 65-66 (10th Cir.'92) (same under similar facts); U.S. v. Del Vizo, 918 F.2d 821, 824-25 (9th Cir.'90) (same); U.S. v. Gentry, 839 F.2d 1065, 1070 (5th Cir.'88) (same).

An arrest does not necessarily and automatically result only from the use of physical restraints (e.g., handcuffs), U.S. v. Hastamorir, supra, at 1557; U.S. v. Kapperman, 764 F.2d 786, 790 n. 4 (11th Cir.'85), or only from the officers' show of force (e.g. drawing their weapons), U.S. v. Roper, 702 F.2d 984, 988 (11th Cir.'83), it cannot be seriously doubted that these factors, when used in conjunction, would ordinarily lead a reasonable person to believe that he is under arrest, cf. 2 LaFave, supra, Section(s) 5.1(a) at 390-91; 3 id. 9.2(d) at 366-67, especially when such a seizure follows directly on the heels of an official directive, or even a 'request,' to leave the sanctuary of one's home.

Under one view, an arrest under the Fourth Amendment, would only occur when the police recite the magic words, 'You are now under arrest,' or perhaps after the passage of a considerable period of time. Such a result is plainly inconsistent with the precedent of the Supreme Court, Dunaway v. New York, 442 U.S. 200, 212-13 ('79) (whether a suspect was told that he was 'under arrest' is irrelevant to determining whether he was, in fact, under arrest).

When it is clear that the officers have resorted to such restrictive seizures of individuals (handcuffing them at gunpoint) in order to investigate their suspicions of prior criminal activity, the detention of the suspects is sufficiently serious to constitute an arrest requiring probable cause, even if the officers did not formally advise the suspects that they were 'under arrest' (or even if the officers did not intend to effect a 'formal' arrest). U.S. v. Diaz-Lizaraza, supra, at 1221-22; see also U.S. v. Vargas, supra, at 298.

Arrest In Civil Cases, Practice. An arrest is the apprehension of a person by virtue of a lawful authority, to answer the demand against him in a civil action.

To constitute an arrest, no actual force or manual touching of the body is requisite; it is sufficient if the party be within the power of the officer, and submit to the arrest. Barewords, however, will not make an arrest, without laying the person or otherwise confining him. It is necessarily an assault, but not necessarily a battery.

Arrests are made either on mesne or final process. An arrest on mesne process is made in order that the defendant shall answer, after judgment, to satisfy the claim of the plaintiff; on being arrested, the defendant is entitled to be liberated on giving sufficient bail, which the officer is bound to take. 2. When the arrest is on final process, as a ca. sa., the defendant cannot generally be dis charged on bail; and his discharge is considered as an escape.

In all governments there are persons who are privileged from arrest in civil cases. In the United States this privilege continues generally while the defendant remains invested with a particular character. Members of congress and of the state legislatures are exempted while attending the respective assemblies to which they belong parties and witnesses, while lawfully attending court; electors, while attending a public election; ambassadors and other foreign ministers; insolvent debtors, when they have been lawfully discharged; married women, when sued upon their contracts, are generally privileged; and executors and administrators, when sued in their representative characters, generally enjoy the same privilege. The privilege in favor of members of congress, or of the state legislatures, of electors, and of parties and witnesses in a cause, extend to the time of going to, remaining at, and returning from, the places to which they are thus legally called.

The code of civil practice of Louisiana enacts as follows, namely: Art. 210. The arrest is one of the means which the law gives the creditor to-secure the person of his debtor while the suit is pending, or to compel him to give security for his appearance after judgment. Art. 211. Minors of both sexes, whether emancipated or not, interdicted persons, and women, married or single, cannot be arrested. Art. 212. Any creditor, whose debtor is about to leave the state, even for a limited time, without leaving in it sufficient property to satisfy the judgment which he expects to obtain in the suit he intends to bring against him, may have the person of such debtor arrested and confined until he shall give sufficient security that be shall not depart from the state without the leave of the court. Art. 213. Such arrest may be ordered in all demands brought for a debt, whether liquidated or not, when the term of payment has expired, and even for damages for any injury sustained by the plaintiff in either his person or property. Art. 214. Previous to obtaining an order of arrest against his debtor, to compel him to give sufficient security that be shall not depart from the state, the creditor must swear in the petition which he presents to that effect to any competent judge, that the debt, or the damages which he claims, and the amount of which he specifies, is really due to him, and that he verily believes that, the defendant is about to remove from the state, without leaving in it and lastly, that he does not -take this oath with the intention of vexing the defendant, but only in order to secure his demand. Art. 215. The oath prescribed in the preceding article, ulay be taken either by the creditor himself, or in his absence, by his attorney in fact or his agent, provided either the one or the other can swear to the debt from his personal and direct knowledge of its being due, and not by what he may know or have learned from the creditor he represent. Art. 216. The oath which the creditor is required to take of the existence and nature of the debt of which he claims payment, in the cases provided in the two preceding articles, may be taken either before any judge or justice of the peace of the place where the court is held, before which he sues, or before the judge of any other place, provided the signature of such judge be proved or duly authenticated. Vide Auter action pendant; Lis pendens: Privilege; Rights. Arrest, In Criminal Cases. The apprehending or detaining of the person, in order to be forthcoming to answer an alleged or suspected crime. The word arrest is more properly used in civil cases, and apprehension in criminal. A man is arrested under a capias ad respondendum, apprehended under a warrant charging him with a larceny.

It will be convenient to consider, 1, who may be arrested; 2, for what crimes; 3, at what time; 4, in what places; 5, by whom and by what authority.

Who May Be Arrested. Generally all persons properly accused of a crime or misdeameanor, may be arrested; by the laws of the United States, ambassadors (q. v.) and other public ministers are exempt from arrest.

For what offences an arrest may be made. It may be made for treason, felony, breach of the peace, or other misdemeanor.

At What Time. An arrest may be made in the night as well as in the day time and for treasons, felonies, and breaches of the peace, on Sunday as well as on other days. It may be made before as well as after indictment found.

At What Places. No place affords protection to offenders against the criminal law; a man may therefore be arrested in his own house, (q.v.) which may be broken into for the purpose of making the arrest.

Who May Arrest And By What Authority. An offender may be arrested either without a warrant or with a warrant. First, an arrest may be made without a warrant by a private individual or by a peace officer. Private individuals are enjoined by law to arrest an offender when present at the time a felony is committed, or a dangerous wound given.

Peace officers may, a fortiori, make an arrest for a crime or misdemeanor committed in their view, without any warrant. An arrest may therefore be made by a constable, a justice of the peace, sheriff, or coroner. Secondly, an arrest may be made by virtue of a warrant, which is the proper course when the circumstances of the case will permit it.

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