Written by attorney James Nesci

When does an arrest occur? Is it only when the police say "You're Under Arrest"?

Being placed under arrest always occurs when the police say the words: "You're under arrest." But their actions can also amount to an arrest. The determination of when someone is placed under arrest will factor in to whether evidence which was siezed or statements which were made are admissible at trial. There are four factors for any court to consider when determining whether someone has been placed under arrest.

1. The Test is Whether a Reasonable Person Would Not Feel Free to Leave

When deciding if an arrest occurred, a significant consideration is the extent to which freedom of movement is curtailed and the degree and manner of force used. State v. Waicelunas, 138 Ariz. 16, 672 P.2d 968 (App. 1983); United States v. Beck, 598 F.2d 497 (9th Circuit 1979). Another significant factor is the display of official authority such that "a reasonable person would have believed he was not free to leave." State v. Winegar, 147 Ariz. 448, 711 P.2d at 587 quoting Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). Circumstances in which a reasonable person would not feel free to leave include those where the person was read Miranda warnings, placed in handcuffs and then placed in a patrol vehicle. State v. Rowland, 172 Ariz. 182, 836 P.2d 395 (App.1992). A person's freedom of movement is interrupted and restricted when that person is handcuffed and placed in a patrol vehicle. Id. Even where a suspect voluntarily agrees to have his freedom of movement restricted, such as when he "would have given his consent to be taken to the hospital," the suspect would not believe he is free to leave. Id.

2. Physical Restraint is Not a Requirement for an Arrest

While an arrest definitely occurs with the use of physical restraint, an arrest certainly may occur without physical restraint by the police or even the "magic words" You're under arrest being uttered. The varied forms of arrest without physical restraint or an express statement are documented as follows:

United States v. Morrison 546 F.2d 319, 320 (9th Cir. 1976) (Seizure occurs when police officer first communicates the command to halt). United States v. Palmer, 603 F.2d 1281 (8th Cir. 1979) (Police officers see suspect walking down a residential street. Action of the officer of waiving his hand and calling defendant to come over towards patrol car was a seizure). Johnson v. United States, 468 A.2d 1325 (D.C. App. 1983) (Officers order of driver of vehicle to halt, come here, police officer, was a seizure under the Fourth Amendment). United States v. Davis, 94 F.3d 1456 (10th Cir. 1986) (Officers ordered suspect to stop, take hands out of pockets, and escorted accused to a police car constituted seizure). United States v. Wood, 981 F.2d 536 (D.C. Cir. 1992) (Officers ordered suspect to halt right there, stop, constituted seizure). People v. Boodle, 46 N.Y. 2d 398, 391 N.E. 2d 1329 (1979) (Order by police officer to keep hands where I can see them amounted to seizure). Brown v. Texas, 443 U.S. 47 (1979) (Officers asking suspect for identification and to explain what he was doing in an alleyway constituted seizure). State v. Jones, 283 S.E. 2d 483, (1983) (Seizure occurred when officer ordered man to step back from the vehicle with his hands in plain view). United States v. Bowles, 625 F.2d 526 (5th Cir. 1980) (Agent sees suspect and others engaged in suspicious activity. Suspect starts walking down hallway in airport. Agent’s action of walking past the accused, showing his identification, and asking him if he could talk to him for a moment, while identifying himself as a narcotics agent amounted to a seizure). United States v. Turpin, 920 F.2d 1377 (8th Cir. 1990) (Seizure occurred when officer with drug-sniffing dog displayed credentials and requested that suspect sit down). United States v. Green, 783 F.2d 1364 (9th Cir. 1986) (Seizure occurred when suspects told to put hands on car, officers’ weapons drawn).Commonwealth v. Houle, 35 Mass. App. 474, 622 N.E. 2d 638 (1993) (Seizure occurred when officer asked accused if his name was "Bill," and upon seeing something in the accused’s mouth ordered that he spit it out).

3. An Arrest Occurs When there is a Show of Force by Police

Seizure justified under the Terry standards can soon become a full-blown arrest requiring probable cause when the seizure is other than momentary. For instance, when the accused is ordered to halt and lie face down, on the street, this conduct amounts to an arrest and not a temporary detention, United States v. Delgadill-Velasquez, 856 F.2d 1292 (9th Cir. 1988). United States v. Del Vizo, 918 F.2d 821 (9th Cir. 1990) (Officer’s stop a of vehicle and order for defendants to get out at gunpoint and forced to lie in the street while handcuffed was an arrest).

4. Passage of Time may Convert a Detention into an Arrest

The simple fact that the accused believes that he would be detained for a lengthy period of time without freedom to leave can be considered an arrest without actual force being used, See, Florida v. Royer 460 U.S. 491, 103 S.Ct. 139, 75 L.Ed 2d 229 (1983); State of Arizona v. Winegar, 147 U.S. 440, 711 P.2d 579 (1985).

Washington v. Lambert, 98 F.3d 1181 (9th Cir. 1996) (Police action in shining search light into suspect’s car, handcuffing occupants and placing them in the back of a patrol car for five to twenty-five minutes amounted to an arrest).

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