What Constitutes an Arrest?

Overview

An arrest is a “seizure” under the Fourth Amendment.  Clearly, handcuffing a suspect and placing him or her into a jail is an arrest – that’s easy.  But what police action short of that would amount to an arrest.  When determining whether there has been a seizure of the person, experts have applied the so-called Mendenhall-Royer test.  In applying this test the key question is whether “a reasonable person would have believed that he was not free to leave.”  As we will discuss in later sessions, a detention requires only reasonable suspicion, but an arrest requires probable cause. As we will discuss, officers can sieze (detain) a citizen on something less than probable cause (reasonable suspicion) because that seizure is minially intrusive. So, unless the seizure of the person amounts to an investigative detention, consider it an arrest. Some of the discussions in the legal supplement may illustrate these points better.

The Objective Test

The test is an objective test.  That is, the subjective intent of both the officer and the suspect does not control, but simply what a reasonable person would believe. 

De Facto Arrest

Let’s suppose that an officer intends to detain an individual.  And based on the dangers of the person or the environment, the officers transport this detained suspect to the police station for a few hours – with no intent to stick him in jail – in fact, the suspect is released without ever being booked.  Even though this conduct may be “reasonable” under the Fourth Amendment and the thought of arrest is never spoken or contemplated, these facts would likely amount to a de facto arrest.  As such, it would require probable cause.

Consent

So, just as someone can consent to a search, a person can consent to being transported to the police station for a matter of hours … i.e., consent. 

Legal Supplement

United States v. Mendenhall, 446 U.S. 544 (1980),

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. 

Kaupp v. Texas, 538 U.S. 626 (2003),

A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, "taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" 

Nor is it significant, as the state court thought, that the sheriff's department "routinely" transported individuals, including Kaupp on one prior occasion, while handcuffed for safety of the officers, or that Kaupp "did not resist the use of handcuffs or act in a manner consistent with anything other than full cooperation." The test is an objective one, see, e. g., Chesternut, , and stressing the officers' motivation of selfprotection does not speak to how their actions would reasonably be understood. As for the lack of resistance, failure to struggle with a cohort of deputy sheriffs is not a waiver of Fourth Amendment protection, which does not require the perversity of resisting arrest or assaulting a police officer.

Florida v. Royer, 460 U.S. 491 (1983),

Several factors led the court to conclude that respondent's confinement was tantamount to arrest. Royer had

"found himself in a small enclosed area being confronted by two police officers -- a situation which presents an almost classic definition of imprisonment."

The detectives' statement to Royer that he was suspected of transporting narcotics also bolstered the finding that Royer was "in custody" at the time the consent to search was given. Ibid. In addition, the detectives' possession of Royer's airline ticket and their retrieval and possession of his luggage made it clear, in the District Court of Appeal's view, that Royer was not free to leave. 

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions

What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions. The officers had Royer's ticket, they had his identification, and they had seized his luggage. Royer was never informed that he was free to board his plane if he so chose, and he reasonably believed that he was being detained. At least as of that moment, any consensual aspects of the encounter had evaporated …

U.S. v. Chaffen, 87 F.2d 920 (8th Cir. 1978),

The Court held that although the officer testified that the defendant would not be allowed to leave had he decided to do so, the defendant still consensually accompanied officers to the scene of the bank robbery and the defendant’s contact with officers did not amount to an arrest. 

City of Seattle v. Sage, 523 P.2d 942 (Wash. 1974),

The defendant was determined to be under arrest although he was unconscious and unaware of any restraint (thereby allowing a blood draw subsequent to the defendant’s “arrest” under state statute).

All Internal Citations Omitted