Friday, January 29, 2010

Investigative Detention v. Arrest

Police officers remove a person from his vehicle at gunpoint, place the person on the ground, and handcuff his hands behind his back. Detention or Arrest? What follows is a short summary of this area of law, courtesy of the 7th District Court of Appeals (Amarillo).

The differences between an Investigatory Detention and an Arrest are the degrees of intrusion involved and the different legal justifications for each. The standard for distinguishing between the two is not always clear because the distinction rests on a fact-specific inquiry rather than clearly delineated criteria.

An investigative detention occurs when an officer lacks probable cause to arrest but nonetheless possesses a reasonable suspicion: that is, the officer is able to point to specific, articulable facts that, taken together with rational inferences from those facts, reasonably warrants the detention. The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring, or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to criminal activity. During an investigative detention, an officer may employ the force necessary to effect the reasonable goals of the detention: investigation, maintenance of the status quo, and officer safety. An officer may conduct a limited pat-down search of the outer clothing for weapons during an investigative detention if the officer fears for his safety or that of others.

An arrest, on the other hand, is a greater restraint upon a person's freedom to leave or move. If the degree of incapacitation appears more than necessary to simply safeguard the officers and assure the suspect's presence during a period of investigation, this suggests the detention is an arrest. Further, in the absence of a reasonable safety concern or need to maintain the status quo, an officer's use of force to secure a suspect is typically held to constitute an arrest.

To illustrate the confusion in this area of law, look at the following list of facts and try to guess whether the court held the intrusion to be an investigative detention or an arrest:

1 - One officer approaching the driver's side of a vehicle with a rifle, while another officer approached the passenger's side of the vehicle with a gun in hand.
2 - Suspect removed from car, patted-down, and handcuffed.
3 - Suspect escorted to the patrol car and handcuffed.
4 - Car boxed-in, approached with guns drawn, suspect placed on the ground and handcuffed.
5 - Suspect handcuffed while in the backseat of the patrol car.

The answers are at the bottom of the post. Did you get them right? I didn't. The courts came down differently in these examples because of the specific fact scenarios in each. Remember, whether a detention is an actual arrest or an investigative detention depends on the reasonableness of the intrusion under all the facts, as judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight.    

In some of the examples above, the officers were acting to simply protect themselves and maintain the status quo (ID), and in others they were not (Arrest). Additional factors to consider in determining the reasonableness of the detention include the nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the number of suspects present, and the reaction of each suspect.

This post probably didn't help clarify this issue for you as it didn't for me in writing it, but it should make one thing very clear - it all depends on the facts. You need to develop that facts as much as possible in order to show that that seizure was an Arrest. Then your client will receive the due process considerations that flow from an arrest.

1. ID, 2. ID, 3. ID, 4. A, 5. A