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Title: kneeling at the edge of ditch, waiting for the bullet
Source: Lew Rockwell
URL Source: [None]
Published: Feb 7, 2012
Author: Eric Peters
Post Date: 2012-02-07 09:49:23 by ghostdogtxn
Keywords: None
Views: 1280
Comments: 15

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#8. To: ghostdogtxn (#0)

The Myth of Investigative Detention Vs Arrest

Many officers have been taught that an arrest occurs whenever law enforcement creates a situation in which a subject is “not free to leave.” If that was a correct definition, every investigative detention, i.e., “Terry stop,” would be an arrest. Some officers have been taught that if they use any force whatsoever to restrain someone, they have arrested that person. If this statement was true, then an officer could not even grab someone’s arm during a “Terry stop” to prevent him from walking away.

In fact, in terms of federal constitutional law, neither of these teachings is a correct definition of arrest. However, these explanations correctly define a “seizure” of a person. A seizure of a person occurs whenever force is used or a person submits to a show of authority by police. Seizures of persons come in two forms: investigative detentions, AKA “Terry stops,” which require reasonable suspicion, and arrests, which require probable cause.

Arrest as a Federal Constitutional Concept

What, then, is a correct definition of arrest, for purposes of federal Constitutional law? An arrest is a seizure of a person in which the subject is 1) required to go elsewhere with police, or 2) deprived of his freedom of movement for more than a brief period of time, or 3) subjected to more force than is reasonably part of an investigative detention.

So, if an officer has said or done things that would cause a reasonable person to believe that he was not free to leave or to decline the contact with the police and either the subject is required to leave and go elsewhere with police or a detention persists for more than a short while, or more force is used than is reasonable to simply restrain someone, then that person has been arrested. Even if an officer does not intend to arrest the subject, the courts will likely determine that the interaction is in fact an arrest.

strepsiptera  posted on  2012-02-07   14:14:57 ET  Reply   Untrace   Trace   Private Reply  

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