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Ed. Note: This is the third in a series of occasional articles that identify and debunk some of the greatest myths in police law. The earlier articles are available at www.hendonpub.com, click Resources, then Article Archives.
Common misunderstandings in the police community about the law are a result of many factors, not least of which is inconsistency among our own trainers, as well as prosecutors and judges. It is important, though, for supervisors and managers to accurately distinguish between common misunderstandings and correct law so that they apply correct standards in their assessments of officers.
Officers need to make the same distinction so they are able to properly apply the law. Naturally, our training should reflect the law as it is - not as it might be pervasively misunderstood. Each agency should decide and announce its philosophy toward prosecutorial and judicial agendas that may be different, often more restrictive of police behavior, than the law actually is.
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,...