More vague requirements for "probable cause" when it comes to rape arrests?

[BOR]

Maybe arrested for purposes of Miranda ... But, certainly not for all purposes. While the force used was equivalent to an arrest, a release at that point would not have required documentation pursuant to PC 849(b) as to the police this was essentially a secure detention.

The SC defined arrest as this, in Terry v. Ohio:

...It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the stationhouse and prosecution for crime -- "arrests" in traditional terminology....

Mendenhall lists one way of a person can believe they are "Seized" is that there are multiple officers present. An arrest they said before is the "quintessential "seizure of the person" under Fourth Amendment jurisprudence."

Some case law from the 6th circuit indicates when a person is placed in the back of a police car it is an arrest, (emphasis added), but so is an UNjustified prolonged Terry Stop.


I posted it over on expertlaw, but I am at the library right now and do not have my notes with me.

Of course we both know that type of arrest, if we want to call it that, is not a right to search a person "incident to arrest".

 

[BOR]

Carl, here is that case I mentioned, it just popped into my head, although the facts are different sure, it outlines the difference between a Terry Stop an Arrest, see par. 19, but it cites cross jurisdictional case law.

19
When the agents placed Richardson in the back of the police car, they went beyond the bounds of Terry. Placing Richardson in the police cruiser not only constituted a seizure, as was mentioned earlier, but also crossed the line into an arrest.

As we not though, this was not a contemporary investigative tool, as the poster was investigated when the crime was allegedly committed, not days after.



949 F2d 851 United States v. Richardson | OpenJurist

 

[CdwJava]

None of which changes the fact that in the police report they will refer to it as a "detention" and not an "arrest" as there is a distinct difference in how they process them. It may be an arrest from most every legal perspective, but to the coppers involved, it can be a detention until they actually take him in.

We detain people in handcuffs all the time and then release them without any record of an "arrest." Semantics, perhaps, but there is the legalese and there is the practical application of the law. And I suspect the case law that differentiates the two is doing so for purposes other than what to call the seizure ... likely, it was to determine whether or not Miranda or a search incident to arrest was applicable, not whether or not the act deserved the title of an arrest or a detention.

So, I will concede that the law may have considered this an arrest, but I reiterate that to the police this was a detention and that will be how they articulate it in their report. Maybe one day they will change police training 101 and then modify or add to PC 849 or PC 853.6 to reflect a new policy in documenting releases. Until then, we will continue to affect detentions in such a manner.

 

[tranquility]

So, I will concede that the law may have considered this an arrest, but I reiterate that to the police this was a detention and that will be how they articulate it in their report. Maybe one day they will change police training 101 and then modify or add to PC 849 or PC 853.6 to reflect a new policy in documenting releases. Until then, we will continue to affect detentions in such a manner.

Well, you better write in the Probable Cause for the "detention" in the report too. While we all know the difference between Probable Cause required for arrest and Reasonable Suspicion required for detention is amorphous at best, someday a clever person will sue the police for false arrest and/or violation of constitutional rights for the error.

 

[CdwJava]

Well, you better write in the Probable Cause for the "detention" in the report too. While we all know the difference between Probable Cause required for arrest and Reasonable Suspicion required for detention is amorphous at best, someday a clever person will sue the police for false arrest and/or violation of constitutional rights for the error.

It has happened ... at least so far as it has been resolved to address issues of searches and interrogation. I have yet to ever hear of an attempt to convert a detention into a civil rights violation because it also might have met at least one definition of an arrest. But, if the law were cut and dry there would be no need for the courts.

 

[tranquility]

It has happened ... at least so far as it has been resolved to address issues of searches and interrogation. I have yet to ever hear of an attempt to convert a detention into a civil rights violation because it also might have met at least one definition of an arrest. But, if the law were cut and dry there would be no need for the courts.

Since the "one definition" has to do with the 4th amendment, the civil rights violation would be the violation of the constitutional rights of the person. Specifically, that 4th amendment.

I suspect the reason there are not more suits is because of the level of damages.

 

[BOR]

It has happened ... at least so far as it has been resolved to address issues of searches and interrogation. I have yet to ever hear of an attempt to convert a detention into a civil rights violation because it also might have met at least one definition of an arrest. But, if the law were cut and dry there would be no need for the courts.

I don't remember any myself either? In the case here since the charge was rape, a violent crime, I would think the officers were justified to secure the person for safety reasons and potential fleeing purposes?

If you are being detained for a crime you may do 20 years or more for, it is possible even deadly force would be used by the detainee to escape!

What do you think Carl?

 

[CdwJava]

I don't remember any myself either? In the case here since the charge was rape, a violent crime, I would think the officers were justified to secure the person for safety reasons and potential fleeing purposes?

If you are being detained for a crime you may do 20 years or more for, it is possible even deadly force would be used by the detainee to escape!

What do you think Carl?

Deadly force would not be appropriate in this situation, but a secure detention is certainly an option even if not required. A prolonged detention will, of course, have to be justified and one would hope that they have sufficient probable cause to support an arrest, or, at least some good solid articulation as to why the detention was so prolonged.

 

[BOR]

I don't remember any myself either? In the case here since the charge was rape, a violent crime, I would think the officers were justified to secure the person for safety reasons and potential fleeing purposes?

If you are being detained for a crime you may do 20 years or more for, it is possible even deadly force would be used by the detainee to escape!

What do you think Carl?

Deadly force would not be appropriate in this situation, but a secure detention is certainly an option even if not required. A prolonged detention will, of course, have to be justified and one would hope that they have sufficient probable cause to support an arrest, or, at least some good solid articulation as to why the detention was so prolonged.

No, I did not mean deadly force by the cops, but if the person charged knew he might do 20 or better HE might use deadly force to escape.

If the law permits an order to exit the car for safety reasons, why would securing a rape suspect in the back of a car, even before they actually tell him he is under arrest, not be considered a safety measure??

Is there any case law in CA you know of where sitting a detainee in the back of a police car before the words are uttered, an arrest.

 

[tranquility]

Is there any case law in CA you know of where sitting a detainee in the back of a police car before the words are uttered, an arrest.

All the cases I provided on sitting in the back of a locked police car are controlling in California.

People v. Natale 77 Cal.App.3rd 568
United States v. Parr 843 F.2nd 1228
United States v. Ricardo D. 912 F.2nd 337

 

[CdwJava]

Detaining a potential violent felon in a police car is usually a reasonable measure. But, it will all depend on why and for how long? This fellow did not sound combative or threatening, but if there were only one or two officers a detention in the back of a car might be prudent. Around here, it is certainly not uncommon for prolonged detentions in car.

 

[tranquility]

That is not the criteria of the cases.

 

[CdwJava]

Well, until someone says we cannot detain in cuffs and in the back of a patrol car, it shall continue to be common practice. Certainly issues might arise when it comes to searches, potentially unlawful detentions (due to time and other factors) and statements (Miranda), but it is and has been common practice for the 20 years of my career and don't see it changing any time soon.

Real life examples include field detentions of robbery suspects, auto theft suspects, shoplifters, assault suspects, etc. Detentions in cuffs and on the curb or in a vehicle are commonplace in such situations as other officers are working the scenes, identifying witnesses, preparing in field lineups, etc.

So, until such time as we are told that we can NOT do it, we shall continue to do so.

 

[tranquility]

So, until such time as we are told that we can NOT do it, we shall continue to do so.

You can do it. It's called an arrest. Unless, as I wrote before:

absent "some reasonable justification."

The cases provided, which are controlling in California, define such justification.

 

[CdwJava]

You can do it. It's called an arrest. Unless, as I wrote before:
The cases provided, which are controlling in California, define such justification.

And we shall continue to write it as a "detention" until told otherwise. Since an arrest requires a greater burden of proof then a detention, and release after an arrest generally requires a disposition pursuant to PC 849 or 853.6, these shall continue to be termed by law enforcement as a detention until state law or case law requires us to do otherwise. Whether this is proper or not is debatable, but it is the reality of how the system currently works.