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Back to Archives | Back to December 2004 Contents 

Chief's Counsel

Involuntary Movement May Create Arrest

By Randy Means, Thomas and Means, LLP

se of the investigative detention, or Terry stop, allows officers to detain people based on only reasonable suspicion but requires great care to ensure that the investigative detention does not evolve into an arrest without probable cause.

One of the first U.S. Supreme Court cases to deal with this issue was Dunaway v. New York, where the defendant confessed to a robbery-homicide after being picked up for questioning and taken to police facilities.1 The Supreme Court found that Dunaway’s confession was inadmissible because when police required him to leave his home and go to the police facilities he was in essence arrested without probable cause. The Court reasoned that “detention for custodial interrogation regardless of its label intrudes so severely on the interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest.”

In Florida v. Royer the Court again dealt with the issue of involuntary movement of suspects during so-called investigative detentions.2 In Royer the defendant was detained in an airport concourse based on reasonable suspicion (but not probable cause) that he was a drug courier. The Court (plurality) found that the detention “matured” into an illegal arrest when Royer was required to go with police from the public concourse to a small police-dominated room off the concourse. Importantly, the Court commented that articulated safety and security reasons could sometimes cause an exception to their emerging rule.

In Hayes v. Florida fingerprint evidence in a burglary-rape case was found to be inadmissible because the police, without probable cause to arrest, required the defendant to leave his home and go to police facilities for fingerprinting.3 The Court cautioned that “the line is crossed when police, without probable cause or a warrant, . . . remove a person from his home or other place he is entitled to be and transport him to the police station where he is detained, although briefly, for investigative purposes.”

The most recent Supreme Court case on this issue is Kaupp v. Texas, where, armed with reasonable suspicion but not probable cause to arrest, police went at 3:00 a.m. to the home of a 17-year-old murder suspect, woke him, and told him, “We have to talk.”4 He responded, “OK,” and was transported to police facilities and interrogated. His resulting confession was found to be the product of an illegal arrest. The Court ruled that the defendant’s response of “OK” to the officer’s “We have to talk” did not make the contact consensual. Rather, according to the Court, the defendant submitted to the officer’s “show of authority.”

The Model Code of Pre-Arraignment Criminal Procedure has this to say about the matter of required movement of seized persons: absent probable cause to arrest, “an officer is not . . . entitled to order the person to come to a police station or to go on a 20-minute ride into the country or across town.”

Professor Wayne LaFave, in his preeminent treatise on search and seizure, states:

It seems clear that some movement of the suspect in the general vicinity of the stop is permissible without converting what would otherwise be characterized as a temporary seizure into an arrest. It is equally clear, however, that police do not have unlimited power to move a suspect subjected to a Terry-type stop.5
In summary, an officer may detain a person based solely on reasonable suspicion for a limited time to conduct a brief investigation. However, if during the detention the suspect is moved involuntarily (that is, without being offered a choice) from one location to another, the detention likely will be deemed an arrest requiring probable cause. The exception to this rule seems to be short movement within one environment for articulated safety and security reasons.

Although Supreme Court majority opinions have dealt exclusively with situations in which a person was required to leave his home and accompany police to law enforcement facilities, other high courts and legal scholars have opined that even requiring someone to leave one public area and go with police to another public area will convert an investigative detention into an arrest requiring probable cause. Consequently, prudence may dictate that alternate investigative procedures be used rather than involuntary movement of persons seized based only on reasonable suspicion, even for short movements involved in show-up identifications and the like.

1 442 U.S. 2000 (1979).
2 460 U.S. 491 (1983) (plurality opinion).
3 470 U.S. 811 (1985).
4 123 S. Ct.1843 (2003).
5 Wayne LaFave, Search and Seizure, 3rd ed., vol. 3 (Eagan, Minn.: West, 1996), 75-76.

Editor’s note: Rob Cerullo contributed to this article.


From The Police Chief, vol. 71, no. 12, December 2004. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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