I am often asked, in one form or another, by various people, when am I under arrest by the police. A simple rule is that an arrest occurs when a police officer grasps or applies physical force to an individual, regardless of whether he succeeds in subduing the individual, or, in the absence of physical force, when the officer asserts his authority, for the purpose of making an arrest, and the individual to be arrested submits to the officer’s show of authority. The subjective intent of the officer, i.e., whether he/she intended to arrest the person, is irrelevant. Courts have explained that ”[t]here can be no arrest without either touching or submission.” An arrest is ”the quintessential ‘seizure of the person’ under [the] Fourth Amendment” and must be justified by probable cause. However, not every seizure of the person constitutes an arrest. In Terry v. Ohio, 392 U.S. 1, 27 (1968) and its progeny, the Supreme Court created a loophole for a police officer may seize an individual briefly for investigatory purposes on less than probable cause.
The difference between a seizure for an arrest and a seizure on less than probable cause (an ”investigatory stop”) is ”in the duration and degree of intrusion resulting from the interference with the person’s freedom of movement.” Because an investigatory stop can be on less than probable cause, it must be brief in duration and limited in its scope and be based on a reasonable suspicion. Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an “inchoate and unparticularized suspicion or ‘hunch'”; it must be based on “specific and articulable facts”, “taken together with rational inferences from those facts”, and the suspicion must be associated with the specific individual.
Under Brown v. Texas, 443 U.S. 47, 52-53 (1979) a police officer does not have a reasonable, articulable suspicion that some crime had just taken place or was about to take place if a person intentionally refuses to report his name and residence address to a peace officer who has lawfully stopped him and requested the information. Henes v. Morrissey, 194 Wis. 2d 338, 353-54, 533 N.W.2d 802 (1995)(explaining that Wis. Stat. § 946.41 does not criminalize refusal to give information). Nor does a refusal to answer also would not have given rise to any reasonable suspicion of wrongdoing. Florida v. Bostick, 501 U.S. 429, 437 (1991) (noting that a refusal to cooperate, without more, does not furnish the objective justification needed for a detention or seizure). In the absence of any reasonable, articulable suspicion, police may ask questions, request identification, and ask for consent to search, “as long as the police do not convey a message that compliance with their requests is required.” 501 U.S. at 434-435. But refusal is one thing, giving false information is completely different.
What gets a cop interested in investigating you? If you are in a car, the legislature has created so many possible reasons for the police to stop you in the traffic code (including but not limited to equipment and non-jailable offenses like a seat belt violation or having an air freshener hanging from your mirror), that cops now have a right to stop you just about for any reason or no reason at all (what the law calls a “generalized warrant”). If you meet an officer in person, some of the main factors which courts have allowed police to conduct an investigation are: (1) flight; (2) suspicious movement; (3) threats and attempts to resist; and (4) intoxication. A simple rule to follow with the police on the street is to remember to be polite but firm. Do not argue with the police on the street but you do not have to consent to police requests to search your person or your property. Also remember, in real life, if a court has to decide who is telling the truth between you and a police officer, a court will usually pick the cop. An arrest usually results in the individual being taken to the stationhouse for booking procedures and the filing of criminal charges.
Probable Cause to Arrest
An arrest must be justified by probable cause. An arrest cannot be based on an invocation of a legal right. Probable cause to arrest an individual exists where the facts and circumstances are sufficient to warrant a reasonably prudent person in believing that the individual has committed or is committing an offense. Under this standard, the subjective intentions of the arresting officer are irrelevant in determining the validity of an arrest. This means that the officer’s ”subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” An arrest therefore is lawful under the Fourth Amendment even though the police officer was motivated by the desire to search for evidence of some other unrelated crime for which the officer lacked probable cause to arrest or search, and even though a reasonable officer would not have made the arrest in the absence of the officer’s invalid purpose. Similarly, an arrest is lawful under the Fourth Amendment when probable cause to arrest exists for a particular offense, even though that offense is not ”closely-related” to, and based upon the same conduct as, the offense stated by the arresting officer when he made the arrest or at the time of booking. Indeed, an arrest for an offense committed in the presence of an arresting officer is lawful for Fourth Amendment purposes despite its being unlawful under state law. As a general matter, probable cause to arrest will exist for an indefinite period, because the passage of time usually will not alter the historical facts upon which the determination of probable cause was made.
Remember, if you’re taken into custody by the police, you don’t have to use any magic words to let police officers know that you want to remain silent. You can simply say nothing in response to police questions. Or, after an officer gives you a Miranda warning, you can stop the questioning by saying something like:
I want to talk to an attorney.
I won’t say anything until I talk to an attorney.
I don’t have anything to say.
I don’t want to talk to you anymore.
I claim my Miranda rights.
Realize, however, officers must only provide Miranda warnings whenever they interrogate someone who is in custody. “Interrogation” includes not only express questioning, but also any words or actions that police officers should know are reasonably likely to elicit an incriminating response. Being “in custody” describes a situation in which a reasonable person in the suspect’s shoes would not feel free to leave. This means if you volunteer information to the police before or after being given Miranda warnings, the cop will write it down and the information will be used to prosecute you.