§ 9.01 "Arrest": Overview

• Jurisdiction: United States

§ 9.01 "Arrest": Overview¹

[A] Definition

The term "arrest" is often used in court opinions and statutes, but is rarely defined. Indeed, the word "arrest" is sometimes modified by adjectives such as "formal,"²"custodial,"³ and "traditional,"⁴ from which one may infer that some arrests are "informal," "noncustodial," and "nontraditional."

Operationally (and in the traditional sense of the term), a person is "arrested" when she is taken into custody by lawful authority, for the purpose of holding her in order to answer for a criminal charge. Nonetheless, a few states by statute or judicial opinion characterize the temporary detention of a person for the purpose of issuing a summons or to write a traffic citation as an arrest, albeit a noncustodial one.⁵ This use of the term is uncommon. Unless otherwise specified in this Text, the term "arrest" is used in the operational taken-into-custody sense of the term.

[B] "Arrest" versus "Seizure"

An arrest, which must always be founded on probable cause,⁶ constitutes a "seizure" of the person, as that term is used in Fourth Amendment jurisprudence.⁷ However, although all arrests are Fourth Amendment seizures, not all seizures constitute arrests. Use of the word "arrest" ordinarily implies that the individual's freedom of movement has been curtailed for an indefinite period — at least long enough so that she can be taken to police headquarters for formal booking — whereas a person can be detained against her will for a brief time — and, thus, be seized — without being "arrested."

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Notes:

^[1] See generally David A. Moran, Traffic Stops, Littering Tickets, and Police Warnings: The Case for a Fourth Amendment Non-Custodial Arrest Doctrine, 37 Am. Crim. L. Rev. 1143 (2000).

^[2] E.g., Berkemer v. McCarty, 468 U.S. 420, 425 (1984).

^[3] E.g., United States v. Robinson, 414 U.S. 218, 235 (1973).

^[4] E.g., Dunaway v. New York, 442 U.S. 200, 212 (1979).

^[5] E.g., People v. Bland, 884 P.2d 312, 315-16 (Colo. 1994); Thomas v. State, 614 So. 2d 468, 470-71 (Fla. 1993).

^[6] See Dunaway v. New York, 442 U.S. 200 (1979); Henry v. United States, 361 U.S. 98 (1959).

^[7] See § 7.03, supra.