Distinguishing Between A "Stop" Or "Detention" and An "Arrest"

• Jurisdiction: Maryland

XIV. Distinguishing between a "stop" or "detention" and an "arrest"

In both a stop or detention and an arrest, the defendant is not free to go. Intrusions less than a full custodial arrest at common law are a stop or detention, and intrusions that are the equivalent of a full custodial arrest at common law are arrests. Whether an intrusion is a "stop" or an "arrest" is determined based on totality of the circumstances. Ferris, 355 Md. at 377-78.

In Longshore v. State, 399 Md. 486, 515-16 (2007), the Court of Appeals held that the distinction between a Terry stop and an arrest is not defined simply by the length of detention, although the length of the detention is an important factor. It is also determined based on the investigative activities during the detention and whether the defendant was removed to a detention or interrogation area. There is no bright line to determine when a Terry stop becomes an arrest requiring probable cause. Each detention is evaluated on a case-by-case basis.

In Johnson, 154 Md. App. at 296-99, the Court of Special Appeals addressed the difference between an investigatory stop and an arrest, noting factors such as (a) whether force is used to effectuate the intrusion and the amount of force; (b) the length of the intrusion; (c) the investigative activities of police during the intrusion; and (d) whether the suspect was moved from the place of the initial intrusion to another place.

A. Force used to effectuate the seizure

1. Level of force displayed may elevate a stop or detention to an arrest

Certain levels of police display of force may rise to the level of arrest and require probable cause, e.g., (a) placing a person in handcuffs; (b) placing a person on the ground; (c) placing a person in a police vehicle; and/or (d) encircling a person with police vehicles. No one factor is dispositive. See Longshore, 399 Md. at 515-16.

In Swift v. State, 393 Md. 139, 156-58 (2006), the Court of Appeals held that the defendant was not arrested because the police vehicle merely blocked the defendant's vehicle but did not prevent the defendant from leaving. In Dixon v. State, 133 Md. App. 654, 668-70 (2000), the Court of Special Appeals held that the defendant was arrested when police (a) blocked his exit from a parking garage; (b) removed him from his vehicle; and (c) placed him in handcuffs.

2. A greater level of force is permissible if there are special circumstances

Special circumstances may cause what would have been an arrest to not be an arrest, e.g., preventing flight or protecting police. In Longshore, 399 Md. at 513, the Court of Appeals held that the defendant was arrested when he was required to exit his vehicle and was placed in handcuffs, because there were no special circumstances making the use of handcuffs anything less than a full custodial arrest. Where force is used during an investigative detention, the burden is on the State to show the existence of special circumstances that will prevent the detention from being considered an arrest requiring probable case. In Elliot v. State, 417 Md. 413 (2010), the Court of Appeals held that police use of a "hard take-down," without special circumstances, was an arrest. The Court stated:

The State misinterprets our limited approval of hard take-downs. The temporary detention by police of persons found in and around the premises "to

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