Volume 19, Issue 1 3-15-95.pdf

:GAL BULLETIN http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB 10.html LEGAL BULLETIN LOS ANGELES POLICE DEPARTMENT LEGAL AFFAIRS DIVISION - LEGAL TRAINING UNIT Volume 19, Issue 1 March 15, 1995 DISTINGUISHING BETWEEN DETENTIONS AND ARRESTS To minimize the risk of exposure to civil li...

:GAL BULLETIN http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB 10.html LEGAL BULLETIN LOS ANGELES POLICE DEPARTMENT LEGAL AFFAIRS DIVISION - LEGAL TRAINING UNIT Volume 19, Issue 1 March 15, 1995 DISTINGUISHING BETWEEN DETENTIONS AND ARRESTS To minimize the risk of exposure to civil liability, it is vitally important that officers understand the legal differences between a "detention" and an "arrest." A detention that lacks the requisite reasonable suspicion or a warrantless arrest made without sufficient probable cause may violate a suspect's civil rights. DETENTIONS THE REASONABLE SUSPICION STANDARD Detentions are temporary "seizures" of the person. Detentions are legally grounded on an officer's "reasonable suspicion" that an individual may be involved in potentially criminal activity. Legal detentions, also called "Terry stops," must be based on specific facts known to the officer at the time the suspect is~ detained. The officer is entitled to take into account the totality of the circumstances, and to make reasonable inferences from those circumstances, based on the officer's training and experience. Appellate courts use the standard that a detention occurs whenever a reasonable person would believe he/she is not free to disregard the police and just walk away. Officers should note that the test for a detention is objective. It is based on what a reasonable person would believe. The test is not subjective. or what the particular detainee believes when he or she is stopped. USE OF ENVIRONMENTAL FACTORS Certain factors, such as "nighttime, high crime area, or high narcotics area," will not suffice when used alone to justify a legal detention. Similarly, the identification of an individual as a gang member will not afford a sufficient basis for a detention. These factors, when used in conjunction with other suspicious circumstances, may be considered to establish reasonable suspicion to detain. THE USE OF FORCE OR PHYSICAL RESTRAINTS DURING A DETENTION ■f 7 -i.ir. oiv-t ;gal bulletin http://infoweb/Legal%20Affairs/Legal%20BulIetins/9-4-97/LB10.html The general rule is that the use of arrest-like restraints during a detention creates a "de facto” arrest. Black's Law Dictionary defines "de facto" as "a state of affairs which must be accepted for all practical purposes, but is illegal or illegitimate." Since an arrest requires probable cause, an officer must be careful not to create a de facto arrest when the officer has only reasonable suspicion to conduct a detention. An officer who is justified in detaining a suspect based on reasonable suspicion ordinarily would not be justified in using guns, handcuffs, or police car lock-ups during the stop. EXCEPTION: WHEN POLICE CAN USE RESTRAINTS DURING DETENTION Where dangerous criminality is suspected, police are allowed to use restraints or to display weapons "to maintain the status quo -momentarily" while investigating the situation. Officers frequently feel the need to use handcuffs, or to draw and point weapons during detention to protect their physical safety. This does not violate the Fourth Amendment so long as the safety measures employed are reasonable under the circumstances. Use of weapons, handcuffs, or police vehicle lock-ups will not automatically convert a legal detention into an illegal arrest. But since employment of these measures tends to suggest an arrest, an officer must carefully articulate why he/she used force or restraints in the particular situation. It is insufficient for an officer to attempt to justify force or restraints during a detention with the general phrase, "I handcuffed (drew my weapon, etc.) for officer safety." The officer should instead describe in the report the specific behavior or factors which caused the officer to feel that his/her safety was jeopardized. This will afford a reviewing court a basis for concluding that the officer acted reasonably under the circumstances in using force or restraints. If an officer does use arrest-like restraints or force during a detention, the use should be terminated at the earliest possible time. The shorter the time force is used the more likely it is that a reviewing court will fmd that the suspect was merely detained and not arrested. TIME LIMITATIONS A detention is a temporary seizure of a person and must last no longer than is necessary to carry out the purpose of the stop. An officer needs to be aware of how long a detention is lasting. A detention that is legal at its inception could become an illegal de facto arrest by extending beyond what is reasonably necessary under the circumstances. There is no specific maximum time that a detention may be maintained. Under some circumstances a detention can remain reasonable for a considerable time. Officers must continually monitor whether progress is being made toward clarifying the detainee's status. In other words, are the officers actively developing information that may lead to the detainee's arrest? If not, the detained person must be released. INFORMING THE SUSPECT OF HIS STATUS When a suspect is legally detained, an officer should, if practical, tell him/her that he/she is not under arrest. The fact that a suspect was advised he/she was not under arrest will be taken into account when determining whether a reasonable person under the same circumstances would have believed that they were under arrest. f3 3/26/02 3:36 PM IGAL BULLETIN http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB 10.html ARRESTS THE PROBABLE CAUSE STANDARD Probable cause to arrest exists when an officer has enough factual information to form an "honest and strong" suspicion that a person has committed a particular crime. Like a detention, the officer is entitled to the benefit of his/her training and experience to reach a conclusion. The courts realize that trained police officers will often be able to detect criminal activity where ordinary citizens would not. Forming "probable cause to arrest" requires more specific knowledge than does the forming of "reasonable suspicion to conduct a detention." This is appropriate under Fourth Amendment analysis because arrests involve greater infringement on personal liberty than do temporary detentions. CONCLUSION There is no single rule of law that identifies when a detention becomes an arrest. The, courts continue to resolve the issue on a case-by-case basis by analyzing each factor in each detention. Since the legal standard for an arrest requires much more knowledge of criminal involvement than does the standard for a detention, officers need to be careful that they do not unintentionally convert a legal detention into an illegal arrest. Officers can prevent these "de facto" arrests by understanding the factors reviewing courts associate with arrest status. Nothing in this document is to be construed to mean that officers cannot use force or restraint, when appropriate, during detentions or arrests. However, it is crucial that officers understand the obligation to clearly articulate the reasons for their actions and the specific reasons restraints or force was used in their reports. Understanding these issues and appropriately applying them will help protect officers civilly and enhance the Department's prosecution efforts. DISTRIBUTION "A" )f 3 7-76 p\*