I was watching Cops last night—always a trying experience for a libertarian. One sequence showed an officer pulling a car over because the kids weren’t in carseats. When the driver gave the officer a fake name, he demanded identification, and it turned out she didn’t have a license, or registration, or anything with her name on it, but she had a lot of toys in the car, for which she said she had paid cash (so she didn’t have a credit car receipt with her name). The officer was very suspicious, and asked to see her wallet, which she handed over—and there was about $500 in cash in it. At this point, the officer handcuffed the woman. “I’m doing this so I can look through your car,” he says. “I don’t want you hitting me from behind or running away while I look through your car. You’re not under arrest.”
Not under arrest? Here the suspension of disbelief evaporated. Forgive my language, but attorneys have a word for this particular statement: bull shit. Her response should have been “Oh? I’m not? Then I want to leave, please.”
Why would the officer tell a woman whom he’s handcuffed, and whom he’s told must stay there, and whose car he’s about to search, that she’s not under arrest? Well,
when a valid arrest is made, the right to search incident to that arrest is automatic. It is also significant because, if an arrest is made without probable cause, subsequent seizure of evidence may be unlawful. The timing of an arrest is also important in civil actions for claims of false arrest…. Moreover, courts have manipulated the concept of an arrest to avoid application of the search-incident-to-arrest rule.
Thomas K. Clancy, What Constitutes An “Arrest” Within The Meaning of The Fourth Amendment? 48 Vill. L. Rev. 129, 129-30 (2003).
Surprisingly to the layman, “the Supreme Court has never defined the word ‘arrest’ with any precision and lower court decisions conflict as to its meaning.” Id. at 129.
As Clancy explains, there are two kinds of detentions: stops and arrests. A stop is merely a brief detention for investigative purposes. The Constitution applies much less formally to a stop than to an arrest. So an officer has every incentive to keep a detention a “stop” as long as possible, and delay the “arrest” until he’s got every piece of information he can get. He doesn’t have to tell this woman her Miranda rights, for example, until she’s being arrested. So he can keep asking her questions, hoping she’ll say something incriminating before she realizes she can shut up. Clancy explains:
In Berkemer v. McCarty, [468 U.S. 420 (1984)] …a police officer stopped a motorist for a traffic violation and the motorist failed a field sobriety test. After giving incriminating responses to the officer's questions, the motorist was “formally” placed under arrest. The issue before the Court was whether Miranda warnings were required prior to interrogating a suspect during a traffic stop.
Prior case law had established that Miranda warnings were required “whenever ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way….”’ The Court acknowledged that a traffic stop was a seizure within the meaning of the Fourth Amendment but distinguished the concept of custody from a traffic stop on the ground that such stops are temporary and brief…[and] that, in the typical stop, the motorist does not feel completely at the mercy of the police. Thus, the Court viewed a traffic stop as more analogous to a Terry stop than to a “formal arrest.” The Court added, however, that Miranda warnings would be required when a motorist's freedom of action were “curtailed to a ‘degree associated with a formal arrest.’” The Court concluded that the situation before it did not indicate that the motorist was subjected to any restraints comparable to those associated with a formal arrest before he was placed under arrest.
Id. at 160.
In the case I was watching, the woman was clearly subjected to restraints comparable to those associated with formal arrest—she was handcuffed. “To constitute an arrest…the mere grasping or application of physical force with lawful authority, whether or not it succeed[s] in subduing the arrestee, [is] sufficient.” California v. Hodari D., 499 U.S. 621, 624 (1991). But even this doesn’t help the driver, because by the time he handcuffed her, the officer had managed to get most of the incriminating information he needed from her.
And, in fact, none of this really matters. In Atwater v. Largo Vista, 532 U.S. 318 (2001), the Supreme Court unanimously held that the Constitution does not prohibit an officer from subjecting a person to arrest, handcuffs, the whole deal, simply for not wearing her seatbelt. And in the recent Hiibel case, the Court upheld a Nevada law which said that the police can arrest you for not identifying yourself to an officer—a case very similar to the California decision of People v. McKay, 27 Cal.4th 601 (2002), in which the California Supreme Court held that an officer could arrest a man for riding his bicycle the wrong way on a city street.
Vagueness in the definition of arrest serves no valid purpose. All it does is exaggerate the already extreme authority given to police officers when facing the civilian populace. In the present context, even knowing your rights isn’t much help, because it’s not possible. Police authority has become practically limitless. It’s a sad state of affairs.
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