De Facto Arrests
Transitions From a Stop to a De Facto Arrest
An investigative detention may lead to a lawful arrest only if the officer develops probable cause to arrest. While an investigative detention only requires reasonable suspicion that criminal activity is afoot, an arrest requires probable cause that a crime is being, or has been, committed.
If an officer extends an investigative detention beyond the time it would take a reasonable officer to confirm or dispel her suspicions, a judge may find that the officer has made a “de facto” arrest.
A detention that does not satisfy one or both of these requirements may be invalidated in two ways. First, it will be deemed a de facto arrest if the safety precautions were excessive, if the detention was unduly prolonged, or if the detainee was unnecessarily transported from the scene. While de facto arrests are not unlawful per se, they will be upheld only if the officers had probable cause to arrest.21 As the court noted in United States v. Shabazz, “A prolonged investigative detention may be tantamount to a de facto arrest, a more intrusive custodial state which must be based upon probable cause rather than mere reasonable suspicion.” 22
Unfortunately, the term “de facto arrest” may be misleading because it can be interpreted to mean that an arrest results whenever the officers’ actions were more consistent with an arrest than a detention (e.g., handcuffing). But, as we will discuss later, arrest-like actions can result in a de facto arrest only if they were not reasonably necessary.23
In many cases, of course, the line between a detention and de facto arrest will be difficult to detect.24 As the Seventh Circuit observed in U.S. v. Tilmon, “Subtle, and perhaps tenuous, distinctions exist between a Terry stop, a Terry stop rapidly evolving into an arrest, and a de facto arrest.”25 So, in “borderline” cases—meaning cases in which the detention “has one or two arrest-like features but otherwise is arguably consistent with a Terry stop”— the assessment “requires a fact-specific inquiry into whether the measures used were reasonable in light of the circumstances that prompted the stop or that developed during its course.”26
Second, even if a detention did not resemble an arrest, it may be invalidated on grounds that the officers investigated matters for which reasonable suspicion did not exist; or if they did not promptly release the suspect when they realized that their suspicions were unfounded or that they would be unable to confirm them.
Determining Factors
In determining whether an officer has made a de facto arrest, courts will consider a variety of factors, including:
The purpose of the stop and the nature of the crime;
Whether the officer diligently conducted the detention;
The amount of force the officer used, and the need for such force;
The extent to which the officer restrained an individual’s freedom of movement;
The number of officers involved;
The length and intensity of the stop;
The time and location of the stop; and
The need for immediate action.
A de facto arrest not supported by probable cause is an illegal arrest.
Any evidence the officer obtained as a result of the unlawful arrest (for example, evidence the officer found in the suspect’s pocket in the search incident to arrest) will be inadmissible.
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