When a Seizure Becomes an Arrest

When a Seizure Becomes an Arrest

Probable cause is the price of an arrest, and the police do not get to decide whether what they did to a person counts as one. A custodial arrest is the most serious form of seizure: officers take a suspect into custody in order to bring charges.¹ Arrests and brief investigative stops are both seizures of the person, but they carry different justification requirements. An arrest must rest on probable cause, while a stop may rest on the lesser showing of reasonable suspicion.² Everything later in this chapter (the probable cause standard, warrants, the initial appearance) applies only once an encounter has crossed from the lesser category into the greater one, so the first question is what actually moves it across.

In Dunaway v. New York the police lacked probable cause but wanted to question a suspect about a crime. They took him from a neighbor's home to a police car, drove him to the station, and placed him in an interrogation room.³ The State conceded that it had no probable cause to arrest him before his incriminating statement. It argued that the seizure was not an arrest, and so was permissible, because the police had reasonable suspicion that he held intimate knowledge about a serious unsolved crime.⁴ The Court rejected that argument. Taking a suspect into custody and transporting him to the station for questioning is functionally equivalent to an arrest, requires probable cause, and cannot be justified as an investigative detention on lesser suspicion.⁵

What decided Dunaway was the physical reality of the restraint, and the officer's label played no part. The suspect was not questioned briefly where he was found. He was never told he was free to go, and he would have been physically restrained had he refused to accompany the officers or tried to leave. The Court treated it as irrelevant that he was not told he was under arrest, was not booked, and would have had no arrest record if the interrogation had produced nothing, and it added that the probable-cause requirement does not depend on whether state law calls the intrusion an arrest.⁶ The separate threshold question of whether a person has been seized at all asks whether a reasonable person would believe that he was not free to leave.⁷ No one doubted a seizure in Dunaway, so the only dispute was over which kind it was.

The rule follows the substance of the restraint for two reasons, one functional and one about incentives. The intrusion that justifies a demanding standard is removal to a police facility and interrogation there, and that intrusion is the same whatever the officers say about it. The incentive problem is that an officer who lacks probable cause has every reason to describe a custodial taking as something less than an arrest, so a rule keyed to the officer's description would let the police lower the standard simply by choosing a word. The Court saw this danger directly: any exception broad enough to cover a seizure as intrusive as the one before it would threaten to swallow the general rule that seizures are reasonable only on probable cause.⁸ For the same reason it refused to replace that rule with a multifactor balancing test, because a single familiar standard guides officers who have little time to reflect, and a balancing test would be applied in the first instance by the officers themselves.⁹

The history explains why the lesser category exists and why it stays small. Before Terry v. Ohio, the term "arrest" was synonymous with the seizures the Fourth Amendment governed, and probable cause was treated as an absolute requirement.¹⁰ Terry then recognized brief street encounters on less than probable cause, while describing the arrest as the seizure that results in charging a person with a crime.¹¹ Dunaway confines that lesser category to narrowly defined intrusions. The standards for those brief detentions are taken up elsewhere, and what matters here is that a seizure resembling a traditional arrest does not belong among them.¹²

On an exam stem, then, the words the officers used ("invited," "detained," "not under arrest") carry no weight. Look for custody and for movement of the suspect to the station for questioning. Where both are present and the facts show no probable cause, the seizure fails. Where the encounter is a brief, on-the-spot stop with no custody, the arrest rules in the rest of this chapter do not yet apply.