Arrest? What arrest?

What's in a name? That which we call a rose

By any other name would smell just as sweet. 

-- Shakespeare, Romeo and Juliet (Act II, Scene ii)

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"In constitutional terms, an arrest constitutes a "seizure" of the person, as that term is used in Fourth Amendment jurisprudence." 

-- Dressler, Understanding Criminal Procedure (Sec. 10.01)

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"Mere words will not constitute an arrest, while, on the other hand, no actual, physical touching is essential. The apparent inconsistency in the two parts of this statement is explained by the fact that an assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. There can be no arrest without either touching or submission."27

-- Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 206 (1940) (footnotes omitted)

What does it mean to be arrested?

Common sense (and the television screen) seem to indicate that cuffing a person is the same as arresting them. Of course our courts have gone to great lengths to obfuscate the meaning of the word when someone is accused of doing something really bad.

In the Matter of C.M., a Juvenile, the Waco Court of Appeals was asked to determine whether a teenager was under arrest at the time he was asked questions by a police officer without being reminded that he had the right to remain silent.

Oh, but did I forget to mention that C.M. did something really bad. It turns out that C.M. robbed a convenience store with a loaded shotgun. The police got word that the suspect was on the run and C.M. was caught in an alley not too far from the site of the robbery.

The police took C.M. back to his cousin's house and told him to stand next to his cousin's truck. He did as he was told. Around him were quite a few armed police officers - though none had their guns pointed at C.M.

A detective asked C.M. what happened and C.M. eventually stated that he had robbed a store with a shotgun. The detective then took C.M. to a patrol car where they could talk in a quieter environment. At no time was C.M. handcuffed while being detained or questioned.

At trial C.M. complained that his rights under Miranda were violated because he was subjected to a custodial interrogation without being warned of the consequences of speaking. The court held that C.M. was not subjected to a custodial interrogation because he wasn't under arrest at the time he was questioned.

According to the court, M.C. wasn't under arrest because the officers neither placed him in handcuffs, restrained him or told him he wasn't free to leave. Apparently being told to stand by a truck and being surrounded by armed officers doesn't constitute enough "restraint" for the ones in robes up in Waco.

But that's not all...

In Jensen v. State, the Fort Worth Court of Appeals decided that just because a suspect is lying facedown on the ground with his hands cuffed behind his back doesn't mean he's under arrest. But then Mr. Jensen had done something really bad.

It seems that Mr. Jensen shot and killed a buddy of his (my supposition) inside a motel room in Wichita Falls one evening. We know this because Mr. Jensen told the cabdriver he shot his friend in the head. The cabdriver then told the police and the police found Mr. Jensen leaving the parking lot of a Wal-Mart a little while later.

When the officer spotted Mr. Jensen he told him to get down on the ground. Mr. Jensen complied. The officer then cuffed Mr. Jensen and asked if he was carrying any weapons. Mr. Jensen 'fessed up about the gun he was carrying.

Mr. Jensen argued that the gun should be suppressed as it was the result of a search following an illegal arrest. The Court politely declined Mr. Jensen's request holding that just because he was lying facedown on the ground with his hands cuffed behind his back, he wasn't under arrest. You see, he was only being detained and the handcuffs were because the officer had information that Mr. Jensen was packing heat. And, since he wasn't under arrest, there was no search - it was just a Terry-style pat down. Now, once they had the gun, then Mr. Jensen was under arrest.

So, as always, if you need to get around that pesky illegal search or illegal custodial interrogation - just argue that the suspect wasn't under arrest.