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Am I Under Arrest?

© Gina D. Gipson

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.-- The Fourth Amendment

There is a presumption that if law enforcement wants to "seize" you, your property or search your home, they are required to have a warrant, or a legally acceptable substitute; like probable cause. And that's basically sufficient reason to believe that a crime has been committed, and that a certain person is responsible for that crime.

Fortunately, the Supremes have given us a road map for determining just when a person has been "seized" -- or arrested, if you like. It goes something like this: When taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. MICHIGAN VS. CHESTNUT, 486 US 567 (1988) The Court has gone further than that; even an initially consensual encounter can be transformed into a seizure or detention, within the meaning of the Fourth Amendment. KAUPP VS. TEXAS (2003)

So how does all of this translate into ordinary, everyday life -- at least for those who might occasionally find themselves in the precarious position of "being in the presence of law enforcement?"

Ponder this. A seventeen year old asleep in his bedroom, who's been implicated in a murder by his "friend." But there's no other independent evidence corroborating his complicity. Law enforcement officials are also inclined to believe that the seventeen year old is involved in the murder. He isn't volunteering anything. What to do?

You organize a group of officers, some in plain clothes; the others in full uniform, and armed. At 3:00 in the a.m., you embark on a fact-finding mission at the seventeen year old's home. The suspect's father, who answers the door, is told that they need to speak with his son. And, they want to be the ones to awaken him.

The seventeen year old awakens to a room full of the county's finest telling him to get up because they'd like to 'conversate' with him. The fellow is cooperative, agreeable and goes along with the crimestoppers -- in handcuffs. Apparently in a hurry to get going, the subject isn't allowed to change clothes, or rather to put on any more clothes. He's wearing shorts, socks perhaps a tee shirt and not much else. In January.