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Arrest — Search Incident to Arrest — Test for Custody

State v. Michael Wilson, 229 Wis.2d 256, 600 N.W.2d 14 (Ct. App. 1999)
For Wilson: Martha A. Askins, SPD, Madison Appellate.

Holding: After unlawfully intruding on a home’s curtilage and smelling marijuana burning inside the home, an officer approached Wilson and wouldn’t let him go to the bathroom without first patting him down. This, the court says, amounted to an arrest under State v. Swanson, 164 Wis. 2d 437, 446-47, 475 N.W.2d 148 (1991), because a reasonable person would have believed s/he had been placed in police custody.

UPDATE: For a more recent case, implicitly adopting a Swanson-type rationale, albeit in a different context, see Ochana v. Flores, 347 F. 3d 266 (7th Cir. 02-2227, 10/17/03):

Generally, it is legal to search a vehicle incident to a lawful custodial arrest, including the contents of any closed containers found inside, in order to disarm the suspect or preserve evidence of a crime. See New York v. Belton, 453 U.S. 454, 460 (1981). It is not, however, permissible to conduct a Belton search pursuant to a traffic citation alone. Knowles v. Iowa, 525 U.S. 113 (1998). In Knowles, the Court underscored that a Belton search may not be conducted as part of a mere traffic stop, even if there is probable cause for the traffic stop, or probable cause to arrest the driver for the traffic violation. In order to conduct a Belton search, the occupant of the vehicle must actually be held under custodial arrest. Id. at 118.

Construing the record in the light most favorable to Ochana, we find insufficient evidence that Ochana was under custodial arrest at the time of the search. A suspect is under custodial arrest when “a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” United States v. Ienco, 182 F.3d 517, 523 (7th Cir. 1999). For example, in Smith v. Ball State Univ., 295 F.3d 763, 768-69 (7th Cir. 2002), we found that the removal and detention of an unconscious person at the wheel of a running vehicle was merely investigatory and was not equivalent to a custodial arrest, even if the officers reasonably believed that the person was impaired by drugs or alcohol. Similarly, in this case, even if Officers Flores and Schwocher reasonably believed that Ochana was intoxicated, a reasonable person in Ochana’s shoes would have thought that he was merely being detained for a traffic citation. Ochana had no reason to believe that he was under custodial arrest for any offense. He was not told that he was under arrest; he was not handcuffed or frisked; and no sobriety test was conducted. Officers Flores and Schwocher did not ask Ochana any questions that would signal to a reasonable person that he was suspected of having committed any other offense. For these reasons, we find insufficient evidence in the summary judgment record to support a conclusion as a matter of law that this search was incident to a custodial arrest.

See also State v. Radka, Wash. App. No. 21823-6-III, 2/3/04 (“only an actual custodial arrest provides the authority to justify a search incident thereto”; though defendant told he was under arrest and placed in squad car, other circumstances indicated that the arrest wasn’t custodial: defendant neither handcuffed nor frisked, and was allowed to make cell calls from the squad “presumably to arrange transportation”). And for other authority discussing “whether the officers’ actions amounted to an investigatory stop or was so intrusive as to constitute a de facto arrest,” see Flowers v. Fiore, 1st Cir. No. 03-1170, 2/25/04 (no arrest despite handcuffing and placing in squad, but “noteworthy” that suspect neither “relocated” nor read Miranda rights); U.S. v. Stewart, 7th Cir. No. 03-2377, 11/9/04 (“The permissible scope of a Terry stop has expanded in recent years to include the use of handcuffs and temporary detentions in squad cars.”); and U.S. v. Jacob, 6th Cir. No. 03-3348, 7/26/04 (investigatory stop didn’t ripen into arrest despite suspect’s being ordered out of his car, handcuffed, and placed in squad car where these actions were reasonably related to officers’ concern for safety after “the defendants’ vehicle lunged forward as if they were attempting to escape”; court further took note of connection between drug trafficking and weapons). But see U.S. v. Keenan L. Jackson, 7th Cir. No. 02-4385, 7/28/04 (motorist stopped for traffic offense handcuffed and placed in squad until identity could be determined, but told was notunder arrest: court deems person to be under arrest so as to support search-incident rationale — a cynic might say that whether or not a person is deemed under arrest turns on what the defendant seeks; certainly, there seems to be little predictability on any given set of facts). Compare People Celis, Cal SCt No. S107885, 7/26/04 (no hard and fast line between detention and arrest, determination made case by case; here, concern that suspects might flee during investigatory frisk for drugs justified intrsuive actions without converting stop into arrest):

With regard to the scope of the police intrusion, stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period, as occurred here, do not convert a detention into an arrest. …Of significance too are the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity. … Although a routine traffic stop would rarely justify a police officer in drawing a gun or using handcuffs, such actions may be appropriate when the stop is of someone suspected of committing a felony.

But, although the panel in U.S. v. Powell, 451 F.3d 862 (DC Cir 2006) held that in order to justify a Belton-type search-incident, there must first be an arrest, that holding was reversed by the en banc court, No. 05-3047, 4/17/07 (search-incident may precede arrest; and, taking issue with Ochana, which is described as the only federal decision to reach a contrary result).A suspect’s entitlement to Miranda rights similarly turns on whether he or she is in custody tantamount to formal arrest.


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