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Arrest – Search Incident to Arrest – Test for Custody

State v. Jermichael James Carroll, 2008 WI App 161, affirmed on other grounds2010 WI 8
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate


¶26      While a person is not necessarily under arrest just because the officers display their weapons and place the individual in a squad car, those facts can support a determination that an arrest occurred. In this case, the most pertinent facts that lead us to conclude that Carroll was under arrest include:

  • Carroll was driving with a suspended license and the police learned of his status shortly after he stopped the car;
  • Carroll led Belsha on a high-speed chase that reached speeds of up to sixty miles per hour in a residential zone;
  • Carroll pulled into a gas station and stopped his car abruptly;
  • Carroll immediately exited the vehicle;
  • Belsha pointed his gun at Carroll and “ordered him to drop what was in his hand and get down on the ground”;
  • Carroll dropped the object, was handcuffed and remained on the ground while Belsha retrieved the cell phone and asked Carroll for identification, which Carroll could not provide;
  • An unknown number of police squads arrived on the scene; and
  • Carroll was placed in the back of Belsha’s vehicle, still handcuffed.

We conclude that at this point, a reasonable person in Carroll’s position would have considered himself to be “in custody,” given the degree of restraint under the circumstances.  See Swanson, 164 Wis. 2d at 446-47. The facts that one may not generally be arrested for speeding and that there is no evidence Carroll was told he was under arrest do not dissuade us from this conclusion because of the substantial show of force and physical restraint present in this case. See id.(objective test to determine if person has been arrested considers officer’s communications by words and actions).

That the supreme court affirmed on different grounds, without having to find occurrence of an arrest doesn’t mean that the court of appeals’ holding on this point loses precedential impact; hence, the following discussion.

After a high-speed chase, the cop trained a gun on Carroll, handcuffed and frisked him (and apparently—the opinion isn’t explicit on the point—put him in the squad car). Of course it was an “arrest”; what else could it possibly be? Funny you should ask. Turns out that “we have over the years ‘witnessed a multifaceted expansion of Terry . . . For better or for worse, the trend has led to the permitting of the use of handcuffs, the placing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.’ … ‘Unfortunately, the line between a lawful Terry stop and an unlawful arrest is not bright.’” U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995). “Unfortunately” is one way of putting it. “Conveniently” is another.Search/seizure taxonomy very much matters: obviously, if Carroll’s detention is deemed aTerry stop, then a search-incident rationale isn’t available to justify the seized evidence. The flip side, though, is that in any given case the police may have reasonable suspicion but lack probable cause, so an “arrest” wouldn’t be supportable. And so (“unfortunately” or “conveniently” depending on your perspective), the trend is to make the border between arrest and “temporary” stop wondrously elastic. Flowers v. Fiore, 359 F.3d 24 (1st Cir. 2004) (no arrest despite handcuffing and placing in squad, given that suspect neither “relocated” nor read Miranda rights); U.S. v. Stewart, 388 F3d 1079 (7th Cir. 2004) (“The permissible scope of a Terry stop has expanded in recent years to include the use of handcuffs and temporary detentions in squad cars”); U.S. v. Jacob, 377 F.3d 573  (6th Cir. 2004) (investigatory stop didn’t ripen into arrest despite suspect’s being ordered out of his car, handcuffed, and placed in squad car). You get the drift. In those sorts of cases, the defendant wants the detention to be an arrest and the government doesn’t; Carroll wants his to be a Terry stop. Guess who wins.

There’s at least another side to the problem: if the detention is considered tantamount to arrest, then the person under detention is entitled to Miranda warnings. Not relevant to Carroll’s particular situation, but one the practitioner must be sensitive to—the holding in this case can be used in support of a Miranda argument for a similarly detained suspect. See generally, State v. Zan Morgan, 2002 WI App 124, and State v. Gruen, 218 Wis. 2d 581, 594, 582 N.W.2d 728 (Ct. App. 1998). And sensitive as well to the idea that a Terry stop isnot inconsistent with triggering Miranda rights, Morgan (¶16), so that a court’s disinclination to label a given detention tantamount to arrest isn’t determinative. The point is made fairly forcefully by U.S. v. Newton, 369 F.3d 659 (2nd Cir. 2004) (handcuffing of suspect may have been reasonable under 4th amendment but for Miranda purposes established “custody”). For recent discussion of caselaw split on question of when Terry-stop becomes sufficiently coercive to require Miranda warnings, see cert petition in New Mexico v. Snell, 08-196; lower court opinion: here.

How or even whether these doctrinal tensions get resolved remains to be seen, but it’s hard to see how Carroll helps.


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