| 词汇 | ARREST |
| 释义 | `1`ARREST `2` "Legal Lexicon": ARREST - To stop; to seize; to deprive one of his liberty by virtue of legal authority. Whether a detention was an investigatory stop or a full-blown arrest is a question of law subject to de novo review. See U.S. v. Diaz-Lizaraza, 981 F.2d 1216, 20-22 (11th Cir.'93). Courts have stated that '[i]n determining 'when' a person is arrested, we ask at what point, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed he [she] was not free to leave.' ' U.S. v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.'89) (quoting U.S. v. Hammock, 860 F.2d 390, 93 (11th Cir.'88)); see also U.S. v. Vargas, 643 F.2d 296, 98 (5th Cir. Unit B'81); 2 John Wesley Hall, Jr., Search and Seizure 22:3 at p.87 (2d ed. '93). Strictly speaking, this particular formulation of the standard for determining whether an arrest has occurred is not a completely accurate statement of the law, for 'an investigatory stop is not an arrest despite the fact that a reasonable person would not believe he is free to leave.' (U.S. v. Hastamorir, 881 F.2d at 1556). This is so because even during an investigative stop, which by definition is not an arrest, it would be clear to a reasonable person so detained that he was not free to leave during the stop. See 2 LaFave, Section(s) 5.1(a) at 393 (1994 Supp. at 135). It appears that some Court's unfortunate articulation of the 'reasonable person/free to leave' test for judging arrests resulted from collapsing the Royer-Mendenhall standard for judging when a 'seizure' occurs into the test governing when such a seizure qualifies as an arrest. See United States v. Hammock, 860 F.3d at 393 (stating that an arrest occurs when ' 'a reasonable person would have believed he was not free to leave.'') (U.S., 446 U.S. at 554 (Stewart & Rehnquist, JJ., concurring)). Of course, whether a seizure has occurred and whether an arrest has occurred are separate and distinct inquiries, the latter class of detention being a subset of the former. See 2 LaFave, Section(s) 5.1(a) at 392-93; Richard A. Williamson, The Dimensions of Seizure: The Concepts of 'Stop' and 'Arrest', 43 Ohio St.L.J. 771, 802-17 (1982) (hereinafter 'Williamson'). So, what is the appropriate standard for judging whether an arrest has occurred, as opposed to a mere investigatory stop? No brightline test separates an investigatory stop from an arrest, and that consequently the question whether a seizure constitutes an arrest is one that one can only be answered on a case-by-case basis in light of 'all the circumstances.' An arrest occurs whenever a reasonable person 'would have understood the situation to constitute a restraint on freedom of movement of the degree ... [ordinarily] associate[d] with [a] formal arrest.' U.S. v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.'88) (quoting U.S. v. Bengivenga, 845 F.2d 593, 596(5th Cir.), cert. denied, 488 U.S. 924 ('88)); see George E. Dix, Nonarrest Investigatory Detention in Search and Seizure Law, 1985 Duke L.J. 849, 927 ('Dix'); accord Berkemer v. McCarthy, 468 U.S. 420, ('84) (a person is 'in custody' for Miranda purposes when he is 'subjected to the restraints comparable to those associated with a formal arrest'). Go to ARREST2 |
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