| 词汇 | ARREST2 |
| 释义 | `1`ARREST2 `2` "Legal Lexicon": The inquiry is simply whether a reasonable person would have believed that he was 'under arrest' (as that term is commonly understood) at the time of his seizure. U.S. v. Patterson, 648 F.2d 625, 632 (9th Cir.'81); see generally Williamson, 43 Ohio St.L.J. at 815-16. Thus, if the circumstances surrounding a seizure would be viewed by a reasonable person as indicating that he would not be free to leave for an indefinite, or for an extended period of time, then that person has been placed under arrest. See 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure Section(s) 3.8 at 297 (1984) ('[A] stopping differs from an arrest not in the incompleteness of the seizure but in the brevity of it.'); cf. U.S. v. Sharpe, 470 U.S. 675, 684-86, ('85) (noting that an investigative stop implies a 'temporary' detention, typically of short duration); Terry v. Ohio, supra, at 26, (noting that an arrest implies 'future interference with the individual's freedom of movement' beyond that attendant with an investigative stop); U.S. v. Mosquerra-Ramirez, 729 F.2d 1352, 56 (11th Cir.'84) (recognizing this temporal distinction between arrests and investigative stops). It is not the actual length of time of the detention that is the key here, but, rather, whether a reasonable person would perceive, while detained, on the basis of the totality of the circumstances (including, very importantly, the actions and representations of the seizing officers, see U.S. v. Brunson, 549 F.2d 348, 58 (5th Cir.), cert. denied, 434 U.S. 842 ('77)), that he is 'under arrest' as commonly understood, in that he is likely to be detained for an indefinite or extended period of time. An arrest can occur in an instant. An officer can put his hand on a person and state that that person is 'under arrest.' See U.S. v. Moreno, 897 F.2d 26, 31 (2d Cir.), cert. denied, 497 U.S. 1009, ('90); cf. California v. Hodari D., supra, 499 U.S. at 626, (At common law, '[a]n arrest require[d] either physical force ... or, where that was absent, submission to the assertion of authority.'). An arrest can also occur in an instant even if the officers do not use that magic phrase. Cf. U.S. v. Setzer, 654 F.2d 354, 57 (5th Cir. Unit B. '81), cert. denied, 459 U.S. 1041 ('82). It may be argued that the standard of 'a reasonable person believing he is under arrest' will have its own difficulties, see Dix, supra, 1985 Duke L.J. at 929-31, but the common man or woman in this country, using common sense, understands this concept. Ordinarily, when a highway patrolman stops and detains a person for speeding, that person would not reasonably believe he or she is under arrest. See Pennsylvania v. Mimms, 434 U.S. 106 ('77) (police ordering an occupant out of a vehicle following a traffic stop does not result in an arrest). Similarly, if an officer stops a person on the street and states, 'I just want to ask you some questions,' that person would not, at that moment, reasonably believe that he or she is under arrest. See Florida v. Rodriguez, 469 U.S. 1, 5-6 ('84) (such an encounter is not even a 'seizure' under the Fourth Amendment). But if an armed officer, wearing a raid jacket, violently seizes a person, forces him to the ground, and places him in handcuffs (or other restraints), would not that person reasonably believe he was under arrest? Of course he would. Cf. U.S. v. Tookes, 633 F.2d 712, 715 (5th Cir. Unit B. '80). The difference is that in the first two examples the totality of the circumstances would lead the person detained to believe that his detention would be brief, whereas in the last example there is nothing in the situational context that would lead him to reasonable believe that he would soon or very shortly be permitted to leave and go on about his business. Go to ARREST3 |
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