999 Fifth Avenue, Suite 350, San Rafael, CA 94901

Call Today for Your Free Consultation
Call Us 415-729-7300

San Francisco DUI Lawyer - Arrest vs. Detention, & Constitutional Requirements

 Posted on May 21, 2010 in DUI

Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? My name is Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of "California Drunk Driving Law".

In this series of blog postings I am going to discuss search and seizure issues related to drunk driving cases. However, the totality of search and seizure law is perhaps as voluminous and complicated as drunk driving (DUI) law.

DETENTION AND ARREST | Seizure of a Person | Arrest vs. Detention, and Constitutional Requirements

"The Fourth Amendment prohibits ‘unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu (2002) 534 U.S. 266, 273, citing United States v. Cortez (1981) 449 U.S. 411, 417; Terry v. Ohio (1968) 392 U.S. 1, 9.

In People v. Soun (1995) 34 Cal.App.4th 1499, the court clearly spelled out constitutional standards for permissible detentions and arrests:

Any police restraint of the liberty of an individual either by physical force or by an assertion of authority to which the individual submits, in circumstances in which a reasonable person would have believed he or she was not free to leave, will constitute a state "seizure" of the individual within the meaning of the Fourth Amendment. Such a seizure is normally characterized as either a "detention" or an "arrest."  The distinction can be significant, inasmuch as the constitutional standard for a permissible detention "is of lesser degree than that applicable to an arrest": A detention "‘may be undertaken by the police' if there is an articulable suspicion that a person has committed or is about to commit a crime"..., while probable cause for arrest is said to exist only "when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime." Thus in assessing the constitutional propriety of a seizure of the person it is essential initially to determine whether the seizure was a detention, or was an arrest, or was both a detention and, subsequently, an arrest.

Id., at 1515. Handcuffing a suspect during a detention does not automatically transform a detention into an arrest except where it is not reasonably necessary for the detention. People v. Stier (2008) (Fourth Dist. COP., Div. 1, Docket No. D051505) (no reasonable grounds to cuff a tall but cooperative driver).

Share this post:
Back to Top