SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

was asked to step away from the boarding area at an airport, his
travel documents were taken, and he was surrounded by seven
officers with visible handguns; and Kaupp v. Texas (2003) 538
U.S. 626, 628-630 [155 L.Ed.2 nd 814, 819-820], three officers,
with three more in the next room, commanded the 17-year-old
defendant to get out of bed at 3:00 a.m., and took him to the police
station for questioning.)
The Physical Touching of the person of the suspect. (Kaupp v.
Texas, supra, at p. 630 [155 L.Ed.2 nd at p. 820.)
Transporting a Detainee. (Dunaway v. New York (1979) 442 U.S.
200, 206-216 [60 L.Ed.2 nd 824, 832-838]; Taylor v. Alabama
(1982) 457 U.S. 687 [73 L.Ed.2 nd 314].)
As a general rule:
Detention
+ nonconsensual transportation
= arrest.
See also People v. Harris (1975) 15 Cal.3 rd 384, 390-392;
transporting a subject from the site of a traffic stop back to
the scene of the crime for a victim identification, absent
one of the recognized exceptions, was an arrest.
“(W)e have never ‘sustained against Fourth Amendment
challenge the involuntary removal of a suspect from his
home to a police station and his detention there for
investigative purposes . . . absent probable cause or judicial
authorization.’ [Citation]” Kaupp v. Texas (2003) 538 U.S.
626, 630 [155 L.Ed.2 nd 814, 820].
But See “Exceptions,” below.
Exceptions: The use of firearms, handcuffing, a non-consensual
transportation, and/or putting a subject into a patrol car, if necessary under
the circumstances, particularly if precautions are taken to make sure that
the person knows he is only being detained as opposed to being arrested,
or when the use of force is necessitated by the potential danger to the
officers, may be found to be appropriate and does not necessarily elevate
the contact into an arrest. (See People v. Celis (2004) 33 Cal.4 th 667, 673-
676.)
© 2012 Robert C. Phillips. All rights reserved
In general, the investigative methods used should be the least
intrusive means reasonably available. Although the use of some
force does not automatically transform an investigatory detention
into an arrest, any overt show of force or authority should be
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