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When are you under arrest in Colorado?


Today I want to speak little about the factors Colorado courts look at when determining if somebody is under or arrest or not.  This is an issue of importance when it comes to 5th amendment proceedings like suppressing statements made without an individual being issued a Miranda warning.  

In Colorado, courts have taken the position that to determine if an individual is under formal arrest and need to be read their Miranda rights, the following non-exclusive factors, as articulated in People v. Hughes, 252 P.3d 1118, 1121 (Colo. 2011) need to be analyzed in the totality of their circumstances: (1) the time, place, and purpose of the encounter; (2) the persons present during the interrogation; (3) the words spoken by the officer to the defendant; (4) the officer's tone of voice and general demeanor; (5) the length and mood of the interrogation; (6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; (7) the officer's response to any questions asked by the defendant; (8) whether directions were given to the defendant during the interrogation; and (9) the defendant's verbal or nonverbal response to such directions.

On its face, this inquiry might make sense.  After all, when we watch TV a person is under arrest when they are being put in hand cuffs, pushed against a wall, maybe being yelled at by officers, and possibly some physical resistance by the suspect/defendant.  However, these factors used by courts to determine if a formal arrest occurs or not are predicated upon a serious flaw in logic:  The same factors often exist during a Terry protective stop which is not considered a formal arrest but merely a custodial seizure and interrogation.

During a Terry stop, it is not at all uncommon for police officers, under the guise of officer safety, to put an individual in handcuffs while they do a pat down search and ask basic questions.  Furthermore, to effectuate a Terry stop officers will often draw their weapons to get a person to stop.  Finally, officers often times try their best to remain calm, courteous and respectful during a Terry stop or an interrogation after an arrest.  

It is bad enough that the court's factors seem to be based on a vision of a television style arrest but because the factors can be used to determine the existence of two distinct events they lack what is called construct validity.  For instance, if putting an individual in hand cuffs is a factor weighing in favor of an arrest then courts should not be using the same factor to argue that a person cuffed during a Terry stop is not under arrest.  There is nothing, other than training, mandating a person be put in hand cuffs when they are arrested - in fact white collar criminals are often times 'arrested' without ever being placed in hand cuffs.   The same goes for the respectful, courteous nature, and non-overbearing demeanor between officers and suspects. It is not at all uncommon for officers to place a person in custody and yet remain respectful and courteous during discussions and questioning.

The point is that if the factors you look at to objectively determine whether or not an event occurs can be used to show another event occurred that is similar in nature the underlying logic is fatally flawed.  There is no way to really know if an officer's Terry stop should be considered an arrest - courts will say there is a difference but the objective factors they rely upon lead to two different conclusions.  Thus an officer's stop and questioning of an individual is a Terry stop or an arrest becomes a subjective decision rather than objective.

Of course, some will say the contexts are different.  Terry stops occur on 'reasonable suspicion' and may lead to an arrest or being let go.  However, people who are 'arrested' because there is probable cause to do so can also be let go without charges being filed or taken to a jail for booking.  More importantly, the 9 factors above do not take 'context' into account.  The factors exist or they do not - nothing else matters regarding the interaction between police or citizen occurs.

In the end, I believe it is important for defense attorneys to not just argue the facts of a case to determine if an arrest occurred or not - they need to attack the logic.  The factors determining an arrest should not be interchangeable with other events like a Terry stop.  By forcing courts to base their decisions on truly sound logic and reasoning we not only protect the citizens from over bearing government but give life to the U.S. Constitution.  Remember, the Constitution was created to protect the citizenry from government actions and if we are going to allow the state an ability to take our freedom away it needs to be done on solid logic.  


Matthew GreifeComment