At the threshold, it must be understood that the word “arrest” has two distinct meanings. First, there is a common law, or in some states, a statutory meaning. Second, there is the federal constitutional meaning which has been recognized by the United States Supreme Court.
For the common law definition of the word “arrest,”the Georgia Court of Appeals has stated:
“An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act indicating an intention to take such person into custody, and which subjects such person to the actual control and will of the person making the arrest. It is sufficient if the arrested person understands that he is in the power of the one arresting and submits in consequence thereof. The taking of another into custody for the purpose of investigating an alleged crime constitutes an arrest.”See section infra, on what constitutes a seizure.
The Georgia Supreme Court has more concisely said that “a person is under arrest whenever his liberty to come and go as he pleases is restrained, no matter how slight such restraint may be.”
In Georgia, as provided by statute, it is not necessary that a person actually be touched in order to be considered arrested. If the person voluntarily submits or gives in on the condition that he will only be allowed his freedom of movement under the direction of the officer, the arrest is complete.
In addition, it has been held that the seizure of one's property from his immediate presence is the functional equivalent of the seizure of his person. This includes the seizure and retention of personal property or money when the authorities do not make it absolutely clear how they plan to reunite the suspect and his possessions at some time and place.
These statements represent the general common-law concept of arrest.However, this is not the present federal constitutional concept of the term “arrest” or the term “custodial arrest.”
Under the federal constitutional concept of arrest, a greater degree of intrusion or restraint is required in order to have an arrest than that which was required at common law. For example, a “stop and frisk” in terms of federal constitutional law amounts to a seizure, not to an arrest; and it does not require probable cause. However, in common-law terms a “stop and frisk” at least generally appears to be an arrest. The person frisked is certainly at least slightly restrained. On the other hand, the United States Supreme Court in the Terrycase made it clear that the Fourth Amendment applies to “seizures” as well as to arrests.
Thus, from a federal constitutional standpoint, the terms “seizure” and “arrest” or “custodial arrest” together seem to approximate the common-law concept of arrest. That is, the common-law term “arrest” applies, of course, to what the United States Supreme Court has called an “arrest” or “custodial arrest” from a federal constitutional standpoint, but the common-law term “arrest” also encompasses a “stop and frisk” or “seizure” as defined by the Supreme Court.
The nomenclature used by the United States Supreme Court is important because a “seizure” or “stop and frisk” is valid if based on reasonable suspicion, which is grounded upon specific and articulable facts, judged against an objective standard. However, when such a “search” is permissible the “search” accompanying such a seizure is much more restricted than in the case of a search incident to a lawful “arrest,” as that term is used by the Supreme Court. There may not be a federal constitutional “arrest” in the absence of probable cause, but if there is probable cause (and the arrest is otherwise valid) the search conducted incident to such an arrest may be much broader than in the “stop and frisk” or “seizure” situation. However, where a person thought to be only an eyewitness to a shooting was asked to wait in the back of a police car until he could be questioned about the shooting, and the “witness” made an incriminating statement when a detective approached 17 minutes later, the court concluded that from a federal constitutional standpoint the seizure was reasonable and a less severe intrusion than a traditional arrest and thus declined to suppress the statement.
In State v. Corbett,the court held that whether or not a person has been constitutionally arrested depends upon “whether a reasonable person in the suspect's position would have thought the detention would not be temporary.” In
State v. Davis,Judge Johnson pointed out that “[a] person has been ‘seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person …, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.”
It should be noted, however, that notwithstanding the foregoing, not every custodial restraint of an individual by a police officer will constitute an “arrest.” A person taken into custody pursuant to an order of civil protective custody is not “arrested.” In Lindsey v. State,for example, an individual who was detained, placed in handcuffs and into a police cruiser and secured while being served with a civil order authorizing the individual's detention for purposes of a mental evaluation was not deemed under “arrest” for purposes of a Fourth Amendment challenge to contraband found during the search.
In Miranda v. State,in an opinion by Judge, now Chief Justice, Benham, the Court of Appeals said there are at least three kinds of police-citizen encounters: (1) verbal encounters involving no coercion or detention, (2) brief “stops” or “seizures” which must be accompanied by reasonable suspicion, and (3) “arrests” which must be supported by probable cause.
In Quinn v. State,the court pointed out that “[n]ot all encounters between police officers and citizens involve seizures which implicate Fourth Amendment protections. . . . ‘[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions …; [and] ask to examine the individual's identification …;—as long as the police do not convey a message that compliance with their requests is required.' ”