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When Has a Person Been Legally Arrested?

By Walin & Klarich

Whether an actual arrest took place is critical to the future of your case because an illegal arrest can result in obtaining critical statements or evidence illegally. There are no magic words which create the sole basis for determining whether an arrest has occurred. The trier of fact must look to the essential elements of custody and distinguish between a temporary detention and a formal arrest. (Ormonde v. DMV (1981) 117 CA3d 889, 173 CR 79). In People v. Freund (1975) 48 CA3d 49, 119 CR 762, defendants were found to be ?under arrest? when they were placed in the back of a patrol car while police obtained a search warrant, even though officer claimed the arrest did not take place until after the search. Where an arrest does take place, the timing of it is determined by looking to the essential elements of taking the arrestee into custody and actual restraint or submission to custody...continue to full post

Full post as published by Southern California Criminal Defense Blog on December 29, 2009 (boomark / email).