Have I been arrested if police order me not to speak with others?

Some courts have held that the police officer’s denying you the ability to communicate to others is indicative of an arrest. We have all seen in the movies where the police tell you that you have one phone call. Limiting your freedom of communication is then something that would lead a reasonable person to believe that he has been arrested.

In State v. Goss, a suspect was approached by police as he was talking on a payphone and told by an officer to hang up the phone. Mr. Goss ignored the deputy’s repeated requests that he hang up the phone until another officer approached and also requested that he hang up the phone. While the trial court found that the suspect was not yet under arrest, the Court of Appeals held differently, reasoning that:

“Nevertheless, even if [the officer] initially told, rather than asked, Goss to hang up the telephone, Goss did not immediately comply with that order or command; instead, he ignored [the officer]. When a person does not submit to a show of authority, he has not been “seized” for purposes of the Fourth Amendment. California v. Hodari D. (1991), 499 U.S. 621 at 626.

However, [the officer] also testified that Goss did not hang up the telephone until after he, and then Detective Ray, had “asked” Goss, several times each, to do so. The trial court essentially found that a reasonable person in Goss’s position would have believed he was free to continue to ignore the detective’s requests. We disagree. By repeatedly asking Goss to hang up the telephone despite his attempts to ignore them, the detectives made it clear that they were not going to take “no” for an answer. No reasonable person in Goss’s place would have felt free to ignore the detectives’ repeated requests to hang up the telephone. See United States v. Jerez (C.A. 7, 1997), 108 F.3d 684, 692 (defendant was “seized” when police knocked on his motel window for three minutes, since no reasonable person would have felt free to leave under the circumstances). Thus, Goss was “seized” for purposes of the Fourth Amendment when he finally complied with the detectives’ repeated requests to hang up the telephone. The question then becomes whether the detectives had, at least, reasonable articulable suspicion to justify their initial stop of Goss.”

If you are charged with drunk driving anywhere in Ohio, please feel free to call me at 614.580.4316. I do take late night calls and won’t be mad if you call me from a roadside stop or the police station late at night or early in the morning. You can also email me with questions at eewillison@earthlink.net.