When Has an Off-Duty Police Officer Made an Arrest?

As you know from reading earlier posts on this site, if the arresting officer wants to be competent to testify against the suspect, the officer must be in the proper uniform of the day and must be in a marked police cruiser.  But what actions by such officers constitute arrests?  The case law is fraught with courts doing judicial gymnastics in order to find that an arrest did not occur.

If the out of uniform officer or officer in an unmarked car police car merely follows you to the place where you stop the car for your own reasons, then the officer has not made a traffic stop under the law.  But if he arrests you after the stop, he may be on shakier ground.  For a much more detailed analysis of whether or not an arrest has been made, you should read the chapter on arrests.

Some Ohio Courts have gone a long way to find that an arrest has not been made.  In the case of State v. Hemmer,[1] an off-duty officer driving his own car followed Ms. Hemmer to her home.  The officer then took the following actions:  He got out of his car and told her to exit her vehicle and stay next to it until another police officer could arrive; he reached into Ms. Hemmer’s car and turned off her ignition; he was blocking her in with his own personal car until the other officer could arrive; he did not allow Ms. Hemmer to speak with her husband; he told her that she was not free to leave, and began questioning her about her actions.

Sound like an arrest to you?  Not to the Third District Court of Appeals.  That court held that:

We think the facts advanced by Appellant are typical of most traffic stops. That is, when a suspect is detained for the suspected violation of one or more traffic laws, including driving left of center and/or driving while under the influence of alcohol, the suspect is not free to drive away, is not permitted to interact with persons unrelated to the stop, is often times requested to exit his or her automobile, and is generally asked a moderate number of questions to determine his or her identity and to try to obtain information confirming or dispelling the officer’s suspicion.[2] 

One thing that is not like most traffic stops however, is that most traffic stops are conducted by police officers wearing a uniform and driving marked police cars.

In the context of whether the off-duty officer had arrested Ms. Hemmer (therefore triggering the need to give her notice of her Miranda rights), the Court reasoned:

The United States Supreme Court has analogized the usual traffic stop to a “Terry stop.”  See, Berkemer v. McCarty (1984), 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138.  The “nonthreatening character” of the detentions associated with a normal traffic stop and a Terry stop lead the Berkemer Court to hold that “…persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” Berkemer, 468 U.S. at 440, 82 L. Ed. 2d at 334-335, 104 S. Ct. at 3150.  Consequently, unless and until “…a suspect’s freedom is curtailed to a ‘degree associated with formal arrest,’” the safeguards prescribed by Miranda are not applicable.  Id., 468 U.S. at 440, 82 L. Ed. 2d at 335, 104 S. Ct. at 3150, citing California v. Beheler (1983), 463 U.S. 1121, 77 L. Ed. 2d 1275, 103 S. Ct. 3517.

The facts presented by the case sub judice indicate that Appellant was not immediately subjected to treatment by Detective Stout that rendered her “in custody” such that she was entitled to the full panoply of protections prescribed by Miranda. Consequently, for purposes of Miranda, we hold that Appellant’s freedom of action was not curtailed to a degree associated with formal arrest.  We further hold that Detective Stout was not required to advise Appellant of her Miranda rights. Accordingly, any evidence obtained during Detective Stout’s investigation or Sergeant Galyk’s subsequent investigation is not suppressible on the grounds that it was obtained in contravention of Appellant’s right to be advised of her Miranda rights.[3] 

Had Ms. Hemmer decided to ignore the off-duty police officer and attempted to walk into her home, or perhaps drive away in another vehicle, or God forbid, talk to her husband like any free American might mistakenly think is her right, the off-duty police officer might have had to use physical force to detain her.  It is unclear whether or not this use of physical force by the officer would have qualified as an arrest under the ruling above.  Such actions might have subjected her to charges of failure to follow the lawful order of a police officer.  She might even have been charged with resisting arrest until the prosecutor realized that this would be tantamount to admitting that there had been an arrest.

Other Ohio courts have ruled that an off-duty officer in an unmarked car can arrest you so long as he is in uniform and waits until you stop on your own before arresting you (the officer in Hemmer was not in uniform).  In the case of Columbus v. Finlay,[4]  the Tenth District Court of Appeals considered a case wherein an officer was driving home from work in his personal vehicle, but still in uniform.  He observed Ms. Finlay driving erratically, and followed her until she stopped at her home.  The officer arrested Ms. Finlay and held her there on the scene until an on-duty officer arrived and took her away.

The Tenth District Appellate Court ruled that since the officer did not use his unmarked car to stop Ms. Finlay, but rather approached her on foot while in uniform, the arrest was proper and he could testify against her at trial.

But again, much depends upon what Appellate District you live in.  In the Fourth Appellate District, an officer in an unmarked car and out of uniform can arrest you so long as the court determines that he was off-duty.  In the case of State v. Butler,[5] an off-duty sheriff was nearly hit by Mr. Butler’s vehicle when it ran a stop sign.  The sheriff followed Mr. Butler to a local convenience store and placed him under arrest.  A scuffle even broke out between the Sheriff and Mr. Butler during the arrest.

The Fourth District Court of Appeals ruled that since the sheriff was not on duty at the time of the arrest, he did not have to be in uniform.  Mr. Butler argued (as did the dissenting justice in the case) that whether or not an officer is on duty or not is not determined by the time clock back at the station, but by the actual facts and circumstances of the situation.  Whenever the officer starts acting like a police officer, then he is on duty.  But this argument did not carry the day.  Also ignored in the majority’s decision was the legislative intent behind the statute in the first place, which was to make the enforcement of the traffic laws of Ohio a more uniform matter, and further to avoid confusion concerning who is a police officer in an arrest situation.

But whatever.  So long as the prosecutor wins the case…

If you need representation against drunk driving charges, you can call me at 614.580.4316.  I don’t charge for initial consultations to see if I can help you.  If you decide you want to hire me after we speak, then we can go from there on what it will cost.