Case Law and Legal Issues:

Lawful detentions and illegal de facto arrests 

De facto arrests and the use of handcuffs 

United States v. In (9^th Cir. Dec. 30, 2024) 124 F.4th 790 

Rule: The use of handcuffs in detaining a suspect may convert a lawful detention into an illegal de facto arrest if probable cause to arrest has not yet been developed. However, it may not be a de facto arrest despite the lack of probable cause if the use of handcuffs is necessary to ensure the safety of the officers or the public. 

Facts: On March 4, 2020, Las Vegas Metropolitan Police Department bike squad officers Haley Anderson, Daniel Diaz and Timothy Nye observed a car with California license plates illegally parked in a red-curb no-parking zone about 50 feet from the Las Vegas Strip. It was noticed that one of the vehicle’s taillights was out. The officers made contact with the vehicle’s sole occupant, defendant Larry Seng In. As Officer Diaz made contact with In, Officer Anderson approached from the passenger’s side. Shining her flashlight into the backseat area, she observed a Glock pistol on the floor. Upon informing Officer Diaz of this, she instructed him to tell In to keep his hands up. Officer Diaz ordered In to get out of the car. Ignoring the officer, In instead attempted to collect the vehicle’s documentation (presumably from the glove compartment).  

Officer Diaz ordered him to stop reaching for his paperwork and to put his hands up. In complied. Officer Diaz opened the door, put his hand on In’s wrist, unbuckled his seatbelt, and pulled him out of the car. The officer pushed In against the closed back door of the car while holding his hands behind his back. Asked if he had any weapons on him, In said that he did not. In also denied having any weapons in the car. Officer Diaz began patting In’s outer clothing as she asked him if he’d ever been arrested. In acknowledged he had, saying it was related to marijuana. Officer Diaz handcuffed In as Officer Anderson asked him again whether he had any weapons in the car. In responded for the second time that he did not. Knowing this to be untrue, Officer Anderson asked him “Why is there a Glock back there ” In said he had gone to the shooting range, to which Officer Diaz asked “Did you? In some sandals? Do we look new to you ” Warning In that he would be in a lot of trouble if he didn’t start answering truthfully, Officer Anderson asked him if he was a felon. In said he wasn’t.  

When asked again about the Glock, In acknowledged it was his. Asked why he was so nervous, In responded “Because I didn’t do nothing except sit in my car.” Officer Anderson explained to In that he was parked in a red zone and had a taillight out. As she walked the handcuffed In to the curb, she asked him “You never been arrested out here ” apparently referring to Las Vegas. In responded that he’d never been in trouble in Las Vegas, that he he’d never even visited Vegas before. As Officer Andersen called LVMPD’s records office from her cell phone to determine whether In had warrants or convictions in Nevada, Officer Diaz read him his Miranda rights. In asked if he was getting arrested, to which Officer Diaz responded “No, I, we—we like to read you your rights, that way you understand before we go ahead and talk to you.” Officer Diaz asked In what he had been arrested for in California, to which In responded that he had a “grand-theft-on-the-person” arrest, but thought it would no longer be on his record because it had been more than seven years earlier.  

Asked if the officers could search his car, In consented. But then concerned what legal effect In being in handcuffs might have on the legal validity of his consent, the officers decided that it was better to wait until they saw what else might develop before they released him. At that point, Officer Anderson decided to “Triple I” him, referring to a non-routine process used to obtain interstate criminal history records. Officer Anderson’s reason for taking this step was because In had admitted to having a grand theft arrest in California. The Triple I check resulted in information that In did have prior felony convictions in California, making him a “felon in possession of a firearm.”  

In was arrested. The officers, erring on the side of caution, obtained a telephonic search warrant from a state court judge to search In’s car and recovered the gun. In was charged in a federal indictment with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In moved to suppress the gun in district court, contending that it was obtained as a result of an unlawful “de facto” arrest. Specifically, In argued that the officers’ actions, in particular their decision to handcuff him, escalated a valid Terry stop detention into an unlawful de facto arrest because the officers handcuffed him before they had probable cause to believe he was prohibited from possessing the gun. Although a magistrate judge who received live testimony on this issue denied In’s motion, the federal district court judge disagreed, and suppressed the gun. The government appealed. 

Held: The Ninth Circuit Court of Appeals reversed, finding that In had only been detained – as opposed to arrested – until it was discovered that he had a felony record in California. The issue, of course, was whether – had been illegally arrested without probable cause at the point he was handcuffed. The parties conceded the initial detention was lawful. Once detained, however, the officers physically secured him by the use of handcuffs.  

In argued that when handcuffed, his detention became a “de facto arrest,” done without probable cause, as there was not sufficient evidence that he might be guilty of any offense. It wasn’t until later when it was discovered he had a felony conviction in California, a necessary element of the charge of being a felon in possession of a firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(2).  

The court held, however, that the use of handcuffs does not always mean that a person has been arrested. It depends upon the circumstances.  

Here, the court held that; “(t)he use of ‘especially intrusive means’ of effecting Terry stops (detentions) has been held permissible in certain circumstances, including (1) where the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight, (2) where the police have information that the suspect is currently armed, (3) where the stop closely follows a violent crime, and (4) where the police have information that a crime that may involve violence is about to occur.”  

In this case, an unsecured handgun had already been observed on the floor of the back seat of In’s car. When asked if he had a gun in the car, In said that he did not. Although physically cooperative until this point, In became at least verbally uncooperative when he answered untruthfully the officer’s question about having a gun in his car. His untruthful response reasonably raised the possibility that the stop could turn extremely dangerous due to the information gap that existed between the officers and In concerning the gun on the floor of the car’s back.  

The safety risks posed by the stop were also amplified because the stop occurred within 50 feet from the Las Vegas Strip, a densely populated tourist area, and the officers were patrolling on bicycles without the protection of a patrol car if the traffic stop turned ugly. If the officers had not handcuffed In, they would have had to rely on their ability to physically overpower him if he attempted to reach for the gun that was visible and loose on the floor of his car.  

Considering the totality of the circumstances, the court held that the officers had a sufficient and reasonable basis to fear for their safety, justifying their decision to handcuff In so that their safety was assured during their investigation. The officers’ conduct by handcuffing him was held to have justifiably protected both the officers and the general public. Because the officers’ conduct was reasonable under the circumstances, the Terry stop did not escalate into a de facto arrest without probable cause merely because he had been handcuffed. 

Author's Notes and Opinions: The court here never attempts to define the term “de facto arrest.” However, we know from prior experience that this is a term of art that refers to a situation where an individual for all intents and purposes has been arrested, even if the formal legal requirements for an arrest haven’t yet been met. This occurs when there is a lack of probable cause to support the arrest or an arrest warrant has not been obtained. It’s a situation where an individual is detained and controlled to a degree that is similar to a formal arrest, but without the formal legal process.  

A de facto arrest can occur anytime a contact degenerates into a situation where a reasonable person would have believed they are in fact under arrest, even if not intended by the officers. The use of handcuffs is a common means by which officers can unintentionally cause a de facto arrest. The display of firearms and/or an overwhelming show of force are other indicators of a de facto arrest. (Mosley v. Superior Court (2024) 101 Cal.App.5^th 243, 254; and People v. Celis (2004) 33 Cal.4^th 667, 675.) As illustrated here, it will always depend upon the circumstances. (See Washington v. Lambert (9^th Cir. 1996) 98 F.3^rd 1181, 1188-1190; Sialoi v. City of San Diego (9^th Cir. 2016) 823 F.3^rd 1223, 1232.)  

For safety reasons, when in doubt, use the cuffs. Better to lose a suppression motion than to lose a cop. But it helps if an officer includes in any subsequent reports an explanation as to why the cuffs, guns, etc., were deemed necessary. It is also a good idea to tell the suspect that despite the cuffs, drawn firearms, etc., he or she is not under arrest, but is only being detained pending further investigation, and make sure it’s also recorded by an officer’s body cam.