Inquiring STOP, Illegal
Does a law enforcement officer, either by statute or common law, have the authority or right to stop a motorist on the highways of the state of Washington, who has not committed a misdemeanor in the officer’s presence and is not suspected by the officer of having committed a felony, for the sole purpose of determining whether or not the motorist has a valid operator’s license on his person?
We answer your question in the negative.
ANALYSIS
The facts implicit in your question are assumed to be as follows:
A motorist is operating a motor vehicle upon a public highway when he is confronted by a uniformed peace officer. The officer, by use of an arm signal, or some mechanical device such as a red light or siren, directs the operator to drive to the side of the highway and stop. After the vehicle stops, the peace officer demands to see the operator’s driver’s license. The purpose of this inspection is solely to determine whether the operator has a valid driver’s license on his person.
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Under these circumstances, there can be no doubt that such operator’s freedom of locomotion -or liberty to come or go -is restrained. The question remains, however, whether such restraint constitutes an arrest.
4 Am.Jur., Arrest, § 2, contains the following definition:
“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 which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest. . . . However, in all cases in which there is no manual touching or seizure or any resistance, the intentions of the parties to the transaction are very important; there must have been intent on the part of one of them to arrest the other, and intent on the part of such other to submit, under the belief and impression that submission was necessary. . . .”
“Arrest,” as the term is commonly used in the law, has been variously defined by the courts. Perhaps one of the most comprehensive definitions is found in Black’s Law Dictionary, 4th ed., which reads:
“To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand. Ex parte Sherwood, 29 Tex. App. 334, 15 S.W. 812. Physical seizure of person by arresting officer or submission to officer’s authority and control is necessary to constitute an ‘arrest.’ Thompson v. Boston Pub. Co., 285 Mass. 344, 189 N.E. 210, 213. It is a restraint, however slight, on another’s liberty to come and go. Turney v. Rhodes, 42 Ga. App. 104, 155 S.E. 112. It is the taking, seizing or detaining the person of another, touching or putting hands upon him in the execution of process, or any act indicating an intention to arrest. [Citing cases]”
In order to constitute an arrest, it is generally recognized that four elements must be present:
1. Intent to arrest.
2. Under real or pretended authority.
3. Accompanied by seizure or detention of the person.
4. Which is so understood by the person arrested. 6 C.J.S., Arrest § 1.
ANSWER = NO !
FROM:
JOHN J. O’CONNELL Attorney General
ROBERT J. HALL Assistant Attorney General
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