Is the Encounter a Stop or Arrest

Bailey v. State

987 A.2d 72 (Md. 2010).

Bailey was convicted of carrying dangerous controlled substances.


Whether the encounter between Bailey and the officer constituted a stop or an arrest?


An arrest occurs when an officer has the intent to arrest (shown through objective actions), under the authority as an officer, seizes a person who understands they are arrested.


This was not a lawful stop and frisk. Additionally, this was an unlawful arrest. Reversed.


The officer was patrolling on foot in a high crime area when he noticed the defendant hanging in the shadows in the home. At this point, the officer yelled over asking if the defendant lived in the home (twice) and the defendant provided no response. Then the officer approached the defendant, could smell a substance, grabbed the defendants hands and put them on his head. Finally, the officers patted down the defendant where they found a dangerous controlled substance in a glass vial.


As the officer was yelling across to the defendant and approaching the defendant, we are in the realm of a consensual encounter. However, once the officer grabs the defendant’s hands, we are either in the realm of stop or seizure. Here, this was not a lawful Terry stop because there was no reasonable suspicion of a weapon present (hands were exposed, no reactions to questions, etc.). Additionally, there was no probable cause for an arrest (being in a high crime area and non responsive to questions do not give rise to probable cause). Consequently, the discovery of the vial appeared when there were no grounds to conduct the search.

Additional Notes

As a review:

  • A stop is where the subject does not feel like they are free to leave. See Mendenhall. Here, the stop occurred when the officer grabbed the officers hands.
  • Terry stop requires reasonable suspicion of a weapon. Even if there was reasonable suspicion, the scope was exceeded because the officer did not know that the vial contained drugs until later tested.

Example of an arrest test (which requires probable cause to execute):

  1. Whether the officer has the intent to arrest
  2. If the officer had real or pretend authority
  3. The subject is seized and detained
  4. The subject understands the seizure as an arrest.

However, this is really a fact based rule. Other considerations made by courts to determine whether an arrest occurs is:

  1. The amount of time the detention lasts (20 minutes? 60 minutes? etc.)
  2. How the subject is restrained (handcuffs are not required, see Bailey and Grier)
  3. The location of the subject
  4. Phrases made by the police to the subject

Arrest Warrants

State v. Thomas

124 P.3d 48 (Kan. 2005).


Whether the police can enter the home of a third-party when they are pursuing the subject of an arrest warrant.

  1. An arrest can happen in a public place regardless of a warrant or not (as long as there is probable cause).
  2. Arrest warrants are sufficient to enter the home of the owner if the owner is the subject of the warrant and the officers have reason to believe that the subject is present.
  3. However, if the subject of the warrant is different than the homeowner, then there needs to be a search warrant showing probable cause that the subject of the arrest warrant is present.
  4. If there is no search warrant, there needs to be evidence of consent or exigent circumstances to enter the home. Exigent circumstances can be shown by a fleeing subject, or potential for the destruction of evidence.

Exigent circumstances were shown that are sufficient for the officers to enter. Affirmed.


Based on the information provided by a confidential informant, the officers obtained an arrest warrant for Prouse and staked out the location where he was believed to be (not his home). When Prouse exited the home, the officers told him to stop. Prouse then ran back into the home where the officers pursued him and arrested him. While in the home, they saw in plain view the makings of a meth lab and removed other people to outside. At this point, Thomas (the homeowner) produced drugs and turned himself in.


Using the rule above, the officers waited until the subject of the warrant was outside the home before attempting to conduct the arrest. There was no evidence that the warrant was used as a pretext to search the rest of the home. Instead, the pursued the subject, arrested him, and noticed other illegal activities occurring in plain view of the officer’s lawful pursuit.

Additional Notes

Officers can make an arrest in a public place without a warrant but need an arrest warrant if they wish to enter the home. If they are entering a third-party’s home, they also need a search warrant or exigent circumstances.

Commonwealth v. Molina

786 N.E.2d 1191 (Mass. 2003).


Police Discretion in Making Arrests

The traditional common law arrest power rules where the officer could make an arrest for any crime made within their presence but needed a warrant based on probable cause for a felony for crimes outside of the officers presence.

Lawrence Sherman & Richard Berk, The Minneapolis Domestic Violence Experiment (1984)

This is a social study of the Minneapolis police department to see what is the best way to mitigate domestic violence. There were three potential ways to mitigate: (1) cause an arrest, (2) send the primary aggressor away, (3) try and give advice and provide mediation. This third approach was the method primarily used before this study. However, this study concluded that (1) arrests resulted into reduced repeat offenses and (2) listening to the victim reduced repeat offenses.

This study altered the traditional common law arrest power. Now, instead officers could make arrests for misdemeanors (not felonies) made outside of their presence.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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