Is It a Detention or an Arrest if You Order a Suspect out of a Residence at Gunpoint?

Legal Concepts and Case Citation

• Ordering a suspect out of a residence
• Detentions vs. warrantless arrests in a residence

Rule: Ordering a suspect out of a residence at gunpoint constitutes an arrest despite telling the suspect he is only being detained. Unless done with probable cause and a warrant, such an arrest is illegal.

Summary: 911 callers reported to the police that a man (later identified as the defendant, Ulises Perez) was walking around while displaying a firearm in an area known for its gang activity. Perez was observed by callers putting the gun into a white Kia and entering an apartment. He was found by the police sitting in the apartment. As two officers stood outside on the front patio, they ordered Perez at gunpoint to come out of the apartment, that he was being detained. When he did so, he was handcuffed. An inventory search of the Kia upon impounding resulted in the recovery of a gun and drugs. Charged in state court, Perez’s motion to suppress the evidence was denied.

The appellate court, however, reversed. The court held that Perez, while being ordered out of the apartment and handcuffed, had in fact been arrested, and that it is illegal to arrest a subject in his own residence without probable cause and a warrant, neither of which the officers had in this case.

To qualify as a mere detention, and thus make available ....