De Facto Arrests: What Are They, When Does a Detention Become an Arrest and What Facts Determine It?

From the DA’s Desk
By Robert Phillips  
Deputy District Attorney (Ret.) 

Case Law and Legal Issues:

Lawful detentions and illegal de facto arrests 

De facto arrests and the use of handcuffs 

United States v. In (9th 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 ....