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 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 ....