The First District holds that a woman, placed in a police car, and denied use of her cellphone, is not under arrest until the police officer intends to put her under arrest.
March 2, 2016
When an officer responded to a report of a one-car accident, where Hall reported that she had struck a guard rail after swerving to miss an animal. Although the officer detected the odor of alcohol, Hall spoke clearly and cooperated. He placed her in the back of his cruiser for safety and investigated. When he returned to his vehicle, he detected a "very strong" odeor of alcohol, so he asked her if she had consumed any. She at first denied and then admitted to having drinks several hours earlier. The officer told her she was under investigation for an OVI and asked her to exit the vehicle for sobriety tests. When she asked to use her phone, the officer told her should could not due to the investigation. At that point, Hall called the officer a "son-of-a-bitch" and kicked at the back windows. The officer then placed her under arrest.
The trial court granted Hall's motion to suppress, finding the officer did not have probable cause to arrest at the time she could not use her phone while confined in the cruiser.
The First District did not agree, reasoning that an arrest occurs when there is (1) an intent to arrest, (2) under real or pretended authority, (3) accompanied by actual or constructive seizure or detention of the person, and (4) that is so understood by the person arrested. Here, it concluded that the officer did not have the requisite intent to arrest until after she became belligerent and he formally placed her under arrest. The odor of alcohol and admission of drinking, with his observation of difficulty with balance, gave him reasonable suspicion to continue the detention. The First District found the refusal to allow her to use her phone to be, "a minimal restraint that enabled the officer to complete the investigation."
When the officer did formally place her under arrest, the First District reasoned that he had probable cause based on her being in a single-car accident, difficulty with balance, the strong odor of alcohol, the admission to drinking, her belligerent behavior, and her refusal to perform the sobriety tests. As a result, the First District granted the State's appeal.