Can A Defendant Resist Arrest If the Arrest is Over?

That is the question the defendant sought to frame in State v. Ondo. After the defendant had been handcuffed and read his Miranda rights, advised he was placed under arrest for domestic assault, the deputy began to empty the pockets of defendant so that all his personal possessions would remain in his house before he was transported to the station. During this process, defendant attempted to move for the door, for which he was Tased. Defendant kicked the deputy and received another Tase. Defendant was arrested for resisting arrest. On appeal, defendant argued for a definition of arrest that is complete once defendant has been handcuffed and read Miranda rights, rendering him in custody. The Southern District decided that definition was "too restrained." "Appellant was handcuffed and he had been read his Miranda warnings, but the evidence indicates that Appellant had not been placed in the patrol car, and the arresting officer had not completed his arrest procedures, which included emptying the pockets of the arrestee. Appellant resisted the officer's attempts to empty his pockets and resorted to violence to complete his purpose. In order to control Appellant, officers were forced to use a Taser not once, but at least twice. On these facts, it is clear that the officers did not have Appellant sufficiently restrained and Appellant had not yet submitted to the officer's custody." The Southern District adopted a flexible, contextual approach to the definition of arrest. The statute defining arrest, however, does not appear as flexible: "An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise." Section 544.180 RSMo. Since the statute is in the disjunctive, completion of any of the choices should effect a complete arrest. That is why defendant contended once defendant had been restrained and read Miranda rights, he had been actually restrained. The problem with the approach used by the court is it seems to have no logical endpoint -- if the defendant becomes contentious during transport, or booking, hours later, is he still resisting arrest? Other courts have used a contextual approach as well, but the facts allowed a more abrupt end point. When do standard arrest procedures become too attenuated or extended to qualify as "arrest"? Food for thought....