Could an officer handcuff a person during an investigatory stop before establishing probable cause to arrest?

Plain-English summary

An officer asked whether handcuffing a driver during a traffic stop, before confirming that a discarded package contained cocaine, necessarily required probable cause to arrest. In this 1997 informal opinion, an assistant deputy attorney general declined to decide whether the officer's particular case could be prosecuted. He said the local solicitor had discretion over that case.

The letter described the general Fourth Amendment framework. Courts often treated handcuffing during an investigatory stop as turning the encounter into an arrest, which would be invalid without probable cause. The opinion also described decisions allowing handcuffs during a stop when a substantial officer-safety threat justified that restraint. The author said the facts of each encounter mattered; he did not endorse the traffic-stop handcuffing described in the request.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did this letter say officers could always handcuff someone during a temporary stop?
A: No. It said courts often viewed handcuffing as an arrest and evaluated whether a particular safety threat justified restraint during an investigatory stop.

Q: Did the letter rule that the officer's traffic-stop arrest was valid?
A: No. The author expressly deferred to the local solicitor's judgment about the prosecution and did not resolve the specific facts.

Q: What sort of circumstance did the letter identify as supporting handcuffs during a stop?
A: It cited a case involving a suspect with a knife who resisted an officer's attempt to remove it. The danger to officer safety supported restraint in that example.

Q: What happened in the contrasting case the letter discussed?
A: In the Idaho case discussed, the court treated handcuffing and seating the suspect in a patrol car as an arrest. The evidence of danger was insufficient, so the arrest and resulting search were unlawful in that case.

Background and legal framework

The officer described a driver who discarded a package after a traffic stop. The officer handcuffed and seated the driver in a patrol car while checking the package, then arrested him after the package tested as cocaine. The author cited out-of-state cases and the Supreme Court's balancing of seizure intrusiveness against government interests. He limited his response to general law and left the prosecution decision to the solicitor.

This was an informal opinion signed by an assistant deputy attorney general, not a formal opinion personally reviewed by the Attorney General.

Citations and references

• Case discussed: State v. Pannell, 127 Idaho 420, 901 P.2d 1321.

Official title

Involving the handcuffing of a person for temporary detention before establishing grounds for arrest.

Requester

Sam S. Strickland, Patrol Officer, Horry County Police Department

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-3-1997-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/97feb3strickland.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

February 3, 1997

Sam S. Strickland, Patrol Officer
Horry County Police Department
2560 North Main Street, Suite 7
Conway, South Carolina 29526

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Re: Informal Opinion
Dear Officer Strickland:
You note that while on patrol recently, you encountered a situation involving the handcuffing of a person for temporary detention. You state that you
... stopped a car for a traffic violation and when the driver exited the vehicle he threw a small plastic package on the ground. We were located in a gas station parking lot and there were other people around. I needed to investigate the package as quickly as possible and also deal with the driver's traffic violations. I immediately hand-cuffed the driver, told him he was being detained, that he was not under arrest at this moment, and sat him in the back seat of my patrol car. I then walked over to the package, which was clear plastic, and found what later tested to be cocaine. The driver was then informed that he was being arrested and handled as such from there on.

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You further advise that the Assistant Solicitor told you that you could "not put handcuffs on anyone without the probable cause to arrest and charge them with a criminal violation, regardless of the totality of the circumstances."

It is of course, the policy of this Office generally to defer to the local Solicitor in any prosecution decision with respect to a case the Solicitor is handling. As we stated in Op.Atty.Gen., Op.No. 89-70 (July 11, 1989).

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REMBERT C. DENNIS BurLor~G

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PosT OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

Officer Strickland
Page 2
February 3, 1997
... this Office can only set forth the general law ... in the abstract. As with any prosecutorial decision made by the Circuit Solicitor, the judgment call as to whether to prosecute a particular individual or whether a specific prosecution is warranted, or is on sound legal ground in an individual case, remains a matter within [the Solicitor's] exclusive discretion and jurisdiction.

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Thus, as to any specific case or specific factual circumstances, we do not "second guess" the Solicitor. At best, therefore, I am· able to enclose a number of cases which I have gathered which relate to the use of handcuffs. State v. Pannell, 127 Idaho 420, 901 P.2d 1321 (Ida.1995), in particular outlines in the area where the use of handcuffs is applied in an investigatory stop as opposed to an arrest situation. The Court in that case concluded that placing the defendant in handcuffs and seating him in a patrol car constituted a warrantless arrest subsequent to an investigatory stop. The evidence that any threat posed to the officers was not sufficient to the threshold necessary to justify the use of handcuffs, led the Court to conclude that the arrest was unlawful, and, the search of the vehicle was conducted as incident to an unlawful arrest, thereby resulting in the suppression of the evidence. The Court cited an earlier case, State v. Johns, 112 Idaho 873, 736 P.2d 1327 (1987) as representing the typical situation where handcuffs would be justified in an investigatory stop situation. In Johns, the '"use of handcuffs was [deemed] a reasonable precaution for the officer's safety."' 736 P.2d at 1332. There, the officer realized the suspect had a knife and when the officer attempted to remove the knife, the suspect resisted. Thus, the Court in Pannell concJuded that Johns "was an extraordinary case where the substantial risk of imminent violence was readily apparent and justified the officer's use of 'reasonable force' to maintain the 'status quo'." In contrast to Johns, the situation in Pannell was less menacing to the officer and Pannell noted that "when faced with the same question and a less compelling suggestion of imminent danger, other courts have held that the use of handcuffs to restrain a suspect exceeded the bounds of an investigatory detention and amounted to an arrest." [See cases referenced in Pannell, 901 P.2d at pp. 1323-1324]. Thus, Pannell held that
[w]hile we acknowledge that there was some evidence in this case suggesting that Pannell might have posed a threat to the officers' safety, we believe that the evidence was not suffi-

Officer Strickland
Page 3
February 3, 1997
cient to meet the high threshold needed to justify the use of handcuffs as part of an investigative detention. 90 I P.2d at 1325.

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And in United States v. Ortiz, 835 F.Supp. 824 (E.D.Pa.1993), the Court concluded that the handcuffing of a suspect on a jetway as he disembarked from flight from Florida was not a reasonable investigatory stop. Said the Court, "... even regarded as an investigatory stop, the jetway handcuffing was an unreasonable seizure, and therefore an unlawful one under the Fourth Amendment." Id. at 829. The United States Supreme Court has stated that "[d]etermining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). In short, the question of use of handcuffs in an investigatory stop situations must

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be evaluated upon the basis of the need to protect the officer's security. Typically, courts have concluded that the use of handcuffs tum the situation into an arrest and if there is no probable cause, the arrest is deemed invalid. There are situations, however, when the use of handcuffs has been deemed valid in an investigatory stop situation where the officer's safety was threatened. Each case must be viewed upon its own merit depending upon all the facts. This Office, however, defers to the Solicitor's judgment in evaluating whether a particular case will be prosecuted. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I am Very truly yours,

R~ok

Assistant Deputy Attorney General
RDC/ph
Enclosures