            IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


JAHQUELL DAVIS,

                Appellant,

 v.                                                        Case No. 5D17-745

STATE OF FLORIDA,

                Appellee.

________________________________/

Opinion filed August 31, 2018

Appeal from the Circuit Court
for Orange County,
John H. Adams, Sr., Judge.

James S. Purdy, Public Defender, and
Thomas J. Lukashow, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca       Rock
Mcguigan, Assistant Attorney General,
Daytona Beach, for Appellee.


EDWARDS, J.

       This case deals with the application of the Melton1 elements to Appellant’s claim

that his transport to and lengthy detention at the sheriff’s office constituted an “arrest” for

purposes of Florida’s speedy trial rule, which requires a person charged with a felony to



       1   Melton v. State, 75 So. 2d 291 (Fla. 1954).
be tried within 175 days of arrest. See Fla. R. Crim. P. 3.191(a), (d).2 Appellant, Jahquell

Davis, argues that he was “arrested” on May 29, 2014, when he and several others were

transported to the sheriff’s office. Over a period of several hours, each was questioned

in turn by a single detective as part of an investigation into a violent robbery that occurred

earlier that day at a metal recycling facility.

       When it was Appellant’s turn to be interviewed he agreed to talk with the detective

and voluntarily submitted to DNA and gunshot residue testing at the station. Following a

pre-trial evidentiary hearing, the trial court denied Appellant’s speedy trial-based motion

for discharge. Appellant was tried, found guilty of attempted first-degree murder with a

firearm, robbery with a firearm, and conspiracy to commit robbery with a deadly weapon,

and sentenced to forty years in the Department of Corrections. We agree with the trial

court’s factual findings and its legal conclusion that an investigatory detention took place

on May 29, 2014, which did not constitute an arrest for speedy trial purposes. For the

reasons set forth in more detail below, we affirm the trial court’s denial of Appellant’s

motion for discharge.

       A trial court’s ruling on a speedy trial-based motion for discharge presents mixed

questions of fact and law. See State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001).

The trial court’s factual findings must be sustained if supported by competent, substantial

evidence, but its legal conclusions are subject to de novo review. Id.




       2The Florida Supreme Court adopted rule 3.191 in 1971 to provide a procedural
mechanism for ensuring that the constitutional right to a speedy trial guaranteed by the
Sixth Amendment is enforced in this state. State v. Lott, 286 So. 2d 565, 566 (Fla. 1973).


                                                  2
                                  BACKGROUND FACTS

       On May 29, 2014, sheriff’s deputies responded to a robbery and shooting at OU

Metal Recycling. Video surveillance was used to identify the getaway vehicle involved in

the robbery; it was later found outside a house. Using a loudspeaker, deputies ordered

the occupants out of the house. When nobody responded to that command, the S.W.A.T.

team was deployed to the scene. The stand-off ended approximately ninety minutes later,

when Appellant, four other males, and two females exited the house. The males were

instructed to stand along the curb near the house while a show-up was conducted, during

which one victim recognized one of the men—not Appellant—as the driver of the getaway

vehicle.

       Deputies believed that it would be impractical to interview the five males at the

house because it was in a high crime area, the S.W.A.T. team and news media

surrounded the area, and the detective handling the investigation had multiple people to

interview. Accordingly, the males were handcuffed, placed into individual squad cars,

transported to the sheriff’s department, and placed in separate rooms in a secured area

of the building, where their handcuffs were removed. After being read their Miranda3

rights, they were sequentially interviewed by the same detective. All the males were

eventually swabbed for gunshot residue and DNA.

       The detective, who referred to Appellant’s status as “investigative detention,”

began his interview of Appellant by apologizing for the delay in getting to him. Appellant

testified at his evidentiary hearing that he agreed to speak to the detective and consented




       3   Miranda v. Arizona, 384 U.S. 436 (1966).



                                             3
to the gunshot residue and DNA testing because he wanted to help and also wanted to

clear his name. During this time, Appellant was not informed he was free to leave.

Indeed, outside the door of his interview room was a uniformed deputy who would not

have permitted him to leave. During the approximately four to six hours that Appellant

was at the sheriff’s department, he was never told he was under arrest, that he was

suspected of committing the robbery, or that he was charged with any crime.

       The detective ended his interview of Appellant by advising him that he was not

under arrest and that he was free to leave. The detective offered Appellant transportation,

which Appellant declined. At the time Appellant was released, there was no information

connecting him to the robbery or shooting beyond his presence at the house where the

getaway vehicle was found.

       Appellant was not formally arrested until June 17, 2015, after the investigation was

essentially completed and after two different witnesses identified Appellant as one of the

robbers. The information charging Appellant was filed on June 19, 2015. Appellant

moved for discharge, arguing that his prosecution was barred by Florida’s speedy trial

rule as far more than 175 days had passed since his May 29, 2014 detention.

       Appellant preserved this speedy trial issue by making a pre-trial motion, seeking a

writ of prohibition, renewing his motion during trial, and pursuing this timely appeal

following his jury trial and conviction.

                                           ANALYSIS

       The only disputed legal issue is whether Appellant’s detention on May 29, 2014,

constituted an arrest for speedy trial purposes.      If it was an arrest for speedy trial

purposes, then he was entitled to a permanent discharge as requested because of the




                                              4
time that passed between detention and trial. However, as the trial court did below and

as we do now, employing the four Melton elements to analyze Appellant’s May 29, 2014

detention leads to the conclusion that the detention was not an arrest for speedy trial

purposes.

       Before we begin our analysis of whether this was an “arrest,” it is important to

recognize and acknowledge that a person may be “in custody” for purposes of requiring

Miranda warnings, yet not have been “arrested” for purposes of the speedy trial rule.

Williams v. State, 757 So. 2d 597, 599 (Fla. 5th DCA 2000) (citing Griffin v. State, 474

So. 2d 777, 779 (Fla. 1985)). Likewise, police “seizure” of an individual may trigger Fourth

Amendment protection and yet not constitute an arrest for purposes of speedy trial. Id.

The rights listed in the Miranda warnings and the Fourth Amendment’s protection against

unreasonable search and seizure are triggered when a person is taken into custody or

seized, regardless of whether any criminal charges are contemplated or levied.

       The Sixth Amendment guarantees the accused a speedy trial to limit the duration

of possible public scorn, adverse impact on employment, and other consequences

brought about by arrest or indictment that can only be cleared by a verdict of not guilty or

permanent dismissal of the charges. See Klopfer v. North Carolina, 386 U.S. 213, 222

(1967). “This guarantee [of a speedy trial] is an important safeguard to prevent undue

and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying

public accusation and to limit the possibilities that long delay will impair the ability of an

accused to defend himself.” United States v. Ewell, 383 U.S. 116, 120 (1966); see also

State v. Lott, 286 So. 2d 565, 566 (Fla. 1973) (quoting Ewell with approval). Given that

the speedy trial rule is designed to protect against the adverse impacts of arrest or




                                              5
indictment pursuant to criminal charges, it follows that the right to a speedy trial is

triggered only “(1) when the person is arrested as a result of the conduct or criminal

episode that gave rise to the crime charged or (2) when the person is served with a notice

to appear in lieu of physical arrest.” Fla. R. Crim. P. 3.191(d).

       Appellant, the State, the trial court, and this court all agree that the seminal case

on what constitutes an arrest under the speedy trial rule is Melton v. State. In that case,

the Florida Supreme Court defined an arrest as follows:

               It is uniformly held that an arrest, in the technical and restricted sense
       of the criminal law, is “the apprehension or taking into custody of an alleged
       offender, in order that he [or she] may be brought into the proper court to
       answer for a crime.” When used in this sense, an arrest involves the
       following elements: (1) A purpose or intention to effect an arrest under a
       real or pretended authority; (2) An actual or constructive seizure or
       detention of the person to be arrested by a person having present power to
       control the person arrested; (3) A communication by the arresting officer to
       the person whose arrest is sought, of an intention or purpose then and there
       to effect an arrest; and (4) An understanding by the person whose arrest is
       sought that it is the intention of the arresting officer then and there to arrest
       and detain him.

Melton, 75 So. 2d at 294 (internal citations omitted).4 All four Melton elements must be

present to conclude that an arrest has occurred. Brown v. State, 623 So. 2d 800, 802

(Fla. 4th DCA 1993).

       The first Melton element is “[a] purpose or intention to effect an arrest under a real

or pretended authority.” 75 So. 2d at 294. Here, the detective testified that it was not his

purpose or intent to arrest Appellant on May 29, 2014, because Appellant was not

suspected of having committed any crime at that point. Thus, the trial court’s pretrial

factual finding that there was no purpose or intent to effect an arrest on May 29, 2014, is


       4  Although Melton was decided in 1954, it remains the benchmark for defining
“arrest” and has been repeatedly cited for that purpose, including as recently as 2012 by
our court. See Ehmke v. State, 86 So. 3d 591, 591 (Fla. 5th DCA 2012).


                                               6
supported by competent, substantial evidence.           The trial court received additional

evidence as the case progressed which confirmed that there was initially no probable

cause to support a legal arrest, and that Appellant was not a suspect on May 29, 2014.

The DNA testing was inconclusive as to Appellant, and the deputy who performed the

gunshot residue testing could not recall the outcome of the test performed on Appellant.

The testimony at trial established that he only became a suspect much later, when a co-

defendant identified Appellant as the shooter in exchange for a plea. As another result

of their ongoing investigation, the police located somebody who was very familiar with

Appellant and testified that Appellant was one of the robbers in the surveillance video,

based on his physical traits, clothing, and other mannerisms. This additional evidence

was relevant to Appellant’s repeated renewal of his motion for discharge.

       There are many similarities between the subject case and State v. Lail, in which

detectives went to Lail’s house and told him they received a complaint that he sexually

abused his stepdaughter. 687 So. 2d 873, 873 (Fla. 2d DCA 1983). Lail agreed to go

with them to further the investigation. Id. After reading Lail his Miranda rights, they placed

him in a police car and drove him to the station where he remained for seven hours. Id.

at 873-74. Initially, Lail was left alone in a holding cell for two hours while an officer went

to the hospital to interview the victim. Id. at 874. After Lail again confirmed his willingness

to talk and executed a Miranda-rights waiver form, a detective from the sex crimes unit

interviewed Lail for approximately an hour and a half. Id. When his interview was

completed, Lail stayed two more hours at the police station in order to voluntarily submit

to a physical body inspection during which he provided hair and blood samples. Id. The

detective testified that at that time the evidence was insufficient to establish probable




                                              7
cause to justify an arrest. Id. Lail was released. Fifteen months later, Lail was arrested

on a warrant and formally charged with sexual battery. Id. The trial court ordered Lail

discharged, ruling that he had been arrested for speedy trial purposes when he was

detained initially for questioning. Id. The Second District reversed, finding that the

detention was an investigatory detention that did not trigger the running of the speedy trial

time period. Id. at 875.

       We note that there are two factual distinctions between Lail and this case. First, it

is unclear from the opinion whether Lail was handcuffed, whereas here Appellant was

cuffed for several hours on the day of his initial interview.5 However, the fact that a

defendant was handcuffed does “not convert [a] detention for questioning into an arrest.”

Id. (quoting State v. Christian, 442 So. 2d 988, 990 (Fla. 2d DCA 1983)). Second, Lail

voluntarily accompanied the police to the station, whereas here Appellant was taken there

involuntarily, although he testified that he voluntarily remained there to “help” and to “clear

his name.” In Christian, the Second District rejected the trial court’s reasoning “that

involuntary custodial interrogation by the police at the station was equivalent to an arrest

which began the running of the speedy trial time.” 442 So. 2d at 989–90. Therefore,

those two factual differences do not change the applicability of Lail or the analysis of the

first Melton element—there was no evidence of an intent to arrest on May 29, 2014.

       According to Brown, the May 29 detention cannot constitute an arrest because

one of the Melton elements was not present. 623 So. 2d at 802. Therefore, the trial

court’s decision that the speedy trial rule was not triggered can be affirmed based on the



       5The trial court stated that Lail had been placed in a holding cell and handcuffed,
while the court of appeal simply stated that there was no evidence that Lail was ever
handcuffed. Lail, 687 So. 2d at 875.


                                              8
absence of the first element alone. Nevertheless, for the purpose of completeness, we

will look at the presence or absence of the other three elements.

       The second Melton element is “[a]n actual or constructive seizure or detention of

the person arrested by a person having present power to control the person arrested.”

Melton, 75 So. 2d at 294. It is undisputed that Appellant was actually seized and detained

by the sheriff’s deputies and the detective. Thus, the trial court’s finding that the second

Melton factor was satisfied is supported by competent, substantial evidence and is legally

correct.

       The third Melton element is “[a] communication by the arresting officer to the

person whose arrest is sought, of an intention or purpose then and there to effect an

arrest.” Id. On May 29, 2014, Appellant was not formally arrested, in the sense that no

booking report was prepared, no booking photos were taken, and Appellant was not

fingerprinted. When initially denying Appellant’s motion for discharge, the trial court found

that there had been no actual communication from the detective to Appellant that he was

under arrest or that the detective intended to arrest him. In fact, Appellant was not told

on May 29, 2014, that he was under arrest. Following Appellant’s voluntary submission

to testing that day, the detective told Appellant that he was free to walk out of the sheriff’s

office, which is exactly what he did. Appellant’s unconditional release parallels Lail, where

that defendant was released following his lengthy detention. See Lail, 687 So. 2d at 874.

Thus, the trial court’s finding here that the third Melton element was absent is supported

by competent, substantial evidence and is legally correct as well.

       The fourth and final Melton element is “[a]n understanding by the person whose

arrest is sought that it is the intention of the arresting officer then and there to arrest and




                                              9
detain him.” Melton, 75 So. 2d at 294. Appellant argues that he had a reasonable belief

that he had been arrested because he was forced from the house, handcuffed,

involuntarily taken to the police station in a police car, and locked in the interview room

for several hours. Although nobody told him he was under arrest, nobody told him until

the end of the day that he was free to leave. These facts could support a finding that the

detective’s actions reasonably led Appellant initially to believe that he was under arrest,

but Appellant’s belief as to whether he was under arrest was not static. As part of its

reason for denying the motion for discharge, the trial court noted Appellant testified that

after being at the sheriff’s office for a period of time, he was cooperative in the interview

and voluntarily submitted to testing. The trial court stated that Appellant presented no

evidence that an arrest was contemplated, and further found the fact that Appellant was

released rather than arrested would have led to the understanding that the police did not

intend to arrest him then and there. Thus, the trial court’s determination that the fourth

Melton element was lacking is supported by competent, substantial evidence and is

legally correct.

       Appellant relies heavily on this court’s opinion in Griggs v. State, 994 So. 2d 1198

(Fla. 5th DCA 2008), to argue that the deputies’ actions and what happened to him during

his four- to six-hour detention amounted to a de facto arrest that triggered the speedy trial

rule on May 29, 2014. First of all, Appellant’s reliance on Griggs is misplaced because of

significant factual differences between the two cases. In Griggs, the police performed a

traffic stop of Griggs because they already had information of his involvement in a drug

transaction. Id. at 1199. While at the scene of the traffic stop, a K-9 unit alerted to

methamphetamines in Griggs’s car and the drugs were removed from the vehicle by one




                                             10
of the ten police officers present. Id. A police investigator then asked Griggs if he wanted

to “come down to my office and talk about it.” Id. Thus, unlike in the instant case, the

police in Griggs had every reason to suspect that Griggs had committed a crime before

they began their encounter and certainly as they took him in. While Griggs agreed to go

to the station where he was questioned, our court predicted that had Griggs refused the

invitation, “[h]e would instead have been taken directly to jail.” Id. at 1201. In fact, the

investigator told Griggs he would only let him go if he agreed to act as a drug informant

for the investigator. Id. at 1199. After agreeing to be an informant, Griggs was released.

Id. The investigator testified that if Griggs had not agreed at that time to act as an

informant, he would have been immediately booked and jailed. Id. That testimony

established an intent to effect an arrest which would not be carried out only if, first, Griggs

spoke with them and, second, he agreed to be an informant. In both cases the police

officers denied they ever used the word “arrest.” Id. Importantly, Griggs “testified that he

thought he was under arrest because he had been told by police officers on two occasions

that he occupied that unfortunate status.” Id. On the other hand, here, Appellant never

claimed that an officer told him he was under arrest.

       In Griggs, our court analyzed the facts using the Melton elements and concluded

that all four elements were present, meaning that Griggs had been arrested for speedy

trial purposes and was entitled to discharge because he had not been charged or tried

until more than a year after the traffic stop and custodial questioning. Id. at 1201.

Somewhat confusingly, although this court acknowledged that the right to a speedy trial

was a Sixth Amendment right codified in a rule of criminal procedure, the opinion

discusses Florida’s stop and frisk law, which protects the Fourth Amendment rights to be




                                              11
free from unreasonable search and seizure. However, Griggs did not raise any Fourth

Amendment issues. Continuing down that same path, the Griggs opinion then cites to

and quotes from several cases that each dealt with Fourth Amendment search and

seizure issues, but none of which dealt with speedy trial issues. Similarly here, Appellant

claimed no violation of his Fourth Amendment rights. Thus, Appellant erroneously relies

upon the discussion of Fourth Amendment law in Griggs to argue that the Melton

elements are trumped by involuntary, custodial questioning.

       Notably, eight years before deciding Griggs, we decided Williams v. State, in which

we explicitly stated that it was possible to be seized for Fourth Amendment purposes

without being arrested for speedy trial purposes. 757 So. 2d 597, 599 (Fla. 5th DCA

2000). Twenty-seven years before Griggs, we decided State v. Naughton, in which we

noted that even an actual or constructive seizure or detention of the person to be arrested

would not constitute being “in custody” for speedy trial purposes. 395 So. 2d 581, 582–

83 (Fla. 5th DCA 1981). Our opinion in Griggs makes no mention of the Williams or

Naughton cases, nor does it mention any of the many other cases that noted the

importance of distinguishing between an “arrest” for speedy trial purposes and a “seizure”

for Fourth Amendment situations or being placed in “custody” for Miranda rights

purposes.6   The Sixth Amendment guarantees the accused a speedy trial.             As the



       6 See Griffin v. State, 474 So. 2d 777, 779 (Fla. 1985) (noting that a seizure may
trigger Fourth Amendment protections without being a technical arrest, and that a person
may be “in custody” for Miranda but not speedy trial purposes); Christian, 442 So. 2d at
989 (noting that “[a] person may be deemed ‘in custody’ for purposes of his Miranda
rights, yet not ‘in custody’ for purposes of the speedy trial rule”); Dean v. Booth, 349 So.
2d 806, 807 (Fla. 2d DCA 1977) (holding that although defendant taken to the police
station for questioning was “in custody” for Miranda purposes, he was not “in custody”
within the meaning of the speedy trial rule); Snead v. State, 346 So. 2d 546, 547–48 (Fla.
1st DCA 1976) (finding that defendant taken to station for questioning and released


                                            12
discussion of Fourth Amendment seizure has no bearing on being arrested for speedy

trial purposes, Appellant’s reliance on that portion of the Griggs opinion is unavailing.

       We find that the trial court’s factual conclusions are supported by competent,

substantial evidence, and its legal conclusion—that Appellant was not arrested on May

29, 2014, for speedy trial purposes based on the Melton elements—is also correct.

Accordingly, we affirm the denial of Appellant’s motion for discharge.

       We agree with the Fourth District’s conclusion in Brown, 623 So. 2d at 802, that

under the present state of the law all four Melton elements must be present for a custodial

detention to constitute an arrest.     In our opinion, requiring the presence of all four

elements demands a level of clarity and certainty that is often lacking in these situations.

It places too much emphasis on the presence or absence of any single element.

Furthermore, two elements in the current test require the trial court to perform very

subjective analysis. For element one, the court must somehow determine whether the

officer subjectively intended to effect an arrest, and for element four, the court must divine

the defendant’s subjective understanding of whether the officer subjectively intended to

effect an arrest. We believe that all concerned would be better served when considering

speedy trial issues if a “totality of the circumstances” standard were employed, using more

objective factors. Under the proposed changes no one element would be determinative,

the need for analyzing predictable testimony regarding the subjective intent or

understanding of the police or defendant would be minimized, and a proper balance could

be struck between (1) giving the State leeway to investigate and build a case and (2)




without being charged was not in custody for speedy trial rule purposes, while declining
to discuss whether in custody for Fourth Amendment purposes).


                                             13
protecting the accused from unreasonably prolonged subjection to the potential personal,

social, and economic harm attendant to being arrested for or charged with a crime. We

recognize that under Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973), we are not authorized

to make these changes; so, we certify the following question to be of great public

importance:

             Should the determination of whether an arrest has occurred for
      speedy trial purposes be based on an objective consideration of the totality
      of the circumstances, including but not limited to: (1) whether the person
      was detained with the intent to effect an arrest under a real or pretended
      authority; (2) whether there was an actual or constructive seizure or
      detention by someone with the present power to control the person
      detained; (3) whether there was a communication by the detaining officer to
      the person whose detention is sought of an intention or purpose then and
      there to effect an arrest; and (4) whether a reasonable person in the
      detainee’s position would have understood that he or she was under arrest?



      AFFIRMED; QUESTION CERTIFIED.

SAWAYA, J., concurs.
ORFINGER, J., concurring in result with opinion.




                                          14
ORFINGER, J., concurring in result with opinion.                      CASE No. 5D17-745

       Because I am bound by our supreme court’s decision in Melton v. State, 75 So. 2d

291 (Fla. 1954), I concur, albeit reluctantly, with the result reached by the majority.

However, I believe the four-part test established in Melton to determine when an arrest

occurs is overly formalistic and relies too heavily on the subjective intent of the law

enforcement officer who is questioning or detaining the individual.

       The trial court denied Appellant’s motion to discharge based on the first Melton

element—“[a] purpose or intention to effect an arrest under a real or pretended authority,”

75 So. 2d at 294—and concluded that the detective had no purpose or intent to arrest

Appellant. In affirming that decision, the majority places great weight on both the first

Melton element as well as the fourth Melton element—“[a]n understanding by the person

whose arrest is sought that it is the intention of the arresting officer then and there to

arrest and detain him,” id.—in concluding that the officer never communicated an intent

to arrest Appellant. Both of these conclusions depend on the subjective intent of the

police officer.

       In my opinion, the subjective views of a police officer who detains an individual

should have little bearing on whether the detention constitutes an arrest. Rather, an arrest

should be determined using an objective standard—whether the individual’s freedom of

action is curtailed to a degree associated with a formal arrest, Park v. Shiflett, 250 F.3d

843, 850 (4th Cir. 2001), and how a reasonable person in the individual’s position would

have understood his or her position, Caso v. State, 524 So. 2d 422, 423 (Fla. 1988). The

objective standard assesses the coercive effect of the police conduct, as a whole, and

not the isolated details of the conduct. 5 Am. Jur. 2d Arrests § 5 (2018). In making this




                                            15
assessment, the objective standard examines the totality of the circumstances, including

the particular police conduct and the setting in which the conduct occurs. Id. Such an

examination involves exploring, among others, the length of the detention; the restrictions

placed on the individual’s personal movement; the force, if any, that was exerted; the

information conveyed to the individual; and the severity of the intrusion. United States v.

Rasberry, 882 F.3d 241, 247 (1st Cir. 2018).

       In this case, the detective described Appellant as being held in “investigative

detention.” One court defined “investigative detention” as

              a seizure within the meaning of the Fourth Amendment but,
              unlike an arrest, it need not be supported by probable cause.
              . . . An officer can stop and briefly detain a person for
              investigative purposes if the officer has a reasonable
              suspicion supported by articulable facts that criminal activity
              may be afoot, even if the officer lacks probable cause.
              Cortez [v. McCauley], 478 F.3d [1108,] 1115 [(10th Cir. 2007)]
              (quotations omitted). An investigative detention evolves into
              an arrest when the scope of police conduct is no longer
              reasonably related to the circumstances initially justifying the
              seizure. United States v. Melendez-Garcia, 28 F.3d 1046,
              1051 (10th Cir. 1994). “An arrest is distinguished by the
              involuntary, highly intrusive nature of the encounter.” Cortez,
              478 F.3d at 1115 (quotation omitted).

Manzanares v. Higdon, 575 F.3d 1135, 1148 (10th Cir. 2009). Here, Appellant was

handcuffed and detained for four to six hours. The duration of detention alone provides

strong evidence that Appellant was under arrest rather than merely subject to an

investigative detention. Id. (indicating that detention of 90 minutes or longer constitutes

arrest, rather than investigative detention).

       Further, it is well-established that an officer may temporarily detain an individual

and investigate if the circumstances reasonably indicate that the detained individual has

committed, is committing, or is about to commit a crime. § 901.151(2), Fla. Stat. (2014);



                                                16
see also Terry v. Ohio, 392 U.S. 1, 38 (1968). However, the detention “shall not extend

beyond the place where it was first effected or the immediate vicinity thereof.”            §

901.151(3), Fla. Stat. (2014). “Where . . . the detained individual is physically removed

from the scene and involuntarily transported to the police station for questioning and/or

investigation, the courts have had little difficulty in construing such a detention to be a de

facto arrest . . . .” Griggs v. State, 994 So. 2d 1198, 1201 (Fla. 5th DCA 2008) (quoting

Saturnino–Boudet v. State, 682 So. 2d 188, 193 (Fla. 3d DCA 1996)). Here, Appellant

was handcuffed, placed in a squad car, and transported away from the scene and to the

sheriff’s office where he remained under guard and not free to leave for the next four to

six hours. This is further evidence that Appellant was under arrest rather than simply

subject to an investigative detention.7

       The majority holds the Appellant was not under arrest. But if not under arrest, what

was his status? Is there something between a Terry stop and an arrest? I think not. To

effectuate a Terry stop, the detention must be temporary, based on reasonable suspicion,

and at the location of the stop. See § 901.151(3), Fla. Stat. (2014). To make an arrest,

law enforcement needs probable cause. Here, the detective admittedly had neither and

yet Appellant was detained for four to six hours.         The majority never states what

Appellant’s status was while being detained. And if law enforcement needed more time

to investigate, could Appellant’s detention have been extended indefinitely?

       To view the detention here as authorized creates a new level of citizen encounter

not countenanced by Terry, a case decided well after Melton. I believe that we would be



       7While the cases that I rely on are either search and seizure or Miranda cases, I
believe they are applicable to the analysis here because an objective test is easier to
apply and less influenced by the subjective views of the investigating officer.


                                             17
well served by adopting an objective, totality of the circumstances test to determine if an

arrest has taken place for speedy trial purposes. However, because Melton continues to

be controlling, I concur in the result reached by the majority.




                                             18
