Is a brief investigative stop a seizure within the meaning of the Fourth Amendment?

"The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the right to be free of unreasonable searches and seizures." (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) A "brief investigative stop[]" of a person, commonly referred to in the case law as a detention, is a seizure within the meaning of the Fourth Amendment. (People v. Souza (1994) 9 Cal.4th 224, 229.) To justify a detention, police must have a reasonable, articulable suspicion the individual was or will be involved in criminal activity, whereas a formal arrest (or

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comparable restraint on a person's liberty) is justified only if the police have probable cause to believe the person has committed a crime. (People v. Hughes (2002) 27 Cal.4th 287, 327-328.)

Appellant argues, as best we can determine, that although he was initially detained lawfully, that detention became a de facto arrest when he was handcuffed; at that point there was no probable cause to arrest him; and therefore the de facto arrest violated his Fourth Amendment rights and the evidence obtained by the police as a result of the arrest should have been suppressed. Appellant, however, did not raise this Fourth Amendment claim below. As indicated above, he argued only that his Fifth and Fourteenth Amendment Rights under Miranda were violated. The question of whether a police-detainee encounter constitutes a custodial arrest for Miranda purposes is different from the questions of whether an encounter that starts as a detention later becomes, by virtue of the conduct of the police, a restraint on liberty comparable to a formal arrest for Fourth Amendment purposes. The former question, as indicated above, turns on whether a reasonable person would conclude the restraints used by police were tantamount to a formal arrest, whereas the Fourth Amendment question concerns the reasonableness of police conduct. (Pilster, supra, 138 Cal.App.4th at pp. 1405-1406.) Because appellant did not raise his Fourth Amendment claim below, he is foreclosed from doing so on appeal. (Cf. People v. Williams (1999) 20 Cal.4th 119, 136 [the scope of appellate review of denial of a Penal Code section 1538.5 motion to suppress is limited to the issues raised in trial court].)