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View Full Version : What is an arrest, versus just being detained?



3rd_shift
09-01-2007, 04:32 PM
When I took security academy (yes, it's quite insignificant compared to police academy ;) ), I was told that an arrest was when one deprives another of thier liberty and/or freedom of movement by words and/or by deeds.

Once an arrest is made, the Miranda law kicks in from what I heard.

Still, there have been more than a few episodes of the long running TV show "Cops" showing people being "detained" in handcuffs.
Maybe some of you can help to clear the air on this one.
Thanks. :)

Narco
09-01-2007, 04:47 PM
Someone is under investigative detention to determine if they should be arrested for a certain offense. If you are arrested you are obviously being charged with an offense and taking a ride to jail. Some courts however disagreee as to what situations are a detention vs an arrest.

There is no Miranda "law". Once a person is under arrest and the police want to question them about that specific crime for which they were arrested that person must be read their Miranda warnings.

I've had perps think that since I did not read them their "rights" it invalidated the arrest which is not true. I didn't need to read them Miranda b/c I didn't need to question them regarding their current charges.

SgtScott31
09-01-2007, 05:13 PM
When I took security academy (yes, it's quite insignificant compared to police academy ;) ), I was told that an arrest was when one deprives another of thier liberty and/or freedom of movement by words and/or by deeds.

Once an arrest is made, the Miranda law kicks in from what I heard.

Still, there have been more than a few episodes of the long running TV show "Cops" showing people being "detained" in handcuffs.
Maybe some of you can help to clear the air on this one.
Thanks. :)

As far as TN is concerned (and most states), if we have reasonable suspicion that you are committing a crime, have committed a crime, or about to commit a crime, we can stop and investigate for a reasonable amount of time. At that time, you are not necessarily under arrest, but you are not free to leave either (some may call it an investigative detention). You may or may not be placed in handcuffs. If we feel you are a threat to our safety (or others), or you are a flight risk, then we will probably handcuff you. Whether you are cuffed or not, if you should try to leave before we have finished our investigation, then we arrest for TCA 39-16-602, "resist stop, frisk, arrest, or search." It is the same offense for an "obstructing justice" charge.

Miranda only applies when we have arrested someone and decide to ask questions that may illicit an incriminating response. I have rarely ever read Miranda. I develop enough PC to arrest and take the arrestee to jail. If they want to fight the charge, then we will do it in court.

just joe
09-01-2007, 08:47 PM
If you are a security person, Miranda doesn't apply to you anyway.

Dinosaur32
09-02-2007, 12:01 AM
95% of my Crim Pro class in law school did not know that arrest does not equal miranda.....took a couple of classes to get it straight for them.

Starsky53
09-02-2007, 12:52 AM
I have fellow officers go Miranda Crazy.....I keep telling them: Without BOTH elements, ARREST & INTERROGATION (politically correct term INTERVIEWING) there is no NEED for MIRANDA WARNING. Some guys think their arrest will be thrown out without it. Been in court and defended my actions with this basic principle hundreds of times......lawyers don't want us to know about the REAL way to use it.

I can question a skell, and get a confession.....without Miranda
I can arrest and he can give me an unsolicited confession, and it also is valid without Miranda.

Playing the way the rules dictate.

Fuzz
09-02-2007, 06:49 PM
you can be detained for reasonable suspiscion that a crime has been or is about to be committed. Based on the circumstances that detention can just be standing there, sitting on the curb, handcuffed/no handcuffs, sitting in a patrol car, etc. You can be questioned without miranda during this detention. Once a person has been significantly moved they are considered arrested so its not like in the movies where you are "taken downtown" for questioning without an arrest. Once an arrest has been made a miranda admonishment/warning/etc must be given only before any questioning regarding the crime is asked. General informational questions (name,address,DOB,emergency contact info, etc) may be asked without miranda.

deputy x 2
09-02-2007, 07:02 PM
You can be detained/ handcuffed and NOT be under arrest.

On the tv show cops, the officer is usually heard reading the person his rights. BUT you only have to mirandize them IF you are going to interrogate them.

Dinosaur32
09-03-2007, 01:15 AM
And even if you want to interrogate the suspect, no need to warn until the situation is under control and your safety is assured........

Softscrubb
09-03-2007, 03:30 AM
1. you may detain anyone to investigate their potential involvement in a crime which has or is occurring.
2. you may or may not handcuff (officer discretion).
3. detention plus 'significant movement' is an arrest (unless the subject volunteers to be moved to a location, station, curbside)
4. statements given under detention are not subject to Miranda.
5. there is always Behelier
6. once an arrest is made, no direct questioning of the specific incident until Miranda given.
7. 'expressed' vs. 'implied' (some states/counties don't take implied)
8. take your time, don't rush to were you have to mirandize

good luck,

scrubb

Narco
09-03-2007, 04:13 AM
Lots of guys are too quick to read Miranda. Detectives will often thank you later if you scoop up the perp and deliver him to CID w/o having Mirandized him.

ray8285
09-03-2007, 12:02 PM
There are two things required before Miranda comes into play. 1) you question a person in regards to a crime AND 2) they are unable to leave. I can question a person in regards to a crime but as long as I make them aware they are free to leave regardless of what they tell me, I do not have to Mirandize them.

Taylor1430
09-04-2007, 04:34 AM
When I took security academy (yes, it's quite insignificant compared to police academy ;) ), I was told that an arrest was when one deprives another of thier liberty and/or freedom of movement by words and/or by deeds.

Once an arrest is made, the Miranda law kicks in from what I heard.

Still, there have been more than a few episodes of the long running TV show "Cops" showing people being "detained" in handcuffs.
Maybe some of you can help to clear the air on this one.
Thanks. :)


Using an example to clear the air, lets say a call goes out for a robbery that just occurred at the local 7-11. Clerk says the suspect is a white male, blue t-shirt, with blue jean shorts. The suspect is 5'10 and weighs about 180lbs. and is wearing a blue striped hat. The clerk says the subject left in a light colored sedan.

You are responding to the call and see a silver 4 door car. The passenger is a white male, 5'9 and roughly 170 lbs. You can see that he has on a dark colored t-shirt and is wearing a Dallas Cowboys hat with blue and silver stripes.

The guy you see fits the description enough for you to find out what is going on. You stop the guy....and detain him for further investigation. He is not under arrest but he is not free to leave. You have detained him. Then the clerk comes up for an identification. The clerk says the subject you have is the robber. You have just gone from detained to an arrest. If the clerk says that is not the guy, you have just gone from detained to "have a nice day".

grumpyirishman
09-04-2007, 08:55 AM
Miranda applies in a POLICE CUSTODIAL INTERROGATION. If a person is not free to leave, whether under arrest or not and you wish to ask questions pertaining to a crime, Miranda applies.

In the United States, the Miranda warning is a warning given by police to criminal suspects in police custody, or in a custodial situation, before they are asked questions relating to the commission of a crime. A custodial situation is where the suspect's freedom of movement is restrained although he is not under arrest.
;)

Nightshift va
09-04-2007, 10:46 AM
For Police or Sworn person's with arrest authority an arrest is when due to facts known by the officer the officer has Probable Cause that a crime has been commited and an arrest can be made. Detention falls under the inbetween period where an officer has "Resonable Suspicion" to believe a crime has been commited and still has to formulate Probable Cause for arrest. It's like a stepping chart. The actual physical detention though wheter it's with handcuffs or not letting a person leave or is not free to go does not have to rise to the level of PC in order to detain but has to merely have reasonable suspicion building towards PC. If neither exist then detention should not be conducted without consent. As far as Miranda that could be another forum thread altogether. Bottomline is Miranda applies if they are in custody and you intend on questioning them about the crime. The kicker is the definition of "custody" most judges see as what the perp felt versus what the officer knew as to what defines it. That said, Miranda is not needed if you do not intend on questioning the subject.
It's discussions like this that totally support my comment in other threads that we are truely professionals.

Gene L
09-04-2007, 10:51 AM
It's a matter of time. We don't have an "arrest for suspicion" law in GA. The only way we could handcuff a person and him NOT be under arrest is to take him back to a location for identification, and the clock is ticking on that.

The handcuffing would be for the Officer's safety.

From court cases, we have about 20 minutes of "detention" wihtout an arrest, unless the detention leads to more PC for an arrest. And when the investigation focuses specifically on the suspect, it's Miranda time. No "take him downtown" unless he truly is under arrest.

Nightshift va
09-04-2007, 10:54 AM
you can be detained for reasonable suspiscion that a crime has been or is about to be committed. Based on the circumstances that detention can just be standing there, sitting on the curb, handcuffed/no handcuffs, sitting in a patrol car, etc. You can be questioned without miranda during this detention. Once a person has been significantly moved they are considered arrested so its not like in the movies where you are "taken downtown" for questioning without an arrest. Once an arrest has been made a miranda admonishment/warning/etc must be given only before any questioning regarding the crime is asked. General informational questions (name,address,DOB,emergency contact info, etc) may be asked without miranda.
I agree with you and you are 100% right on the money. The supreme court has also made decisions supporting exactly what you are saying about when miranda applies. The problem I see with our judges are they base what defines "custody" as as to what the suspect felt at the time versus what the Officer knows as when the custody became an arrest.

CruiserClass
09-04-2007, 12:43 PM
A custodial situation is where the suspect's freedom of movement is restrained although he is not under arrest.
;)


That's not necesarily true. A traffic stop restrains your freedom of movement but is not considered a custodial situation and does not require Miranda. Merkemer V McCarty established this in 1984, unless there is newer case law that I'm not aware of. If so, please update me.

Dinosaur32
09-04-2007, 04:43 PM
Cruiser...there's a bit of a difference between a traffic stop and a detention for a criminal act.....I'm not going to be convicted if the cop asks if I knew hoe fast I was going, that's irrelevant, the only thing that counts is his knowledge through his calibrated equipment. If I stop someone because he matches the description of a perp and I question him about the criminal act without giving the Miranda warnings, here in NY I think I have a problem. Can probably get away with questions around the periphery of the act but not the act itself.

star25what
09-04-2007, 05:58 PM
Yeah many people think just because you arrest them you HAVE to read them Miranda. Not the case!

3rd_shift
09-04-2007, 06:01 PM
Just reread the rules.
Original author of this thread here.

Looks like this is mainly confirming what my limited security training stated both times I attended security academy.
Yes, I went twice instead of just "requalifying" on my own because of the changing laws to keep my posterior covered as good as possible. ;)
No regrets there. :)

It looks like at this stage that, if the suspect is indeed proven guilty after all, it's all sins forgiven.
I must admit it is understandable in that case.
(Guilty until proven guilty)
What happens if that is not so?
Guilty until proven innocent?


Historically, what happens if one being detained decides not to answer any questions anyways and ends up being found innocent after all? :confused:

CruiserClass
09-05-2007, 08:46 AM
Cruiser...there's a bit of a difference between a traffic stop and a detention for a criminal act.....I'm not going to be convicted if the cop asks if I knew hoe fast I was going,

The traffic stop in question was a DUI, so it was a criminal act and his statements could be used to convict him. Read the case, its a pretty interesting one.

My point though, was that freedom of movement can be constrained without the situation being custodial. Traffic stops restrict freedom of movement, but it is held in the above court case that it is not custodial for purposes of Miranda. Some officers (and attorneys) also forget that Miranda is from the point of view of the suspect, not the officer. If you know you're going to arrest them and they aren't free to leave Miranda is still not required as long as the ficticious Reasonable Person in their situation would feel they are free to leave.

mdrdep
09-06-2007, 04:37 AM
The traffic stop in question was a DUI, so it was a criminal act and his statements could be used to convict him. Read the case, its a pretty interesting one.

My point though, was that freedom of movement can be constrained without the situation being custodial. Traffic stops restrict freedom of movement, but it is held in the above court case that it is not custodial for purposes of Miranda. Some officers (and attorneys) also forget that Miranda is from the point of view of the suspect, not the officer. If you know you're going to arrest them and they aren't free to leave Miranda is still not required as long as the ficticious Reasonable Person in their situation would feel they are free to leave.

To take it a little further, the person can realize they are not free to leave at that moment but that they might be in a short while. Even though the person realizes they are detained but not arrested, custody for Miranda purposes does not exist.

Gene L
09-06-2007, 09:02 AM
You have to develop PC for a DUI just like any other arrrest.

Also, as I said above, you can detain someone in handcuffs, no arrest, for your own safety.

While the person being stopped view is important, it is not necessarily the final say on whether he's under arrest and merits Miranda. That's probably the most common defense against statements made before an arrest and before Miranda, but it all depends on the circumstances.

There is a "reasonable" amount of time that you can detain someone and it not be an arrest. It depends on the individual situation, and as you get more experienced and hear stories of others you'll realize about what your court will tolerate under what circumstances.

If there are, say, a dozen witnesses to a murder, the detainment time will be far longer than, say, a DUI test.

3rd_shift
09-11-2007, 08:24 PM
O I C.

Then, I have these related questions.

How long is it ok to detain someone in your jurisdiction (typically)?
This can vary depending on location as I have read so far.

What happens to that person if they refuse to answer questions while they are unable to leave? :confused:

Stephen :)

PS:
I never ever did a citizens arrest when I worked security.
I wasn't paid enough to. :p

mdrdep
09-11-2007, 11:08 PM
The length of a detention has to be viewed from the totality of the circumstances. 30 minutes may be okay in some circumstances and completly inappropriate in another.

A person does not have to answer questions even though I don't have to advise him per Miranda. Of course failure to answer questions may not help him out or sink him. All depends on the circumstances. I've had guys that were able to explain what they were doing and it saved them a trip to jail, others have only dug a deeper grave.

tripledouble
09-12-2007, 04:30 AM
O I C.

Then, I have these related questions.

How long is it ok to detain someone in your jurisdiction (typically)?
This can vary depending on location as I have read so far.

What happens to that person if they refuse to answer questions while they are unable to leave? :confused:

Stephen :)

PS:
I never ever did a citizens arrest when I worked security.
I wasn't paid enough to. :p
How long? A reasonable amount of time. No actual time limit written in stone.

If they refuse to answer, they refuse. That's their right. I don't want to make the obvious seem obvious, but the part that says "You have the right to remain silent" is fo' realz.

3rd_shift
09-16-2007, 11:29 AM
How long? A reasonable amount of time. No actual time limit written in stone.

If they refuse to answer, they refuse. That's their right. I don't want to make the obvious seem obvious, but the part that says "You have the right to remain silent" is fo' realz.
This pretty well finishes up what I was looking for.
Thanks to all who replied and answered all my questions. ;)

Stephen :)