You're not under arrest, but you can't leave (1 Viewer)

[Zow]

I was actually "detained" last year but not arrested. I was not free to leave though, so I'm not sure what the difference is.

That's the difference. When you're detained, you're not arrested. They can only hold you for a certain number of hours.

It also means that they're not required to Mirandize you. And you won't be appointed an attorney. Whee!

Technically, as long as a cop doesn't try to question you, they never have to Mirandize you.

Additionally, the test for whether the officer must read you your rights is not whether you're under arrest but whether the interrogation is custodial. An investigation becomes custodial when a reasonable person in your position would not feel free to leave. Factors to consider, as pointed out by Buckfast, are things like location, whether room is locked, whether in cuffs, etc.

This is going to make this discussion much more complicated.

Then let's just stick with "whether one can reasonably believe they are free to leave" and dispense with the legal terms.

But that doesn't actually fit the example given by Abe.

Sure it does. It doesn't matter if he was detained or arrested. If, due to constraint by law enforcement he reasonably believed be couldn't leave (which I suspect would be the case if he were "detained"), the officers wanted to ask him questions designed to elicit an incriminating response they would have had to have Mirandized him.

Where it may seem like we're splitting hairs here is that in the event a person is detained, you'd be correct in that the officers could deny him a lawyer, ask questioned for public safety reasons, etc. But that's not a custodial interrogation.

 

[Fennis]

You can't swing a dead cat in the FFA without hitting a lawyer guy. Where are they now?

they were all chasing the ambulance that had the (now) dead cat in it.

 

[Henry Ford]

I was actually "detained" last year but not arrested. I was not free to leave though, so I'm not sure what the difference is.

That's the difference. When you're detained, you're not arrested. They can only hold you for a certain number of hours.

It also means that they're not required to Mirandize you. And you won't be appointed an attorney. Whee!

Technically, as long as a cop doesn't try to question you, they never have to Mirandize you.

Additionally, the test for whether the officer must read you your rights is not whether you're under arrest but whether the interrogation is custodial. An investigation becomes custodial when a reasonable person in your position would not feel free to leave. Factors to consider, as pointed out by Buckfast, are things like location, whether room is locked, whether in cuffs, etc.

This is going to make this discussion much more complicated.

Then let's just stick with "whether one can reasonably believe they are free to leave" and dispense with the legal terms.

But that doesn't actually fit the example given by Abe.

Sure it does. It doesn't matter if he was detained or arrested. If, due to constraint by law enforcement he reasonably believed be couldn't leave (which I suspect would be the case if he were "detained"), the officers wanted to ask him questions designed to elicit an incriminating response they would have had to have Mirandized him.

Where it may seem like we're splitting hairs here is that in the event a person is detained, you'd be correct in that the officers could deny him a lawyer, ask questioned for public safety reasons, etc. But that's not a custodial interrogation.

My point was that he said he was not free to leave. Differentiating between an arrest and Abe's situation by saying the difference is whether one reasonably believes he is free to leave doesn't handle that.

 

[McGarnicle]

You're pretty much right, McG. It's amazing how many real life suspects proceed with giving a voluntary statement without an attorney when it would have been in their best interest to remain silent and request an attorney. Oftentimes, a case may have been declined by the U.S. Attorney's Office or DA's office, but for the fact that the defendant confessed to the crime in a voluntary interview with law enforcement officers.

What I see on fictional TV shows all the time -- the perp is sitting there in the room getting grilled. The questions make him a little uncomfortable so he lawyers up. Suddenly the cops are like, oh crap, now the lawyer gets involved.

We know once the lawyer shows up, he's going to advise his client not to say anything at all, most likely.

Instead of requesting a lawyer, the perp could simply ask to leave, right?

Advice I give in pretty much any situation, especially where a person is guilty:

1. Ask the officer if you're free to leave. If he says yes, do so. If he says no, remain calm and physically comply with any commands of the officer.

2. Politely request to speak to an attorney before answering any question about a fact or what happened, no matter how trivial. If you plan on engaging in criminal activity, have your attorney's contact information with you at all times.

3. Never, under any circumstances, grant a police officer permission to search something or some place that he's asking your permission to search. If a cop is asking your permission to do something, he likely doesn't have legal grounds to do it otherwise. Politely decline.

Another good one: If you're pulled over by the police (traffic stop) and they ask you "Do you know why I pulled you over?" never answer with something like "because I was speeding?" or "I rolled through that last stop sign?" Just say "No, Officer. I don't".

Yep. Again, especially if you are guilty of something greater (like transporting pounds of meth on the inside of your door panel).

The only caveat I'd have to this is, and I'm getting this from officers I trust, is that the likelihood of getting just a warning will go up if you are contrite and cooperative. So, if you're a person with little to no prior traffic violation and you were doing something like merely speeding (which is incredibly difficult to factually defend in court), there is a certain risk/reward benefit to admitting your menial violation and apologizing for it. That said, the safest or most conservative thing to do is to politely say that you don't know why you were pulled over.

This worked 2 out of 3 times for me. I was pulled over in my home state twice(NC), knew I was speeding admitted the speed I was going and they let me go with a warning. The out of state one(WVA) dropped the speed from 90 to 75 (70 limit) but still ticketed me.

Yep. The few times I've gotten stopped, I do a few simple things that seem to make a difference, like making a lot of eye contact, keeping my hands visible on the wheel, and if he says I was speeding I say something like "Oh gosh, I'm really sorry about that". In one case the officer seemed surprised and immediately became less confrontational and immediately just gave a verbal warning and said have a nice day.

 

[Zow]

I was actually "detained" last year but not arrested. I was not free to leave though, so I'm not sure what the difference is.

That's the difference. When you're detained, you're not arrested. They can only hold you for a certain number of hours.

It also means that they're not required to Mirandize you. And you won't be appointed an attorney. Whee!

Technically, as long as a cop doesn't try to question you, they never have to Mirandize you.

Additionally, the test for whether the officer must read you your rights is not whether you're under arrest but whether the interrogation is custodial. An investigation becomes custodial when a reasonable person in your position would not feel free to leave. Factors to consider, as pointed out by Buckfast, are things like location, whether room is locked, whether in cuffs, etc.

This is going to make this discussion much more complicated.

Then let's just stick with "whether one can reasonably believe they are free to leave" and dispense with the legal terms.

But that doesn't actually fit the example given by Abe.

Sure it does. It doesn't matter if he was detained or arrested. If, due to constraint by law enforcement he reasonably believed be couldn't leave (which I suspect would be the case if he were "detained"), the officers wanted to ask him questions designed to elicit an incriminating response they would have had to have Mirandized him.

Where it may seem like we're splitting hairs here is that in the event a person is detained, you'd be correct in that the officers could deny him a lawyer, ask questioned for public safety reasons, etc. But that's not a custodial interrogation.

My point was that he said he was not free to leave. Differentiating between an arrest and Abe's situation by saying the difference is whether one reasonably believes he is free to leave doesn't handle that.

I was operating under the impression we were discussing the difference still under the cloak of Miranda.

 

[AhrnCityPahnder]

Time to dust off my copy of the Erie Doctrine.

 

[Arizona Ron]

My Link

 

[Wilfredo Ledezma]

 

[Long Ball Larry]

I was actually "detained" last year but not arrested. I was not free to leave though, so I'm not sure what the difference is.

I believe some states have a law which allows them to keep people in custody for short periods of time (e.g. 24 hours) for questioning for investigative purposes, but without sufficient probable cause for arrest. I should have added that to my last post.

That time limit is also upped to 72 hours if the person in question makes ridiculous NBA trade rumors and proposals on message boards.

 

[Long Ball Larry]

Lawyerguys...this is strictly to quench my own curiosity

Let's be honest about your motivations, McGarnicle: you felt like Woz wasn't posting enough.

 

[Officer Pete Malloy]

True. I'm a middle-aged white dude that drives an Impala.

WHAT HAPPENED TO THE MAZDA

Still have it. The wife drives it.

 

[cosjobs]

You're pretty much right, McG. It's amazing how many real life suspects proceed with giving a voluntary statement without an attorney when it would have been in their best interest to remain silent and request an attorney. Oftentimes, a case may have been declined by the U.S. Attorney's Office or DA's office, but for the fact that the defendant confessed to the crime in a voluntary interview with law enforcement officers.

What I see on fictional TV shows all the time -- the perp is sitting there in the room getting grilled. The questions make him a little uncomfortable so he lawyers up. Suddenly the cops are like, oh crap, now the lawyer gets involved.

We know once the lawyer shows up, he's going to advise his client not to say anything at all, most likely.

Instead of requesting a lawyer, the perp could simply ask to leave, right?

One thing I'm curious about is how one goes about finding a lawyer after they have been arrested. I guess that is just something you need to find beforehand, right?

This is FBG's. We all have lawyers on speed dial that we play golf with every weekend.

Guess I am slacking.

Not if you have your Governor/Senator/SC Justice on speed dial and you play golf with them on weekends. Some of us are a notch above hired legal help.

 

[gianmarco]

Another good one: If you're pulled over by the police (traffic stop) and they ask you "Do you know why I pulled you over?" never answer with something like "because I was speeding?" or "I rolled through that last stop sign?" Just say "No, Officer. I don't".

I always say "I thought you wanted to sell me tickets to the Policeman's ball."

I always say "Because you thought I had donuts?"

 

[Henry Ford]

You're pretty much right, McG. It's amazing how many real life suspects proceed with giving a voluntary statement without an attorney when it would have been in their best interest to remain silent and request an attorney. Oftentimes, a case may have been declined by the U.S. Attorney's Office or DA's office, but for the fact that the defendant confessed to the crime in a voluntary interview with law enforcement officers.

What I see on fictional TV shows all the time -- the perp is sitting there in the room getting grilled. The questions make him a little uncomfortable so he lawyers up. Suddenly the cops are like, oh crap, now the lawyer gets involved.

We know once the lawyer shows up, he's going to advise his client not to say anything at all, most likely.

Instead of requesting a lawyer, the perp could simply ask to leave, right?

Advice I give in pretty much any situation, especially where a person is guilty:

1. Ask the officer if you're free to leave. If he says yes, do so. If he says no, remain calm and physically comply with any commands of the officer.

2. Politely request to speak to an attorney before answering any question about a fact or what happened, no matter how trivial. If you plan on engaging in criminal activity, have your attorney's contact information with you at all times.

3. Never, under any circumstances, grant a police officer permission to search something or some place that he's asking your permission to search. If a cop is asking your permission to do something, he likely doesn't have legal grounds to do it otherwise. Politely decline.

Another good one: If you're pulled over by the police (traffic stop) and they ask you "Do you know why I pulled you over?" never answer with something like "because I was speeding?" or "I rolled through that last stop sign?" Just say "No, Officer. I don't".

Because it's impossible for you to truly express how much of a power-mad dickbag you are while we're both going 45 mph?