Police definition of "detain"

[H&R Glock]

I'm a fan of the television "COP" shows like PD and Cops.
So many times the cop slaps the cuffs on a driver and says "you're just being detained." I think that statement is wrong. I think the cop should say "You're being restrained."
Now if the driver volunteers to stay put during the investigation, that would be "being detained."
At what point does restraint become the multiple act of restraint and detention?????? If you are in cuffs you ain't going nowhere! Putting cuffs on an innocent man is a violation of his freedom. There must be a rule about this somewhere?
Any LEOs out there care to comment?

 

[Kittie]

As a former LEO officer here is the easy way to know.. Is not exact but a general guide line.. It can vary a bit depending on local laws and such. I would recommend contacting local Sheriffs office if you need further details.

"Can you please come over here answer a couple questions?" You are being Questioned. You are willingly coming to the officer and answering their questions of your own free will with the option to walk away at any time. The officer is not responsible for your safety.

"Come over here and answer a couple questions." You are being detained. You do not have the option of walking away as you are being told to stay put and answer questions. Failure to do so leads to escalation of the event. Office is responsible for your safety as you are being detained.

"Come with me to answer some questions." You are being arrested. Officer is removing you from the scene to question you further. This does not always mean in cuffs but you are being held against your will and at this point you should be read your rights and offered the option of a lawyer.

 

[Carl N. Brown]

Until someone comes along, it seems to me that the definition of "detained" is jurisdiction dependent. My curiosity is perked. I would like this to become a LEO explanation of the law as enforced across several jurisdictions.
A disservice of the TV police procedural shows is that the public is given the impression that the Hollywood or New York screenwriter's version of the law is the law everywhere.

 

[Kittie]

I was LEO in AZ and Military jurisdictions. Definition was the same for both. Basically detain means you are holding someone for questioning by telling them to remain in a place for questioning.. You must have reasonable suspicion and you as the officer become responsible for their safety..

Here is the definition per https://definitions.uslegal.com/d/detain/

Detain generally means to prevent from proceeding; to restrict freedom of movement. In criminal law, detain means to hold a person in custody, often for purposes of questioning. A law enforcement officer needs to have a reasonable suspicion of unlawful activity to detain a person. Reasonable suspicion is less than the probable cause needed to arrest a person. The reasonableness of the length of time of detention will depend on the circumstances in each case.

 

[H&R Glock]

Thanks Kittie, but the first:"Can you please come over here answer a couple questions?"
is a question. The second:"Come over here and answer a couple questions." is an order.
In either case I don't hear the officer ask or order the "perp" to respond to either statement on T.V..
Somehow the decision to restrain the driver is made. That is my question! At what point is the decision to use handcuffs made?????Maybe they just don't show or let the conversation be heard that convinces me that cuffs are needed. MY wife is constantly yelling at me that excessive force is used on innocent people.
Knowing the rules is power! What are the rules???

 

[JeffG]

As a former LEO and use of force trainer, I always encouraged the mantra, "cuff then search". Searching, detaining, questioning an unhandcuffed person, leads to flight or assault when the officer gets close to the crux of the contact. Asking, "what is this? about a lump in a pocket or waistband, can get you a foot chase or an assault on your person, to interrupt them getting caught for what's going on. Part of the confusion in television policing is reading a detained person Miranda. Miranda is for arrest. Information gathering and search talk do not need Miranda. The two pronged test of custody and movement require Miranda.

Add to that, the fact that, to increase the action of the TV show, the cameras are riding along with task force level patrol. These are directed patrols on the "mean streets" of theses selected cities, and counties. When they are pulling people over for "no licence plate light", they know who they are pulling over right away. While pulling people over for minor infractions seem a little chicken poop, there is no other practical way to get into a drug dealer's life, or someone suspected of a robbery two weeks ago. So, when officer is stopping this level of "person of interest" the handcuffs are a good idea.
I wish that these television shows would show some "normal" patrol, just to show the public that business as usual is much easier, relaxed, and lower level.

Edit: This may help... https://en.wikipedia.org/wiki/Terry_v._Ohio

 

[H&R Glock]

JeffG! outstanding comment on the problem.
This solves my question to this dilemma with your answer. I read between the lines too. I will leave it to the discretion of the officer on TV!
What I now believe is this: The cops use their own discretion in applying cuffs in the possible violent behavior of people who place themselves in their venue. I would too! Their statement about being detained is probably a half hint of probable release to which the detainee would remain unresponsive. That would keep them peaceable. Good mental trick.

 

[Kittie]

Every LE Agency has set use of force model. This is usually federally passed down, but some will use their own. This creates kinda a guide line for the officer to use on what level of force may be used in any given situation per that department or agency.

One thing people often forget though is how fast things escalate for the officer and the fact that the person reacting is always at the disadvantage. What may seem like over abundant use of force may in fact just be for the better safety of all involved. It is always safer to control the situation than have to react to the suspect once things get too far. That is when people get hurt. Not to mention our media painting all cops to be the bad guys even when they were totally in the right the last almost decade.

There is a video of a new reporter trying to do a basic LE task in the officers shoes. Prior to the day with the police she trash talked them.. After just 1 exercise in how things really work she changed her tune.. I will see if I can find it again.

 

[H&R Glock]

Excellent Kittie! Thank you. Again "I BELIEVE" the cop is using his best judgement when detaining the subject with handcuffs , when the situation , In his judgement," calls for it."
Very few t.v. situations result in the subject being innocent
Police must remember to apologize when they use the force of handcuffs when not called for.
No I won't let my wife put handcuffs on me and threaten me with taking my guns away! Unless she can use illegal forces!

 

[RickD427]

I'm a fan of the television "COP" shows like PD and Cops.
So many times the cop slaps the cuffs on a driver and says "you're just being detained." I think that statement is wrong. I think the cop should say "You're being restrained."
Now if the driver volunteers to stay put during the investigation, that would be "being detained."
At what point does restraint become the multiple act of restraint and detention?????? If you are in cuffs you ain't going nowhere! Putting cuffs on an innocent man is a violation of his freedom. There must be a rule about this somewhere?
Any LEOs out there care to comment?

Don't get nutted up over the distinction between "Detained" and "Restrained." There are no binding definitions of such terms and they're used according to their common meaning. There is also a large body of case law that establishes an officer's ability to detain, to use force, and to arrest.

"Detain" is a term normally used to indicate that a person's freedom of movement is being limited, for a period of time, under the authority of a law enforcement officer. A person can submit to a detention, or they can be restrained if they choose not to submit to the detention. "Detention" is often discussed in the context of Terry v Ohio where the Supreme Court upheld an officer's right to detain a subject based on reasonable suspicion while conducting a field investigation. The case is significant in that reasonable suspicion that a person committed a crime is not sufficient to arrest that person. Subsequent cases have held that the time period for a detention must be reasonable, and that the degree to which freedom is restricted during a detention must also be reasonable.

A "Detention" differs from an "Arrest" in its purpose. An arrest is generally understood as the taking of a person into custody to answer a criminal charge. An arrest requires "Probable Cause" to believe a crime was committed. A "Detention" is investigative in purpose and is to facilitate the determination if a crime has occurred.

Putting cuffs on a person is certainly a limitation of their freedom. Whether or not any right(s) of that person are violated by the cuffing is a different story. Please refer to recent Supreme Court case of Muehler v Mena for a good description of the level of restraint (e.g. "Rules") that may be applied to person(s) under detention.

 

[ka2rzo]

As a former LEO and use of force trainer, I always encouraged the mantra, "cuff then search". Searching, detaining, questioning an unhandcuffed person, leads to flight or assault when the officer gets close to the crux of the contact. Asking, "what is this? about a lump in a pocket or waistband, can get you a foot chase or an assault on your person, to interrupt them getting caught for what's going on. Part of the confusion in television policing is reading a detained person Miranda. Miranda is for arrest. Information gathering and search talk do not need Miranda. The two pronged test of custody and movement require Miranda.

Add to that, the fact that, to increase the action of the TV show, the cameras are riding along with task force level patrol. These are directed patrols on the "mean streets" of theses selected cities, and counties. When they are pulling people over for "no licence plate light", they know who they are pulling over right away. While pulling people over for minor infractions seem a little chicken poop, there is no other practical way to get into a drug dealer's life, or someone suspected of a robbery two weeks ago. So, when officer is stopping this level of "person of interest" the handcuffs are a good idea.
I wish that these television shows would show some "normal" patrol, just to show the public that business as usual is much easier, relaxed, and lower level.

Edit: This may help... https://en.wikipedia.org/wiki/Terry_v._Ohio

Lots of good info here!

JeffG,

I certainly agree with the two-pronged test of custody and movement requiring Miranda. But what if I'm cuffed and I start getting questioned? The LEO considers me to be "detained", but I'd sure consider myself "under arrest" or at least not free to leave. That wouldn't trigger Miranda? Just curious.

 

[JTHunter]

If an officer were to say ANY of those phrases to me, I would immediately ask if I was free to leave. If they said "No", I would ask if I am under arrest. If they say "No" again, I would ask again if I am free to leave - and turn away as if I WAS leaving. If they "laid hands" on me to stop me, I would stop, look at them, then their hands, then back at them and ask if I am being arrested. If not, I will again ask if I'm free to leave.
I do NOT wish to have a "consensual conversation" with any LEO unless I called them for a specific reason (not likely).

 

[JeffG]

"That wouldn't trigger Miranda? Just curious." A lot of it depends on the perception of the detained. If he thought he was under arrest; the public at large is not versed at law, or the practical application. If the officer smelled marijuana smoke, or raw weed, and already knew he was arresting the person, Miranda would be applicable, preventing arguments of when the arrest and subsequent questioning occurred. The attempt to elicit an admission, or further supporting evidence of a crime is what the officer is after. A lot of departments put in a policy to read Miranda early to head off these claims.

If an officer were to say ANY of those phrases to me, I would immediately ask if I was free to leave. If they said "No", I would ask if I am under arrest. If they say "No" again, I would ask again if I am free to leave - and turn away as if I WAS leaving. If they "laid hands" on me to stop me, I would stop, look at them, then their hands, then back at them and ask if I am being arrested. If not, I will again ask if I'm free to leave.
I do NOT wish to have a "consensual conversation" with any LEO unless I called them for a specific reason (not likely).

If you are the subject of an investigative stop, and you attempt to leave, it is likely you will be arrested, and it will be made more than clear to you. You can be legally detained for the purposes of an investigative stop against your will.

 

[Old Dog]

Here's a sample policy some of you may find interesting (Seattle PD).
http://www.seattle.gov/police-manua...voluntary-contacts-terry-stops-and-detentions

I do however, always find it interesting that there are those citizens out there who cannot spare even a few minutes to answer a few questions even when it's fairly obvious they might have witnessed something that could aid in an investigation, can't wait to leave and immediately ask, "Am I being detained?" In my experience there are citizens, and there are responsible citizens.

 

[JohnKSa]

If an officer were to say ANY of those phrases to me, I would immediately ask if I was free to leave. If they said "No", I would ask if I am under arrest. If they say "No" again, I would ask again if I am free to leave - and turn away as if I WAS leaving. If they "laid hands" on me to stop me, I would stop, look at them, then their hands, then back at them and ask if I am being arrested. If not, I will again ask if I'm free to leave.

A good rule to live by is to not get involved in a game of: "Who is the biggest jerk." with a cop. They have a lot more experience than you do, more resources at their disposal and will win every time if they are properly motivated.

Your approach is a very effective way to turn what could be a painless interaction with LE into an arrest. If an officer tells you that you are not free to leave and you attempt to do so, you're almost certainly going to be arrested at that point. If you manage to prompt them to "lay hands" on you, it's a sure bet that your day just got a lot worse than it was going to be otherwise.

Since you say that your goal is to avoid interaction with LE, it is worth pointing out that your approach is virtually guaranteed to prolong the interaction--and is therefore antithetical to your goal.

If you are still convinced of the wisdom of your strategy, you may find it instructive to watch videos of people who have used it to see how it worked out for them.

 

[RickD427]

If an officer were to say ANY of those phrases to me, I would immediately ask if I was free to leave. If they said "No", I would ask if I am under arrest. If they say "No" again, I would ask again if I am free to leave - and turn away as if I WAS leaving. If they "laid hands" on me to stop me, I would stop, look at them, then their hands, then back at them and ask if I am being arrested. If not, I will again ask if I'm free to leave.
I do NOT wish to have a "consensual conversation" with any LEO unless I called them for a specific reason (not likely).

John, Your posting is showing an ignorance of Terry v Ohio, particularly with regard to the ability of an LEO to make a lawful, non-arrest, investigative detention.

The context of your posting suggests that view things as binary: 1) I'm under arrest, or 2) I'm free to leave. That's not what the law provides. Following Terry, there are three (not two) possibilities: 1) You're under arrest (meaning there is probable cause to believe the elements of criminal offense are present, and that you are the party responsible), 2) You're detained and not free to leave (meaning that the officer has reasonable suspicion that criminal activity is afoot) and 3) You're free to leave.

You're free to decline an officer's invite to engage in conversation. But that is unrelated to the officer's legal standing to detain. You should be aware that there may be consequences to such refusal. The U.S. Supreme Court ruled in Salinas v Texas that an officer may use a subject's pre-Miranda silence in the forming of probable cause.

 

[hdwhit]

JeffG wrote:
I wish that these television shows would show some "normal" patrol, just to show the public that business as usual is much easier, relaxed, and lower level.

The problem is that an easy, relaxed patrol may be the norm, but it makes for very dull television.

 

[RickD427]

Lots of good info here!

JeffG,

I certainly agree with the two-pronged test of custody and movement requiring Miranda. But what if I'm cuffed and I start getting questioned? The LEO considers me to be "detained", but I'd sure consider myself "under arrest" or at least not free to leave. That wouldn't trigger Miranda? Just curious.

Case law regarding Miranda has gone through some very wide swings during the past 30 years. Prior to 1984, a popular test to determine if a Miranda warning was required was to ask if the person "was free to leave." The understanding was that if the person was being detained, the custodial prong of Miranda was satisfied, and that if questioning were to occur, the warning must be given.

That went out the window in 1984 and has not been the case since. Please refer to the U.S. Supreme Court's decision in Berkemer v McCarty.

Since 1984, the more appropriate test is to ask if the person reasonably believes that they are going to jail (as opposed to merely be detained in the field). If the answer is "yes", then the warning is required.

 

[Spats McGee]

If an officer were to say ANY of those phrases to me, I would immediately ask if I was free to leave. If they said "No", I would ask if I am under arrest. If they say "No" again, I would ask again if I am free to leave - and turn away as if I WAS leaving. If they "laid hands" on me to stop me, I would stop, look at them, then their hands, then back at them and ask if I am being arrested. If not, I will again ask if I'm free to leave.
I do NOT wish to have a "consensual conversation" with any LEO unless I called them for a specific reason (not likely).

The whole business about looking at the officer, then his hands, then back at him . . . all of that assumes you get that chance. This is a very quick way to send your day from bad to worse. If the officer tells you you're not free to leave, twice, and you turn to leave, the handcuffs are coming out. If you're lucky, the officer will just tack on an extra charge or two. Fleeing, Obstructing Government Operations, and Refusal to Submit to Arrest all come to mind. If you're unlucky, the officer may think you're either fleeing or reaching for a weapon. That's fairly likely to get you some road rash.

My plan in terms of contact with police that I don't know has always been "be as forgettable as possible." That doesn't mean consent to every search an officer feels like doing, but I'm not going to have that argument on the side of the highway. If an officer wants to search something I feel inappropriate, I'll simply decline & preserve my legal rights for a courtroom challenge.

 

[shafter]

At what point does restraint become the multiple act of restraint and detention?????? If you are in cuffs you ain't going nowhere! Putting cuffs on an innocent man is a violation of his freedom.
Any LEOs out there care to comment?

They don't know he's innocent yet so they have to protect themselves while they establish what's happened. If everything is calm and there isn't any reason to believe the subject is going to be a threat then they won't handcuff.

 

[Deanimator]

"Come over here and answer a couple questions." You are being detained. You do not have the option of walking away as you are being told to stay put and answer questions. Failure to do so leads to escalation of the event.

If you're told you're not free to leave, or are prevented from leaving, you need to keep your mouth shut until you have legal representation PRESENT. And you need to EXPLICITLY state that you refuse to speak without benefit of counsel. Where legal, RECORDING that refusal is highly recommended.

Office is responsible for your safety as you are being detained.

And that's one of a vanishingly small number of situations in which police have a legal duty to protect you as an individual. Otherwise, you're strictly on your own.

They don't know he's innocent yet so they have to protect themselves while they establish what's happened. If everything is calm and there isn't any reason to believe the subject is going to be a threat then they won't shouldn't handcuff.

There, fixed that for you.

"Shouldn't" and "won't" are vastly different things.

I certainly agree with the two-pronged test of custody and movement requiring Miranda. But what if I'm cuffed and I start getting questioned? The LEO considers me to be "detained", but I'd sure consider myself "under arrest" or at least not free to leave. That wouldn't trigger Miranda? Just curious.

If you're not free to leave, invoke your right to remain silent without benefit of counsel and maintain it. You don't need Miranda just to keep your own mouth shut.

Leave the "banter" to "Law & Order".

 

[RickD427]

If you're not free to leave, invoke your right to remain silent without benefit of counsel and maintain it. You don't need Miranda just to keep your own mouth shut.

Leave the "banter" to "Law & Order".

It's certainly within your rights to do so, but it may not be wise. An officer can use your silence as evidence of guilt. That was the whole idea behind Salinas v Texas.

 

[Deanimator]

It's certainly within your rights to do so, but it may not be wise. An officer can use your silence as evidence of guilt. That was the whole idea behind Salinas v Texas.

No silence can EVER get you in more trouble than running your mouth without benefit of counsel.

I don't know that cop.

I don't know his motivations.

Not only is he allowed to lie to me, he's ENCOURAGED to.

Since I can't trust his word, why on earth would I just open myself up to a vast spectrum of potential criminal liability by speaking without benefit of counsel?

You said it yourself, "An OFFICER can use your silence as evidence of guilt." A COURT can't.

I'd much rather invoke my right to remain silent and trigger an actionable false arrest than to falsely incriminate MYSELF by answering questions without benefit of counsel, the REAL purposes of which I have no idea.

Perhaps the name "Richard Jewell" means nothing to you...

 

[ClickClickD'oh]

If they "laid hands" on me to stop me, I would stop, look at them, then their hands, then back at them and ask if I am being arrested.

That's a lot of things to be doing while he has his knee on your spine.

Ladies and Gentlemen of THR, JTHunters advice is very bad advice. If a police officer tells you that you are not free to leave, trying to quote pages out of the Sovereign Citizen playbook is not a good idea. That was a perfect example of how to get legally hurt by the police.

Instead of delving into the legalese explanation for why you will find yourself face down on the pavement with no one to blame but yourself and no recourse, I will just use an example much more familiar to most people that everyone understands: You get pulled over for speeding. Nothing serious, nothing criminal. Just 45 in a 40. While the officer is sitting in his car doing his officer thing, you are not under arrest as most people understand the term. Are you free to leave? Of course you aren't. But.. let's say you take JTHunters advice and just drive off. How many people think the officer is just going to shrug and be all "Huh, guess that one really knew the rules." Nope. It's the PIT for you. Maybe a K9 too.

 

[Deanimator]

Ladies and Gentlemen of THR, JTHunters advice is very bad advice. If a police officer tells you that you are not free to leave, trying to quote pages out of the Sovereign Citizen playbook is not a good idea. That was a perfect example of how to get legally hurt by the police.

1. Do not resist.
2. Consent to NOTHING.
3. Do not speak (other than when REQUIRED by law) without benefit of counsel.

It's an inherently adversarial relationship. Intelligently treat it as such.