Cecily Zamora
The lawful detention of a person by law enforcement officers is a complex issue, with many misconceptions surrounding the rights of the individual and the powers of the police. A person is detained when they are not free to leave an encounter with the police, and the officer must have a reasonable suspicion that a crime has occurred and that the person is relevant to that crime. The duration of a detention must be reasonably related to the officer's investigation, and during this time, the suspect may be handcuffed, searched, and questioned. However, it is important to note that a person always has the right to remain silent and does not have to respond to police questioning, regardless of whether they are detained or not. In the United States, the Fourth Amendment protects individuals from unreasonable searches and seizures, and any detention or arrest must meet constitutional standards to be lawful.
| Characteristics | Values |
|---|---|
| Nature of detention | Held in police custody for a short period of time |
| Reason for detention | Reasonable suspicion of criminal activity |
| Rights of the detainee | Right to remain silent, right to a lawyer, right to be informed of the reason for detention, right to be heard by a judicial authority, right to defend oneself, right to obtain educational and cultural material |
| Duration of detention | Must be temporary and reasonably related to the officers' investigation |
| Search and seizure | Police can search the detainee and their property under certain circumstances |
| Difference between detention and arrest | Detention is voluntary and requires reasonable suspicion, while arrest is involuntary and requires probable cause |
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What You'll Learn
Police must meet constitutional standards
The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. Arrests and detentions are considered "seizures" under the law. Traditionally, courts held that any seizure required probable cause to believe that the person being seized had committed a crime. Probable cause is the same standard required to be met in the issuance of an arrest warrant. However, the courts have followed the common law in upholding the right of police officers to take a person into custody without a warrant if they have probable cause to believe that the person to be arrested has committed a felony or a misdemeanour in their presence.
The requirement for a police officer to lawfully detain someone is that they have a reasonable, articulable suspicion that a crime has occurred and that the person in question is relevant to that crime. This can be a very low bar. For example, if the police are called out for a fight at a party, it is reasonable for them to briefly detain everyone present as everyone is reasonably a suspect.
During an investigative detention, the suspect is not free to leave, may be handcuffed for officer safety, and may be frisked (briefly searched) for weapons. A Terry search may extend to a protective search of the passenger compartment of a car if an officer possesses a reasonable belief that the suspect is dangerous and may gain immediate control of weapons. An investigative detention may last anywhere from a few seconds to more than an hour, though there is no absolute time limit for a detention. However, it "must be temporary and last no longer than is necessary to effectuate the purpose of the stop". The duration of a detention must be reasonably related to the officers' investigation.
A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A detained person shall have the right to defend themselves or to be assisted by counsel as prescribed by law. A detained person and their counsel shall receive prompt and full communication of any order of detention, together with the reasons for it. A judicial or other authority shall be empowered to review the continuance of detention.
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Reasonable suspicion of criminal activity
A police officer may briefly detain a person, without a warrant, if the officer has reasonable suspicion that the person is involved in a crime. This is called an investigative detention. During an investigative detention, the suspect is not free to leave, may be handcuffed for officer safety, and may be frisked for weapons.
Reasonable suspicion is evaluated using the "reasonable person" or "reasonable officer" standard, in which said person in the same circumstances could reasonably suspect a person has been, is, or is about to be engaged in criminal activity. It depends upon the totality of the circumstances and can result from a combination of particular facts, even if each is individually innocuous.
U.S. courts have held that a stop based on reasonable suspicion may be appropriate in the following cases: when a person possesses unusual items (like a wire hanger, which would be useful in a crime, and is looking into car windows at 2 am), when a person matches the description of a suspect given by another officer, or when a person is seen fleeing from a home or business with a sounding alarm. However, reasonable suspicion does not apply merely because a person refuses to answer questions, declines to allow a voluntary search, or is of a particular race or ethnicity.
In the United States, the Fourth Amendment prohibits unreasonable searches and seizures. Arrests and detentions are considered "seizures" under the law. Traditionally, courts held that any seizure required probable cause to believe that the person being seized had committed a crime. However, courts have recognized that an officer's safety is paramount and have allowed for a "frisk" of the outermost garments if the officer reasonably suspects that the detainee is armed.
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Detention vs arrest
The police have the power to detain an individual, arrest them, or detain them followed by an arrest. Although these two legal concepts seem similar, they represent distinct stages of law enforcement authority. It is important for a defendant to understand their rights in a potential criminal situation.
Detention is a temporary stop by police to investigate a suspicion of criminal activity. It is based on reasonable suspicion and does not necessarily involve taking someone into custody. An investigative detention may last anywhere from a few seconds to over an hour, but it must be temporary and reasonably related to the officers' investigation. During a detention, the suspect is not free to leave, may be handcuffed for officer safety, and may be frisked for weapons. A detention may not result in criminal charges.
An arrest is a more formal action where someone is taken into custody due to probable cause, believing they have committed a crime. The suspect has the right to remain silent, the right to an attorney, and the right to be informed of their Miranda rights. An arrest typically involves physical restraint, often with the use of handcuffs. An arrest will result in criminal charges.
Whether an officer can detain or arrest someone depends entirely on the situation. In any case, the officer must meet constitutional standards before denying someone's liberty. If an officer has probable cause to believe that a person has committed a felony or misdemeanor in their presence, they may arrest the person without a warrant.
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Rights of the detained
The rights of a detained person vary depending on the country and the legal context of their detention. However, there are some universal rights that are generally accepted and protected by international law. Here are some key rights that a detained person typically has:
Right to Security and Protection from Arbitrary Detention
A detained person has the right to security and protection from arbitrary arrest or detention. This means that any arrest or detention must be carried out in accordance with the law and must not be arbitrary or unreasonable. This right is protected by international human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) and is applicable to all individuals within a country's territory and subject to its jurisdiction.
Right to be Informed and Remain Silent
During detention, a person has the right to be informed of the reason for their detention and the charges against them. They also have the right to remain silent and do not have to respond to police questioning. However, providing basic information such as name, address, and birthday may be necessary.
Right to Legal Representation
A detained person has the right to legal representation and should be able to consult with an attorney to understand their rights and legal options. This right exists regardless of whether the person believes their rights have been violated.
Right to Challenge Lawfulness of Detention
A detained individual has the right to challenge the lawfulness of their detention. This includes the right to petition for a review of their detention by a judicial or other competent authority to determine its legality and necessity. This review should be available at the outset of detention and at regular intervals in cases of prolonged detention.
Right to Humane Treatment and Protection from Torture
Detained persons have the right to be treated with humanity and respect for their inherent dignity. They must not be subjected to violence, torture, or inhumane treatment. This includes the right to be protected from methods of interrogation that impair their capacity for decision-making or judgement.
Right to Communication and Family Visits
A detained person has the right to communicate with the outside world and correspond with members of their family. They should be given adequate opportunities to maintain contact, subject to reasonable conditions and restrictions specified by law.
These rights are essential to ensure that individuals are treated fairly and justly during detention. It is important for detainees to be aware of their rights and to seek legal assistance if they believe their rights have been violated.
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Search and seizure
A person is considered seized when they are not free to leave an encounter with the police. This can be due to a show of force or authority, or any type of coercion, by the police officer. A seizure must be reasonably related to the officers' investigation and can last anywhere from a few seconds to over an hour.
During a seizure, a person may be handcuffed, frisked, and briefly searched for weapons. A Terry search, which is a search that falls under the Fourth Amendment, may extend to a protective search of the passenger compartment of a car if an officer has a reasonable belief that the suspect is dangerous and may gain immediate control of weapons.
In the case of US v. Segoviano (N.D. Ill. 2019), the court held that an officer may seize an object if, during a weapons frisk, they have probable cause to believe it is contraband. Similarly, in California v. Hodari D., the court decided that a Fourth Amendment seizure occurs when there is a show of authority by the officer and submission by the suspect.
It is important to note that a person's Fifth Amendment right to silence is always present, even before an arrest or detention. If a person believes they have been a victim of false arrest or excessive force, they should document the incident and seek legal counsel.
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Frequently asked questions
Being arrested means that a law enforcement officer has obtained probable cause that a crime was committed and the arrestee is "not free to leave" or is otherwise involuntarily moved by the officer. A legal detention only requires reasonable suspicion that a crime has occurred.
You have the right to remain silent and do not have to answer any police questions. You must provide your name, address, and birthday if requested. You also have the right to legal representation by a criminal defense attorney.
An investigative detention can last anywhere from a few seconds to over an hour. The duration of a detention must be reasonably related to the officers' investigation.
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