“Am I free to go?” Many people will tell you that simply asking this question is enough to tell you whether you are being detained or not. But what can be even more confusing is whether you are merely being detained or you are under arrest – and when being detained can turn into being arrested.
Generally speaking, you are detained when the police stop you – on foot or in your car – to question you about the potential of a crime having been committed. You are under arrest when they actually take you into custody. However, sometimes you can be cuffed while being detained, and sometimes what starts as detention turns into arrest before you know it.
For help with a criminal case, call the Salt Lake City criminal defense lawyers at Overson Law by calling (801) 758-2287 today.
Legal Standards to Be Arrested and Detained
If the police want to interact with you in an official capacity to ask you questions, investigate a crime, or otherwise take you away from going about your business, they need legal grounds to do so. If they did not meet this burden, then our Bountiful, UT criminal defense lawyers can step in and get evidence thrown out if it was obtained because of the illegal detention or arrest.
Police can talk to you as normal citizens, talk about the weather, and be friendly, but they cannot stop you from going about your day or throw you in a squad car without a reason.
Reasonable Suspicion to Detain Someone
The grounds needed to detain someone are called “reasonable suspicion.” The main case governing this is Terry v. Ohio, a 1968 U.S. Supreme Court case that held that the police need to have a “reasonable belief” that there is a crime at hand and that this person is involved before they can stop them. These stops are often called “Terry stops” after the case name. They might also be called “investigative detentions” since the stop should be limited merely to investigating a crime.
A stop is not a search, and officers cannot perform a search without “probable cause” – the same standard needed for an arrest. Instead, during a Terry stop or investigative detention, police are allowed to “frisk” or pat down for officer safety if they have reasonable suspicion that the subject might be armed or otherwise dangerous.
In defining what exactly reasonable suspicion is, courts usually require more than a “hunch.” The officer must be able to point to facts that made them think a crime was happening and that this person was involved. In Terry itself, that case dealt with a man pacing back and forth and reaching into his pocket like he was casing a building and carrying a gun.
Detaining Someone While Executing a Warrant
Police can also stop you and perform a search – or search your car or house – if they have a warrant and probable cause to do so. While executing a search warrant, police can detain you.
Probable Cause for an Arrest
An arrest is a “seizure” under the 4th Amendment, which requires a warrant and “probable cause” for an arrest to take place. There are many exceptions that allow warrantless arrests, such as when the officer sees a crime taking place. However, the requirement for probable cause must be met before an officer can arrest you.
Probable cause requires a greater showing of proof that a crime was committed and that this person was involved. In order to arrest someone, police do not need complete proof or proof beyond a reasonable doubt, but they do need to be able to make some elevated showing that, at the end of the day, the facts they had justified the arrest.
The Lines Between Voluntary Encounters, Stops, and Arrest
There are different types of police contacts with different rules and requirements for how they happen, but more important are the lines between these types of contacts and when detention might actually turn into an arrest.
Voluntary Encounters/Street Contact
As mentioned, the police can talk to you, and you can talk to the police as normal people without any grounds for that conversation. This is what’s known as a “voluntary encounter” or “street contact.” For example, you can go up to an officer and ask directions. If you are the victim of a crime, you might even flag down an officer and have them go into your home or follow you at your request.
The legal analysis with these issues is that all of these encounters are voluntary. You are a willing participant, and you are free at any point to leave the conversation or even ignore the officer and go about your day.
As long as the officer is not doing something to keep you there or stop you from leaving, the encounter is usually considered voluntary. To clarify your situation, you can ask the officer, “Am I free to go?” If they say yes, you are likely not being detained or arrested and may leave.
Detention
When the officer says you are not free to go, you can ask for clarification by saying, “Am I under arrest?” Usually, officers will admit that they are detaining you, but as long as they do not affirmatively say you are under arrest, you are probably only being detained. If they affirmatively say you are not free to go, that also probably means you are being detained.
Some states have different rules about identifying yourself, and you may be asked for ID at this stage. Police can also keep you there and ask you questions about where you are going to or coming from, but you do not have to answer them if you do not want to.
When police detain you to execute a search of your car or to execute a search warrant, they may be able to put you in cuffs and place you in their squad car or otherwise keep you nearby. The justification here is usually to protect officer safety and prevent interference. However, this interruption to your freedom must be brief and reasonable, or else it becomes a “de facto arrest.”
Arrest
If the officer says, “You are under arrest,” there is no question about whether you are being detained or arrested. However, sometimes a detention turns into a “de facto arrest.”
If the encounter goes on for more time than is reasonable, it might be an arrest, and the police will need to show they have probable cause for it to be legal.
Another important line to draw on arrests is whether you are “in custody” when you go down to the police station to talk to the police or whether that is voluntary. Always remember your right to remain silent and your right to an attorney during questioning, as you might not be considered “in custody” when the interview takes place in situations without coercion, such as at the officer’s desk or in a conference room with an open door.
Call Our Criminal Defense Lawyers Today
Call Overson Law at (801) 758-2287 for a free case evaluation with our West Jordan, UT criminal defense lawyers.
