JamesB
Regular Member
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As someone training to be a police officer:
The laws posted above are, as often is seen with the law, not terribly clear. In detaining someone, they are actually not yet under arrest. You can detain someone by controlling their escape routes to the point that a reasonable person would not believe they can simply walk away from the contact. This does NOT mean that you are under arrest, however. You are not under arrest until you are actually notified that you are under arrest. Even though the officer may have you sit on the ground and not allow you to get up or move around.
I disagree with "a detention is an arrest". As a police officer, I can detain you without ever placing you under arrest. When the legal definition of detention mentions the term arrest, it is not in the "under arrest" meaning. It is under the "arrest the movement of an individual" meaning. I can go from contacting an individual to detaining them for whatever reason to letting them go.
Rubbish. All a cop would have to do is refrain from saying "you're under arrest." Under your standard, I can be cuffed, transported, presented to a magistrate, booked, and put in a cell; but if the cop doesn't say "arrest", then I am not arrested. Phffft.
Actually, this is very much incorrect. If you aren't placed under arrest (read as: informed of your rights and the fact that you are being placed under arrest) and I "arrest" you, that "arrest" goes right out the window because it was not properly executed. So no, you couldn't be.
And remember, cops have to follow the law, too.
Perhaps Colorado has a differing definition of "Arrest" O.C.G.A. 17-4-1 (2010) 17-4-1. Actions constituting an arrest An actual touching of a person with a hand is not essential to constitute a valid arrest. If the person voluntarily submits to being considered under arrest or yields on condition of being allowed his freedom of locomotion, under the discretion of the officer, the arrest is complete. ___________________________________________________________________________________ No words required No touching required No Miranda rights required So either the definition you gave is incorrect; or each state has it's own rules, or there haven't been any valid arrests in Georgia since Colonial times. ___________________________________________________________________________________ Recently, (well mid-summer last year) I was arrested for trespassing because I was walking for exercise in a public park, on the walking pathway, while the park was open. No "You're under arrest" statements, No Miranda warnings, just "turn around" as an officer withdrew his handcuffs. _______________________________________________ Weird... the board appears to be having a problem separating paragraphs.....Actually, this is very much incorrect. If you aren't placed under arrest (read as: informed of your rights and the fact that you are being placed under arrest) and I "arrest" you, that "arrest" goes right out the window because it was not properly executed. So no, you couldn't be.
I think folks tend to get "arrested" and "detained" confused for being one in the same. In Layman's, "to be placed under arrests" simply means being held for suspicion of a crime and read your Miranda Rights. To be "detained" is simply that. The officer(s) is/are preventing any means of viable escape while they conduct their investigation of whatever suspected crime or incident (placing someone in cuffs is one of the most effective ways, btw, even IF they are not under arrest. And it's totally within the law to do it).
Source: I used to be a military police officer. While military law enforcement differs slightly than civilian, the rules pertaining to arrest/detention are pretty much universal.
Maybe instead of running this guy through the mud, becoming educated on your municipality's definition of the terms would make it clearer. Not every law is the same everywhere. And remember, cops have to follow the law, too.
If one accepts the premise that this site accurately reflects current Colorado law then, Authority Of Peace Officer To Make An Arrest — C.R.S. 16-3 would seem to disagree that a detention is not an "arrest". Detention held a full-scale arrest. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).
The officers can call it whatever the hell they want, but by definition and court rulings, a detention is an arrest.
DETAIN: To retain as the possession of personalty. First Nat. Bank v. Yocom, 96 Or. 438, 189 P. 220, 221. To arrest, to check, to delay, to hinder, to hold, or keep in custody, to retard, to re strain from proceeding, to stay, to stop. People v. Smith, 17 Cal.App.2d 468, 62 P.2d 436, 438. (Blacks Law 4th Ed, Pg 535)
ARREST: To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand. Ex parte Sherwood, 29 Tex.App. 334, 15 S.W. 812. Physical seizure of person by arresting officer or submission to officer's authority and control is necessary to constitute an "arrest." Thompson v. Boston Pub. Co., 285 Mass. 344, 189 N.E. 210, 213. It is a restraints however slight, on another's liberty to come and go. Turney v. Rhodes, 42 Ga.App. 104, 155 S.E. 112. It is the taking, seizing or detaining the person of another, touching or putting hands upon him in the execution of process, or any act indicating an intention to arrest. U. S. v. Benner, Bald. 234, 239, Fed.Cas.No.14,568; State v. District Court of Eighth Judicial Dist. in and for Cascade County, 70 Mont. 378, 225 P. 1000, 1001; Hoppes v. State, 105 P.2d 433, 439, 70 Okl.Cr. 179.(Blacks Law 4th Ed, Pg 140)
Berkemer v. McCarty, 468 U.S. 420 (1984)
For purposes of Fourth Amendment analysis there are basically three categories of police “contacts” with individuals: “consensual encounters,” “detentions” and arrests. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 [195 Cal. Rptr. 671, 670 P.2d 325].) Consensual encounters result in no restraint of an individuals liberty whatsoever, hence, an officer is not required to have an objective justification to stop a citizen.
“Detentions are seizures...” People v. Verin (1990) 220 Cal. App.3d 551, 269 Cal,Rptr. 573 [No. A046244 Court of Appeals of California, First Appellate District, Division Four, May 17, 1990]
“It is true a temporary detention constitutes a seizure of the person subject to the constraints of the Fourth Amendment. (Terry v. Ohio, 392 U.S. 1, 16 [20 L. Ed. 2D 889, 902-903, 88 S.Ct 1868].)
People v. Bremmer (1973), 30 Cal. App. 3D 1058 [Crim. No21752. Court of Appeals of California, Second Appellate District, Division Two. March 7, 1973.] The Fourth Amendment applies to all seizures of the person including those consuming no more than a minute (United States v. Brignoni-ponce, supra, 422 U.S. At pp. 879-880 [45 L. Ed.2d at pp. 615-616].)
Reasonable suspicion is formed by “specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.” Usa v Lopez Soto, 205 F.3d 1101 (9th Cir. 2000)
To detain a suspect, a police officer must have reasonable suspicion, or “specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is "in criminal activity” USA v. Michael R, 90 F3d 340, (9th Cir. 1996)
...any curtailment of a person's liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity See Brown v. Texas, 443 U.S. 47, 51 (1979) Delaware v. Prouse, 440 U.S 648, 661 (1979); United States v Brignoni-Ponce, supra ; Adams v. Williams, 407 U.S. 143, 146-149 (1972); Terry v. Ohio, supra; Reid v. Georgia, 448 U.S. 438 (1980)
“If the individual is stopped or detained because the officer suspects he may be personally involved in some criminal activity, his Fourth Amendment rights are implicated and he is entitled to the safeguards of the rules set forth above.” (Id. At p. 895.)[4] The rules to which the court refers are the following. “[1]n order to justify and investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2)the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience (People v. Superior Court (Keifer), supra. 3 Cal.3d at p. 872), to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. (Terry v. Ohio, supra, 392 U.S. At p. 22...)” (Id, at p. 893.)
People v. Schoennauer (1980) 103 Cal. App. 3D 398 “While a detention of a citizen by a Police Officer based on [9 Cal. 3D 798] a 'mere hunch' is unlawful, if there is a rational suspicion that some activity out of the ordinary is taking place, and some suggestion that the activity is related to crime, a detention is permissible.
People v. Renteria, 2 Cal. App.4th 440 [No. B055019. Second Dist, Div, Six Jan 7, 1992] ...a reasonable, articulable suspicion of criminal activity is needed to justify a detention