Custody occurs when someone is arrested, or under other circumstances where the suspect submits to the authority of a police officer. In making the determination of whether a suspect is in custody, a court looks at the circumstances of the custody, not the opinions of either the person being questioned or the officers.
Ultimately, every relevant circumstance surrounding the situation will play a role in determining custody. Common factors include:
- Informed: Whether the suspect is informed that the questioning is voluntary, that he is not under arrest, and that he is free to leave, or to the contrary.
- Freedom of Movement: Whether the suspect is free to move about without remaining in the presence of law enforcement.
- Consent: Courts will look to who initiated the contact, and if the suspect willfully provided information.
- Accusatory: The degree to which the suspect is confronted with evidence of his guilt.
- Oppressive: Whether the police dominated the atmosphere of the questioning.
Police can have you in their custody without actually arresting you. Police custody is generally defined as anytime the police deprive you of your freedom of action or where you know you cannot get up and leave the presence of the police by your free will. An arrest actually occurs when:
- You are detained by physical restraint
- You are booked at the police station
- You are placed in handcuffs, or
- You are placed in the back of a locked police car
If the police have you in their custody or they have arrested you, they must inform you of your Miranda rights and give you the opportunity to exercise those rights.
If a suspect is not informed of his Miranda rights while in police custody, any evidence obtained through police interrogations may be inadmissible in court. For example, if a suspect is in police custody, and an interrogation occurs without the suspect being read Miranda rights, and the defendant confesses to the crime, the confession may be inadmissible in court against the defendant because of the failure of the police to read the suspect his Miranda rights.
The duration that you may be held in police custody depends on the reason or potential crime that you are being detained for.
If you are detained in police custody for questioning about a serious offense, such as murder or, robbery, without any charged offense, the police can hold you for up to 8 hours, but can only question you for up to 4 hours or it would be deemed excessive interrogations. The police must also release you from custody if they have no sufficient evidence to actually charge you.
If you are charged with a crime after you are in police custody, the police may detain you for a long period of time or may release you on bail. The judge determines whether or not you can be released on bail, and how much bail with cost. If the court refuses to grant you bail, you will be held in police custody until any of the following occurs:
- You are released on bail
- Charges against you are dropped due to lack of evidence by the district attorney office
- You are found not guilty
- You are sentenced to a penalty that does not include imprisonment or jail