Under the Fourth Amendment to the U.S. Constitution, the police cannot stop a person on the street and detain them for no reason. And, even if they detain a person on the basis of reasonable suspicion, they cannot detain them longer than is necessary for conducting a brief investigation.

Law enforcement has the right to arrest a person when they have a warrant that was issued by a court on the basis of probable cause or in cases in which an exception to the warrant requirement applies to the facts.

For example, if the police stop a person for a moving violation and see evidence of a crime in plain view in the person’s car, they do not need a warrant to arrest the person. Of course, they can search the car, seize the evidence and arrest the person on the spot on the basis of the evidence that is in plain view.

Police can also detain, but not arrest, someone in order to determine if the person is involved in the commission of a crime. If the police have a reasonable suspicion that someone is committing a crime or is about to commit a crime, they can make a brief stop for the purposes of investigation. One common example of detention is when officers conduct sobriety checkpoints. When a driver arrives at a sobriety checkpoint, the police may stop the person’s vehicle temporarily to determine if the person behind the wheel is under the influence of alcohol or drugs.

Police can also detain a pedestrian. For example, an officer might receive a call to the effect that a home in their precinct was just burglarized and then report to the scene. The officer would be able to stop someone dressed in dark clothes walking down the sidewalk, carrying a huge sack over their shoulder and heading away from the scene. In this situation, the police have a reasonable suspicion that the person might have been involved in the burglary.

If the police search the sack and find the person’s dirty laundry, and the person says they were headed to the laundromat down the street, the police would have to let the person go on their way to the laundromat to do their laundry. On the other hand, if they were to find the his-and-hers Rolex watches and sterling silverware reported missing from the burglarized home, they then have probable cause to arrest the person. In either case, the detention was justified.

There are limits on how long the police can detain a person, even if the detention was supported by a reasonable suspicion. Once the police have conducted their investigation, they must come to a decision as to whether or not the suspect has indeed been involved in criminal activity. Once they have made a decision, they should either arrest the suspect if they think they have probable cause or release the person if they do not have probable cause.

Now, it is possible that during a detention, a police officer will run a detainee’s name through the police database and discover that there is an outstanding warrant for the detainee’s arrest in connection with a different crime. In this case, the officer would be justified in arresting the detainee pursuant to the outstanding warrant.

In assessing whether the police could detain a person for a particular length of time, courts apply the standard of reasonableness. Courts consider each case on its own merits.

Ultimately, every relevant circumstance surrounding the situation will play in a court’s consideration of whether a person was in custody. Factors often considered include:

  • Informed: Whether, if the suspect is questioned by the police, they are informed that the questioning is voluntary, that they are not under arrest, and that they are free to leave, or not, as the case may be;
  • Freedom of Movement: Whether the suspect is free to move about without remaining in the presence of law enforcement;
  • Consent: Courts consider which party initiated the contact, whether the police or the suspect and whether the suspect freely and voluntarily provided information;
  • Accusatory: The degree to which the suspect is confronted with evidence of his guilt.

A court may consider other factors as well.

Does Police Custody Mean I Am Arrested?

As stated above, police can detain a person in their custody without actually arresting them. Police custody is defined as the deprivation of a person’s freedom to leave. A person has been taken into custody when they know they cannot depart from the presence of the police of their own free will.

If a person is stopped by the police, they have the right to ask the police why they have been stopped. The person can also ask them if they are free to go. The police have an obligation to answer honestly, and they should tell a person why they are being detained.

If the police refuse to answer, or they keep a person in their custody without probable cause, this is a violation of their rights under the Fourth Amendment to the U.S. Constitution.

But the strategy for a person to use is to remain polite and respectful and deal with the issue of the legality of the police conduct later in a court of law. If the police ask the person any questions, they should share their name and basic identifying information. Otherwise, they have the right to tell the police that they claim their right to remain silent and wish to speak with an attorney.

If the police try to pressure a person to answer, the person has the right to claim their right to remain silent and speak to an attorney. A person also has the right to ask why the police have stopped them and whether they believe the person has been involved in a crime.

An arrest actually occurs when the following steps are completed:

  • Physical Restraint: A person is detained through physical restraint, e.g. handcuffs;
  • Booking: A person is subject to booking at the police station;
  • Confinement: A person is placed in the back of a locked police car;
  • Statement: The police tell a person that they are under arrest, as they usually do.

When arresting a person, a police officer will often say, “You are under arrest,” or, “I am taking you into custody.”

If the police have a person in their custody or if they have arrested them, they must inform them of their Miranda rights before they start questioning them, and give them the opportunity to exercise those rights.

Importance of Police Custody

If a suspect is not informed of their Miranda rights while in police custody, any statement obtained through police interrogations may be inadmissible in court. For example, if a suspect is in police custody and an interrogation occurs before the police have communicated the Miranda rights to the suspect, any statement or confession the suspect makes may be inadmissible in court. The prosecution would not be able to use the statement or confession to prove the defendant’s guilt because of the failure of the police to communicate the Miranda rights to the suspect.

How Long Can I Be Held in Police Custody?

The duration that you may be held in police custody depends on whether the person has simply been detained for investigation or arrested on the basis of probable cause to believe they have committed a crime.

Without Charge
Again, If a police officer has a reasonable suspicion to the effect that a person may be involved in criminal activity, they can detain the person temporarily. The detention is for the sole purpose of conducting a brief investigation. The goal is to determine if the suspect is involved in criminal activity.

The suspect can be handcuffed during this detention and briefly search for weapons, or frisked. Both steps are for the safety of the officer. This procedure is referred to as a “Terry stop,” because it is based on the decision of the U.S. Supreme Court in the case of Terry v. Ohio. This is the case in which the Court first approved of investigative detentions.

An investigative detention may last from a few minutes to an hour. There is no firm time limit for a detention. But it can last only as long as is necessary for the police to complete the investigation that is the purpose for the stop. A detention that lasted for more than an hour would be rare.

With Charge:
How long a person can be held after arrest and until there is an arraignment varies according to the law of the state in which they have been arrested. In most states, a person must be arraigned within 24 to 48 hours from the time of their arrest.

At the arraignment, a judge reads the charges against the person, takes their plea, decides whether the person can be released on bail, and how much bail the person must post to win their release. If a judge refuses to grant them bail, they will be held in police custody until any one of the following occurs:

  • A court determines that the person is entitled to be released on bail and the person posts a bail bond;
  • Charges against the person are dropped by the prosecution due to lack of evidence;
  • The person has a trial to determine their guilt or innocence;
  • They are found innocent and immediately released;
  • They are found guilty, sentenced to a penalty that does not include imprisonment or jail, and are then released.

What Can You Do If You Are Accused of a Crime?

If you are accused of a crime, you should consult a criminal defense lawyer immediately to learn more about your rights, how you can defend yourself and what to expect from the legal system.