Police Custody Laws

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 What Determines if a Suspect Is in Police Custody?

In short, an individual is considered to be in police custody or taken into police custody if, after the commission of a crime, a police officer arrests the person involved or is suspected to be involved in order to prevent further crime from occurring and proceed with their investigation. Thus, when a person is read their Miranda Rights and is brought to the police station, this is known as police custody.

In other words, police custody refers to the detention of a suspect in the custody of the police at the police station. Then, during the individual’s detention at the police station, the police may examine the subject during their detention.

It is important to note that there are limits on how long the police can detain a person, even if the detention was supported by reasonable suspicion. Once the police have conducted their initial investigation, they must then come to a decision as to whether or not the suspect has indeed been involved in the criminal activity they are being suspected of.

Once the police have made a decision, they should then either arrest the suspect if they think they have probable cause or release the person if they do not have probable cause.

It is also possible that during police detention and custody, a police officer will run a detainee’s name through the police database and discover if there is an outstanding warrant for the detainee’s arrest in connection with a different crime. In such a case, the officer would then be justified in arresting the detainee pursuant to the outstanding warrant to continue the criminal process on that charge.

In assessing whether or not the police can detain a person for a particular length of time, courts will apply the standard of reasonableness. In general, the police may not keep a person in police custody for more than 24 hours and must produce the individual before the magistrate.

Ultimately, every relevant circumstance surrounding the situation will be analyzed in a criminal court’s consideration of whether or not a person was in police custody. Factors often considered to determine whether or not a person was in police custody include:

  • Informed: The court will consider whether or not the individual was in police custody by analyzing when the police were questioning them if they were informed that the questioning was voluntary, that they were not under arrest, and that they were free to leave or not.
    • If the individual was informed of all the above, it is likely that a court will not consider them to have been in police custody but instead that they were voluntarily complying with police questioning;
  • Freedom of Movement: A criminal court will also consider whether the suspect was free to move about without remaining in the presence of law enforcement;
  • Consent: Courts will also consider which party initiated the contact, i.e., did the police or the suspect initiate the contact, and did the suspect freely and voluntarily provide information to the police; and
  • Accusatory: Courts will also consider the degree to which the suspect is confronted with evidence of their guilt.
    • In other words, if the police accuse the individual of being suspected of committing a crime and request them to accompany them to the police station, that will be evidence that they were in police custody.

How Do I Find Out if Someone Is in Police Custody?

If you believe that someone you know is in police custody and you are trying to determine where they are and if they are still in police custody, there are multiple ways in which you can attempt to locate them. All of the following are methods of determining if someone is in police custody:

  • Call The Local Police: If you believe that the police have arrested someone you know, your first step should be to contact the local police by utilizing the non-emergency number.
    • It is important to note that police may be hesitant to release information about an arrest until after the person has been arraigned in court, which means that 24 hours will have needed to pass before they release information about a person’s arrest;
  • Contact Local County Jails and Detention Facilities: You may still be able to find out if someone is in police custody by contacting local jails or detention centers in the county where you believe the person was arrested;
    • Generally, the county has a website in which an individual can search for inmates or people who are in police custody;
  • Call a Bail Bondsman: There are nationwide databases of arrest records that bail bondsmen are able to utilize to determine if an individual has been arrested and where exactly they are being held.
    • As such, contacting a bail bondsman may be an effective method of determining where an individual is in police custody, as well as enlisting the aid of a bondsman to bail them out.
  • Check Arrest Records: When an individual is arrested, generally after they are brought before a magistrate, their name and information will be entered into a police database that is accessible to the public.
    • You can freely search these online databases to determine whether or not the person you believe to be in police custody is, in fact, in police custody;
    • You will need the person’s identifying information to conduct such a search; and/or
  • Check Public Notices: In some cases, there will be a public notice of a new story related to the person being taken into police custody. As such, those notices are another method for determining if someone is in police custody.

Does Police Custody Mean I Am Arrested?

In short, no, police custody does not mean that you are arrested. Police have the ability to detain a person in their custody without actually arresting them. Once again, police custody is defined as the deprivation of a person’s freedom to leave. As such, a person is considered to have been taken into custody when they know they cannot depart from the presence of the police of their own free will.

Thus, during the detainment of a person, the detainee is able to inquire with the police to determine if they are free to go. The police then have an obligation to answer honestly and inform the detained individual if they are free to go or are being detained. If they are being detained, the police should also inform the person of the reasons for their detention.

If the police then refuse to answer, or if they keep the person in their custody without probable cause, this is considered to be a violation of the detained individual’s rights under the Fourth Amendment to the U.S. Constitution.

The 4th Amendment of the United States Constitution protects citizens from unreasonable searches and seizures. This protection extends to people and their property and applies in places where there is a reasonable expectation of privacy. The 4th Amendment limits when and how the police may conduct a search of a citizen’s home, papers, effects, or physical person.

If the police ask the detained person any questions, they should always comply by sharing their name and basic identifying information for a proper stop. Otherwise, the individual who is being stopped by the police has the right to tell the police that they claim their right to remain silent and wish to speak with an attorney.

An arrest occurs when the following steps are completed:

  • Physical Restraint: The person is detained through physical restraint, such as by the use of handcuffs;
  • Booking: The person is subject to formal booking processes at the police station;
  • Confinement: The person is placed in the back of a locked police car; and
  • Statement: The police tell a person that they are under arrest, such as by saying, “You are under arrest.”

As can be seen, an arrest involves detaining a person based on probable cause, while police custody refers to holding a person under the control of law enforcement. In other words, an arrest is a formal process that includes reading rights and potentially handcuffing, while custody can be informal or temporary.

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

Importance of Police Custody

It is important for it to be determined if an individual was in police custody because if a suspect was not informed of their Miranda rights while in police custody, then any statement obtained through police interrogations at that time may be inadmissible in court.

For instance, 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 that the suspect made will be inadmissible in court. As such, the prosecution would not be able to use the statement or confession to prove the defendant’s guilt due to the failure of the police to communicate the Miranda rights to the suspect.

How Long Can I Be Held in Police Custody?

As mentioned above, generally, police custody should not last more than 24 hours, and the person should be brought before a magistrate. Importantly, police custody rules will differ by state. However, in most states, a person must be arraigned within 24 to 48 hours from the time of their arrest.

At the person’s arraignment, a judge will read the criminal charges against the person, take their plea, and decide whether or not the person can be released on bail. If a judge refuses to grant a person bail, they will then be held in police custody until any one of the following occurs:

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

Should You Hire a Criminal Lawyer?

It is imperative that your 4th Amendment rights are protected. As such, if you have been accused of a crime or if you are being stopped and questioned by police, then it is in your best interests to contact an experienced criminal lawyer.

An experienced criminal defense attorney can help you determine whether the police custody was actually legal, as well as if anything you may have said while being in police custody may be used in a criminal case against you. Further, an attorney can inform you of your legal rights and raise any applicable legal defenses on your behalf. Finally, an attorney may represent you at any in-person criminal proceeding.


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