Am I being detained? Am I free to go?

If you are interested in knowing your rights, you may have run across one of the numerous online videos of people being questioned by the cops.

Inevitably, the person asks the officer, “Am I being detained?” Sometimes, the officer will try and dodge the question, but sometimes the officer will say a quick “no.”

At that point, the person asks the question, “Am I free to go?” And the encounter drags on as they try to badger the officer for an answer to that question, even after they have already been told that they are not being detained.

Would not a “no” answer to that first question be a sufficient permission to leave?

Or is there some middle ground wherein you are not being detained by police, yet at the same time, not free to leave?

I am envisioning a scene similar to this:

Officer approaches me and asks “you mind showing me your ID?”
I ask, “Are you detaining me?”
Officer answers, “no.”
So I say, “Then I’d rather not. Have a nice day officer!” and walk away.

What would be wrong, from a legal standpoint, with that situation? Furthermore, if the officer answers anything but “yes,” (trying to dodge the question, for example), shouldn’t the assumption be that I am free to go?

Assuming the USA, as every country is different, you could walk away. However the officer could chose to arrest or detain you on some bogus infraction such as littering or maybe your car does have a tail light out. Certainly walking away would bring matters to a head quicker.

There are no magic words. Asking if you are being “detained” or asking if you’re “free to go” will get you the information you need. Basically, those advocating asking both questions are just making sure the situation is clear to all involved. “So, officer, you won’t object if I bid you farewell?” is also acceptable.

In general, when dealing with people with badges and guns (and tazers) if they tell you you’re not free to leave, you probable should not just try to walk away. If they say you’re not free to leave, that means you’re being detained, regardless of what else they say. The detention may be illegal, but that’s going to be for judges and lawyers to decide, later.

Now, if you’re trying make case law, then go for it.

The question should be “Am I under arrest” rather than “am I being detained”? One can be detained for a reasonable amount of time without being under arrest.

The point is to ascertain if you are being compelled to remain. Asking if you are under arrest is not sufficient to make that determination for just the reason you mention. You could be detained without being under arrest, in which case you would not be free to leave.

If the point is to find out if you can walk away, that’s not helpful.

Then the question should just be “am I free to leave”. If the answer is no, then you should ask weather you are under arrest or just being detained as those are not the same things.

If you are under arrest, you are being detained. The former is a subset of the latter.

Am I correct in thinking that I never have to produce identifying documents? I have to give identifying information, like name, address, and birth date. But I do not have to produce any ID or driver’s licence if I don’t feel like it (and I am not driving a car).

IOW I am walking down the street, and Officer Friendly comes up and stops me (perfectly legal, on both sides, at this point).

Officer Friendly: Can I see some ID?

Me: My name is Shodan, I live at 123 Main Street, and I was born January 28, 1956.

OF: I would like to see some ID.

Me: No.

Can I do that, legally?

Regards,
Shodan

Of course you can. After you give him your name you should immediately asked him why you are being stopped and explain that you do not have any ID on you (even if you do). If he has no reason to detain you should wish him a good day and go on; no need to get snotty about it, bad manners will piss off an police officer and make him suspicious of you more than just about anything else other than actually committing a crime in front of him.

Depends on the law of your state. Stop and identify statutes generally only require the verbal identification you provided in the hypothetical. In Kolender v. Lawson, SCOTUS invalidated a statute which required the suspect to provide “credible and reliable” identification, which was read to require the suspect to present ID. It was invalidated on vagueness grounds, though, not because the ID requirement was impermissible. As an unsupported legal conclusion, I expect that a suspect could not be required to present ID absent an arrest (and thus probable cause).

I thought the “papers please” law in AZ required some kind of proof of something. But only if you don’t look American.

But, generally, you don’t have to carry ID, so I don’t see how you can be required to show it. I will tell you that the Coast Guard will ask for the ID of everyone on board if they stop a vessel. What happens if you say “no” is not something I’ve ever wanted to test. Those guys have no sense of humor (I asked if I could tour their boat, for example).

I agree that these are two ways of asking the same question.

But it seems to me that the psychology of it is to get the cop to admit that you aren’t detained, and then confirming with them that, since you aren’t being detained you’re free to go.

If you just ask “Am I free to go?”, then he can respond with “Wait, I want to ask you some questions.” But that’s changing the subject without answering the question. By asking if you’re detained first, you’re clarifying that he’s not detaining you, he’s asking you to voluntarily chat with him, which cops are free to do just like everyone else. And if he’s not detaining you, then you are free to go. But asking him again makes it clear to both of you what is happening.

I mean, suppose he says you’re not being detained, and he says no, and then you ask if you’re free to go, and then he decides that he needs to detain you after all when you don’t consent to a voluntary chat?

If they don’t give a yes or a no answer, and you ask several times, “am I free to go?”
At what point can you make the determination for yourself?

Something akin to saying, “You have not told me that you are detaining me, so I’m leaving unless you tell me I’m being detained.”

I am talking about the USA here, so shouldn’t the presumption be that I am always free to leave unless told otherwise?

When asking questions like this, PLEASE tell us your State (if in the US) or Country (if outside the US). Especially if your forum location is set to “Milky Way Galaxy”.

But what you said is generally true inside the US. Take a look at the Wiki article on Stop and Identify laws.

And the police officer may decide to take you along to the station until you can be identified. Depends upon how your interaction with the officer is going. What you are a suspect of. If it goes badly they can detain you to determine your identity or for other reasons, for a certain length of time. All states have different rules.

If you are operating a motor vehicle and do not have ID, that is “failure to carry and present” and you may be cited or detained.

The authority is all in the hands of the police during an initial stop and trying to street lawyer yourself out of the situation rarely turns out well.

Also see Terry Stop.

To my knowledge, the only civilians required to carry ID with them in public in the US are registered aliens, who are suppose to have their green card with them at all times. I’m not sure under what circumstances they could be legally compelled to present it.

If you are operating a motor vehicle, you are required to have a valid driver’s license with you and present it to a police officer upon request. If you are a passenger in a motor vehicle (or a pedestrian on the sidewalk), you do not.

That said, you must be willing to pay a certain price in pain-in-the-ass if you choose to stand up for that right. Witness the case of Michael Righi, who was arrested for refusing to show his driver’s license to an officer. He made a conscious choice to stand up for his rights, and was willing to bear a certain cost for doing so, but finally dropped the issue when he saw that his family was also bearing a burden.

Well, I’m well aware of the need to present a drivers’ license when being stopped in your vehicle. As far as I know, the flashing blue lights in the rear-view mirror would be answering the “Am I being detained?” question with a resounding “yes!”

There are more obligations placed upon us when we drive, but I wasn’t specifically talking about driving in this case, just walking down the street minding my own business.

An arrest is a form of detention so asking if you are being detained is inclusive of that. In other words, the point isn’t to eek out under what nuance you are being held, it is simply to determine first if you are being held. If the answer is no, you double down and verify so that there is no misunderstanding. If the answer is yes, and you are being held, the response is the same regarding simple detention or arrest so that nuance isn’t necessary. The response is “I will not answer any questions. I want to speak to a lawyer.” Or, you can hand them this business card.