Can police detain a suspect who isn't under arrest?

From an episode of Law & Order:

*Suspect in interrogation room: Am I under arrest?

Cop: No, but you can consider yourself our guest until your new lawyer shows up.*

The implication is that he isn’t free to leave, and indeed the cops leave him shut in to the interrogation room.

What’s the legality of this? Can NY police detain a suspect for questioning without actually arresting him?


A brief detention for the purposes of investigation is permissible. Typically you wouldn’t see this play out in an interrogation room. But the police can briefly detain you under the guidelines of a case called Terry v. Ohio.

Terry stands for the proposition that police can briefly hold you, on a standard of proof less than probable cause, if they have reasonable suspicion to believe you have committed or are about to commit a crime.

You need probable cause for an arrest. You only need reasonable suspicion to detain a person for a crime that you believe the suspect is committing, has committed, or was about to commit a crime.
The duration of the detention is not so black and white. It has to be reasonably justified. So like if you have a person detained on the side of the road for over an hour waiting for a drug dog, his lawyer is going to argue that he was detained for too long prior to the arrest or something like that.

If they’re questioning a person who asks to have a lawyer present, it seems reasonable to think the suspect would not be set free until the lawyer finally decides to show up.

Well, it happened to me on New Year’s Eve in 06. They thought I’d killed someone, and the only cause they had was a blurry print out of a security video with a vague resemblance–and that I was in the neighborhood of the murder and had the same backpack as the killer. When they took me downtown I thought I was being arrested, but they just wanted to compare me to the original video.

I was a little confused because another common scene in the show runs like this:

Defense lawyer (the scene is again in the interrogation room usually): Are you charging my client? Then we’re leaving.

(In which case the police either let them go or arrest the suspect).

Presumably the cops could say, “Your client is going nowhere. We’re not charging him but we’re not finished talking to him.” (Never seen that one played out but I guess it doesn’t lend itself as well to drama!)

The client is not required to talk to the police. IANAL, but if the cop says something like “your client is going nowhere” that sounds like an arrest to me.

We talked about the duration of Terry stop issue here, to some extent:

Also, there are a few terms that get thrown around and confused in these threads:

  1. Arrest–requires probable cause
  2. Detention–Requires reasonable suspicion (the cases cited in the thread above discuss when a detention becomes an arrest)
  3. Custody–Can be either of the above–whenever a reasonable person would believe he is not free to leave. Relevant to Miranda analysis–Miranda only applies to custodial interrogation.
  4. Duration during which a suspect may be held in custody without judicial determination of probable cause: Basic rule is 48 hours.

IANAL, but I thought that anytime you’re not free to leave police custody technically counts as being under arrest.

Nope. Example: Police receive a call that a white man wearing black clothing just burgled a house on Main Street. While they are responding, they see George who is a white male wearing black clothing on Main Street. They detain George for the purpose of discovering if he committed the burglary.

Now they ask George his name and what he’s doing out on Main Street in black clothing. He says, “I’m jogging.”

At this point, is George free to leave? No, of course not. If George IS the crook, then they don’t have to just let him walk away. But do they have probable cause to believe that he robbed the house? No, of course not. All they know is that he matches the description of their potential burglary. So he’s not under arrest, but he is detained while they conduct their initial investigation.

Now, let’s say that other police officers radio our detaining officers and say, “We got the suspect over here at 123 Main Street with burglary tools and possessions from the house.” Ok, now our officers say, “Sorry for the inconvenience. Enjoy your jog!”

Or let’s say that a witness runs up and says, “That’s the guy I saw climbing out of the bedroom.” Well, now we’re building up to probable cause.

Or let’s say that George consents to a search of his person, and the cops find NO burglary tools, NO possessions, absolutely nothing to tie George to the case other than his physical description. No witnesses come forward. Well then they take down his information, name, DOB, etc. so that they’ll have it later if other information turns up that might tie him to the crime. And then they let him go.

Clear as mud?

Anyways - the point is, with a detention, you are not free to leave while the cops take a reasonable amount of time to determine if a crime has been committed, is being committed, or has just been committed. But you are not under arrest - which requires that they have probable cause to believe you committed a crime.

No. That is incorrect. “Not free to leave” is the test for the umbrella concept of custody. If you are not free to leave and police interrogate you, they must comply with Miranda. As I pointed out in the post just before yours, the cases distinguish between an investigatory stop, which can include a temporary detention, and an arrest.

Id. n.5 (quoting People v. Rivera, 14 N. Y. 2d 441, 201 N. E. 2d 32, 252 N. Y. S. 2d 458 (1964), cert. denied, 379 U.S. 978 (1965))

The ability to detain without reason, arrest or charge can be used for purely harrassment purposes. I was detained and placed in jail overnight just for arguing with an officer once. I wasn’t a suspect, I wasn’t violent, I just wanted to know what he was doing, but he didn’t like my attitude. The next day in front of a judge, it was revealed that no charges were filed and I was free to go. It was then I realized the cop merely exercised his power to lock me up without any reason whatsoever (I’m sure he could have made one up if pressed) just to be nasty.

Another Law and Order cliche that I always wonder about:

Usually around 15 minutes in, they get a suspect that they’re really interested in and tell him/her “We need to finish this discussion downtown”.

The suspect usually says something like “But I have an important client coming in 10 minutes!” then one of the detective says something like, “Well, maybe he’ll still be here in 25 years when you get out” or some smart ass comment. Or if the suspect asks to call a lawyer he is told to have him “meet us at the precient”.

I don’t understand this whole concept. If I was the suspect I would (if I could) tell the detectives to piss off, that we could have a conversation right here at my place of work/home/public street instead of going to the interrogation room…

It’s unlikely they have a unserved warrant in their pocket, true. But too many dudes think they can talk their way out.

A close friend is a Superior Court Judge. His advice to me was “Once you are read your rights, you have only two things to say: I want to speak to my/an attorney, and *Am I free to go? *Otherwise, STFU”. I stand by his advice.

I wouldn’t recommend telling them to piss off so much. But that’s the general idea. This is the same thing we keep coming back to with respect to detentions:

  1. If you aren’t free to leave, you are in custody. *Miranda * governs custodial interrogation so they need to comply with *Miranda * or risk tainting the interrogation and possibly evidence that they obtain based on anything you say.

  2. *Miranda * requires them to read you your rights before they question you, allow you to cut off questioning at any time, and not question you without your attorney present if you request an attorney.

  3. Transporting the suspect to another location for questioning or other purposes is usually found to be an arrest. ; ; but see, (exploring situations where transportation is justified).

So if you say, I don’t want to go, and they take you anyway:

  1. You don’t have to answer any questions. You never do; I’m just saying.
  2. You probably don’t have to go unless they have probable cause to make an arrest–then again, the cops have weapons.
  3. If they do it anyway, and you spill your guts, there is a good chance that some of what you tell them, and evidence that they find based on what you say will be inadmissible at trial.

I’ve always been curious about the Miranda rule - if a suspect is not Mirandized, is the evidence of the interview inadmissible in all circumstances, or is there a residual discretion to let it in?

In my jurisdiction, failure to warn is a bad thing, and puts the interview at risk, but the trial judge retains a fairly wide discretion to let it in anyway depending on the circumstances. The test is whether it is “fair” to admit it. For example, a hardened crim who knows his rights and has been warned countless times will struggle to have his account excluded if, say, in the interview itself he shows he is able to respond in his own interests as he sees them and the police made merely a technical and not deliberate oversight in the warning.

How do things work in the US?

If the suspect is “in custody” and “interrogated” (each of these terms has undergone some interpretation by the courts) the police must give him a specific warning. This is pretty typical:

Failure to give the warning means any statements the suspect makes are inadmissible, subject to some very limited exceptions, e.g., (impeachment ok). Physical fruits of a Miranda violation (they don’t give the warning, the suspect tells them where the murder weapon is, they go and find it) are admissible under federal constitutional law although some states exclude this evidence. There is also a line of cases on whether a subsequent interrogation in which the police comply with Miranda is tainted by a previous Miranda violation.

Miranda also creates what we call second-tier rights. For example, if the suspect is given Miranda warnings and requests a lawyer, the police cannot generally reinitiate questioning without providing one. Similarly, if the suspect stops the interrogation, the police can’t just wait a bit and start again.

The equivalent caution in England (which has, according to Wikipedia , been around in one form or another since 1912) has been watered down now.

You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.

In essence, it allows “adverse inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation.”

In other words, only the quick-thinking get the benefit of the right. :slight_smile: