Constitutional rights violations and crimes committed when spotted by the gang unit

Great Debates
41

Not necessarily. I can cuff occupants of a dwelling while executing a search warrant and it doesn’t mean they are under arrest.

I have also cuffed people during Terry Stops for mine and their safety and, at the time, they weren’t yet under arrest. Remember, just because one is being detained does not automatically mean they are under arrest.

Quote:
An arrest actually occurs when:

You are detained by physical restraint

Not always. I have used escort and come along holds on people during Terry Stops. They weren’t under arrest.

You are placed in handcuffs

As I explained above, not always.
You are placed in the back of a locked police car

False. Do this all the time at domestic calls. Seperate the parties, put one in the back of the squad, question the other, try to find out who did what and so on. Person in the squad is not [yet] under arrest.

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.

Absolutely incorrect. Miranda only has to be given when you are under arrest AND you are being questioned. About 95% of my arrests do not involve Miranda. Don’t let Law and Order fool you. The police are not reading Miranda warnings while they are fighting with suspects, huffing and puffing trying to get the words out. That’s TV, doesn’t work that way. I usually don’t have to question people because I already know what they did, which is why they are already under arrest.

BTW, I’m a cop, not an attorney. None of this is legal advice.

42

Been a week since the OP has been around. Guess they didn’t like us punching all those holes in his story. :wink:

43

In any of those cases, would I be free to go?

If I am not free to go, then how am I not under arrest?

44

Perhaps he was referring to this?

“At urging of Minneapolis police, Hennepin EMS workers subdued dozens with a powerful sedative”

http://www.startribune.com/at-urging-of-police-hennepin-emts-subdued-dozens-with-powerful-sedative/485607381/

45

Because it is legally possible to restrain someone without formally arresting them, which I believe has already been explained in this thread.

46

Here is a reference case to my post 38, Bailey expands on Summers about detaining those on the premises during execution of a warrant, even though the police have no reason to believe they have committed any crime.

47

This.

In some situations one can be detained, even seized by the police without actually being under arrest. This has been explained and cases provided.
Terry V Ohio, Brendlin V California, Maryland V Wilson, Baily V U.s., Summers, etc…

48

WADR this is not an example of routinely sedating every drunk on his way to detox if he cuts up rough.

Regards,
Shodan

49

Well, in his initial post, he doesn’t actually say that the person was drunk; just that they were put in a detox van and sedated.

Actually, in the article I linked it states,

Jaywalking is the one crime that was actually mentioned in the OP.

50

Sure, but the OP also mentioned that public intoxication was not against the law in Colorado, which kind of implies that in his scenario, the jaywalking charge was more or less a pretext. Plus, as a general rule, police don’t send people to detox for jaywalking. Usually it’s because they are drunk and/or drugged.

Also, from your link -

And

So again, not quite the same thing as having the paramedics doping up anyone the police say.

Which is not to say the Mpls police necessarily acted wisely, nor that there might be some civil rights or other violations implied in the OP.

Regards,
Shodan

51

The assertion has been repeated, but I have not seen a satisfactory explanation of “You are not under arrest, but you are begin physically detained.”

Right, that reads as a legal fiction that allows police to prevent someone from leaving while they find something to arrest them for.

What is your legal classification in this limbo? You are not under arrest, as they need to actually have suspicion that you committed a crime in order to arrest you, but you are not free to go.

I get that cops do it, and I get that courts allow it, I’m just not sure what the actual logical o(or moral for that matter) justification of restricting someone’s freedom of movement without placing them under arrest is.

Yeah, and I disagree with the notion that you should be held without being under arrest for leaving an apartment complex that the police are looking to to search.

I also don’t think that anyone not named on a search warrant should be held. If people want to stay int he residence while it is searched, then they may be detained. If they want to leave, they should be allowed to.

Of course, I also think that you should be allowed to watch and even record their search, if you like, cops are not above stealing valuables.

I agree with your cite, BTW

I do think that we have gotten away from that in our legal system, that the rights of the accused, and even the not yet accused, take a back seat to the convenience of law enforcement.

52

Dismissed with prejudice.

53

What is it that you need to have explained? You are being detained, under a Terry stop. You are not under arrest, but you are not free to go.

You are being detained under a Terry stop. You are not under arrest, but you are not free to go. You do not have to answer any questions beyond identifying yourself. You do not have the right to an attorney. The detention must be brief. “Brief” is not clearly defined, but 20-30 minutes is probably nearing the limits.

Because often the police need to be able to detain you in order to investigate. This is called “discretion”. If the police abuse that discretion, they should be held accountable. If they don’t, then it is functioning as intended, to assist the police in investigating crime and maintaining public order.

We, as a society, have decided that police need a certain amount of discretion in order to effectively perform their duties. Terry stops are inconvenient and unpleasant to those being detained. The rest of us think it’s worth it.

If you disagree, contact your elected representatives and/or begin the process of convincing a majority of your fellow citizens to have the laws changed.

Regards,
Shodan

54

Why they can’t just say that you are under arrest.

and the reason for that is because they actually have to have probable cause to put you under arrest. But, they can detain you, without probable cause, while they look for probable cause to arrest you under.

If, at this point, you resist, are you resisting arrest, or are you resisting a terry stop?

Up to the cop’s description, I get it. But, once again, all they need is something that they can articulate after the fact to get a terry stop. IF you have participated in these threads before, and I know you have, then you know that these reasons can be arbitrary, capricious, and even contradictory.

Basically, they decide if they are going to “stop” you, for how long, for what reason, they don’t have to give you the reason, they don’t have to let you go, and they will charge you with resisting arrest if you refuse to cooperate, even though you are not under arrest.

If they need to investigate, why don’t they place you under arrest?

Heh, you think that police are held accountable when they abuse their power.

And to keep the population properly subservient.

You do realize that terry stops are actually pretty controversial, and if you could show that people are in favor, it is by a very narrow margin. If you pole people who have been involved in such a police encounter, then it is even worse.

Right, that’s how democracy works. I do not believe that the position that cops should have the discretion to stop anyone they want for any reason they want to look for something to charge them with is as strong a one as you think it is. It is just that most people are not aware of the powers that have been given to police with no real oversite to prevent abuse.

As people have become more aware of the abuses that police dole out upon the public, the people have been reining in those discretionary powers. May not be too long until democracy makes things like “terry stops” no longer legal.

I am happy to have this conversation, as I believe that most would take my side. Are you confident enough in your belief that people will side with the police on everything they say they want that you think that having this conversation in public would win people over to your side?

55

For the same reason you don’t call an apple an orange. They’re not the same.

Legally arrest and detainment are not the same, and their requirements are not the same when it comes to questioning the subject. Procedurally it is easier to tell a detained person they are free to go than it is to "unarrest’ someone.

k9bfriender, you want to make the kind of arguments that have already been made before the court…and failed! Even if everyone on this thread agreed with you it would still be irrelevant. This thing has been determined long ago. It is what it is. Either try to get these cases reopened and make your claim or move along.

Amusing how a debate like this was started by an OP that was probably complete and utter bullshit! :wink:

56

K9, here is an example. In Ohio, the Highway patrol has statewide traffic enforcement jurisdiction, however their “Power to Arrest” like other Police, is limited.

Arrest powers on traffic stops and on State property is permitted. That is where their criminal law jurisdiction is limited to, unless statutory exceptions are met.

They have the same power of “search and seizure” as other police, but arrest power is limited.

Example: An OHP officer sees you shoplifting, can he arrest you, no, but he can “seize” and detain you, or “Restrain you of your liberty” until police arrive

57

Because you are not under arrest.

The police need to have reasonable, articulable suspicion to make a Terry stop.

I don’t know. Maybe obstruction of the legal process. You don’t have the right to resist a Terry stop any more than you have the right to resist arrest.

They can be. Or they can be what they usually are - reasonable and articulable. If the police abuse their discretion by detaining people on arbitrary or capricious grounds, they can and should be sanctioned. Most of the time, the police have a reasonable, articulable suspicion, and don’t abuse their discretion. Cherry-picked anecdotes, virtue signaling, and lies by criminals notwithstanding.

Because probable cause isn’t always immediately apparent. Often the police have to investigate their suspicions. Sometimes those suspicions are unjustified. Sometimes they aren’t.

Yes. 100% of the time? Of course not, nothing works 100%.

No, that’s silly.

No, Terry stops are not particularly controversial, except among SJWs.

I thought you were one of the people arguing in a recent gun control that the government is us. Well, “us” have decided that Terry stops are an appropriate tool of law enforcement, despite the occasional abuses, because the benefits outweigh the drawbacks.

Cops don’t have the discretion to stop anyone they want for any reason, so this is somewhere between a strawman and fantasy.

As pkbites points out, this is untrue. Judges up to and including the Supreme Court have been fully aware of Terry stops for decades, it has been repeatedly litigated, and yet they still exist.

If you mean the SDMB, probably not. Too many SJWs, virtue signalers, and Internet tough guys. If you mean in the general public, still no - you are arguing a straw man. Nobody says the police should be given everything they say they want, or that a Terry stop should not be questioned, or any of that nonsense.

If you mean arguing a reasonable position, then yes - people want law and order, in general.

A clear majority of the US public have “a great deal” or “quite a lot” of confidence in the police, and this has persisted for the last 25 years. Compare that to, say, defense lawyers or Black Lives Matter and it does not seem to me to be at all clear that the American public is eager to change the power balance between people who get detained and the rest of us.

Regards,
Shodan

58

Thanks, eulalia, for the link to the decision. Fascinating!