# Questions about arrests and custody **URL:** \ **Category:** Factual Questions\ **Created:** [March 29, 2012, 2:37pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161 "2012-03-29T14:37:05Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [March 30, 2012, 4:46pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/41 "2012-03-30T16:46:35Z")
> [@Loach](#): > > [http://le.alcoda.org/publications/files/CCI\_2012\_Sample\_Chapter.pdf](http://le.alcoda.org/publications/files/CCI_2012_Sample_Chapter.pdf) > > Warning PDF That’s helpful, though they also sprinkle in the term “seize”. At one point is seem to define detain as “temporarily seize”, but the detention itself is supposed to be temporary unless is later escalated into an arrest. Is there any significant difference between seize and detain? ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [March 30, 2012, 4:49pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/42 "2012-03-30T16:49:38Z")
> [@lawbuff](#): > > Since he was let go, the trial Judge, if it gets to that, will not make a ruling on that. > > If he wishes to sue for false arrest, that is a Civil 4th AM complaint, among others. > > The court then would decide the issue. Wouldn’t the trial judge (assuming there will be one) have to make a determination, if the prosecution tries to use part of the statement, and the defense claims the statement was some kind of… “fruit” of an illegal arrest? That would presumably raise a question of admissibility. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 30, 2012, 4:56pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/43 "2012-03-30T16:56:39Z")
> [@Boyo\_Jim](#): > > Is there any significant difference between seize and detain? In the Field, no. ---
**Author:** ![Clothahump](https://avatars.discourse-cdn.com/v4/letter/c/51bf81/32.png) [@Clothahump](https://boards.straightdope.com/u/Clothahump)\ **Post date:** [March 30, 2012, 4:58pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/44 "2012-03-30T16:58:57Z")
> [@Bricker](#): > > You can be cuffed without being arrested. > > Many departments have a policy of cuffing people they transport, for officer safety, even if the person is being detained, not arrested. This. It is more than likely department policy. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 30, 2012, 4:59pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/45 "2012-03-30T16:59:14Z")
> [@Boyo\_Jim](#): > > Wouldn’t the trial judge (assuming there will be one) have to make a determination, if the prosecution tries to use part of the statement, and the defense claims the statement was some kind of… “fruit” of an illegal arrest? That would presumably raise a question of admissibility. I thought you were refering to a Civil suit. If he is falsely arrested, it matters not what his statements inside were for litigation purposes. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2012, 5:00pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/46 "2012-03-30T17:00:30Z")
> [@Boyo\_Jim](#): > > That’s helpful, though they also sprinkle in the term “seize”. At one point is seem to define detain as “temporarily seize”, but the detention itself is supposed to be temporary unless is later escalated into an arrest. > > Is there any significant difference between seize and detain? No. The police seize you, within the meaning of the Fourth Amendment, the moment they restrict your freedom to leave. They can do this without probable cause. They can transport you briefly – say, return you to the scene of the crime to allow the victim to visually ID you – with only reasonable suspicion. Transport to the station must generally be voluntary or supported by probable cause. Holding in the field for a reasonable period of time can be done with only reasonable suspicion – when the police can point to specific, articulable facts that would give a reasonable person suspicion. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [March 30, 2012, 5:02pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/47 "2012-03-30T17:02:59Z")
> [@lawbuff](#): > > Detentions vs. de facto arrests: If a detention is deemed a de facto arrest, it becomes unlawful unless the officers had probable cause. Which is why I said the same thing. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [March 30, 2012, 5:07pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/48 "2012-03-30T17:07:09Z")
> [@lawbuff](#): > > That does not cite any case law. Additionally, it addresses FIELD detentions only, not a transportation to a station as in Dunaway and Zimmerman, if he went INvoluntarily that is. > > To quote though from your link though: > > Detentions vs. de facto arrests: If a detention is deemed a de facto arrest, it becomes unlawful unless the officers had probable cause. > [@lawbuff](#): > > That does not cite any case law. Additionally, it addresses FIELD detentions only, not a transportation to a station as in Dunaway and Zimmerman, if he went INvoluntarily that is. > > To quote though from your link though: > > Detentions vs. de facto arrests: If a detention is deemed a de facto arrest, it becomes unlawful unless the officers had probable cause. It does refer to a detention becoming a de facto arrest if the suspect is “unnecessarily” transported, which suggests that under some circumstances it is necessary and doesn’t become an arrest. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 30, 2012, 5:11pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/49 "2012-03-30T17:11:23Z")
> [@Bricker](#): > > Transport to the station must generally be voluntary or supported by probable cause. Holding in the field for a reasonable period of time can be done with only reasonable suspicion – when the police can point to specific, articulable facts that would give a reasonable person suspicion. This is the Sharpe case I mentioned, and when a prolonged detention, Terry stop, results in a defacto arrest, and cites Dunaway and TERRY. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=470&invol=675](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=470&invol=675) ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 30, 2012, 5:14pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/50 "2012-03-30T17:14:10Z")
> [@Boyo\_Jim](#): > > It does refer to a detention becoming a de facto arrest if the suspect is “unnecessarily” transported, which suggests that under some circumstances it is necessary and doesn’t become an arrest. I understand that, but we are speaking of jailhouse detention, not field detention. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [March 30, 2012, 5:24pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/51 "2012-03-30T17:24:10Z")
> [@lawbuff](#): > > While some may disagree on the exact verbiage, an arrest is a charge, period. So what would be the charge then?😕 ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [March 30, 2012, 5:26pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/52 "2012-03-30T17:26:05Z")
> [@Bricker](#): > > He could have declined, if he volunteered. > > However, there is another level between “volunteered” and “arrested.” > > This called “detention.” Police may, without probable cause, briefly detain you to investigate a situation. The length of detention must be reasonable to the situation. Additionally, most departments have a policy that those who are “detained” for questioning be cuffed for the protection of the officers involved. In may be more a matter of following policy than exercising discretion. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 30, 2012, 5:33pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/53 "2012-03-30T17:33:34Z")
> [@lawbuff](#): > > While some may disagree on the exact verbiage, an arrest is a charge, period. > [@DrDeth](#): > > So what would be the charge then?😕 Say you are arrested and released before the time frame the constitution demands, PC was needed to arrest, period. If we assume zimmerman went INvoluntarily, then there needed to be a constitutional charge, say Murder. IF he was taken in without PC, it was an illegal arrest, regardless of the booking charge or no booking charge. When you hear a person was arrested for “Suspicion of murder”, it is just that, phraseology, as an arrest requires PC, not supsicion. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [March 30, 2012, 7:01pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/54 "2012-03-30T19:01:48Z")
> [@Boyo\_Jim](#): > > It does refer to a detention becoming a de facto arrest if the suspect is “unnecessarily” transported, which suggests that under some circumstances it is necessary and doesn’t become an arrest. Here is the case I was trying to remember, not the Sharpe case I cited though. When did the Terry Stop of Richardson turn into an arrest? This is a field detention though, different from Dunaway. [http://openjurist.org/949/f2d/851](http://openjurist.org/949/f2d/851) ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [March 30, 2012, 7:33pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/55 "2012-03-30T19:33:54Z")
> [@Morgenstern](#): > > Additionally, most departments have a policy that those who are “detained” for questioning be cuffed for the protection of the officers involved. In may be more a matter of following policy than exercising discretion. Being cuffed may not raise the bar to an arrest. If it is department policy to cuff during transport they better be able to prove that they do it for everyone. If officer protections are deemed unnecessary or excessive then it becomes a de facto arrest. In this case the point is moot right now. I have heard nothing to say that it was anything but voluntary and I have not heard of his lawyer making a stink about an unlawful detention. Although even if voluntary it could still be ruled a de facto arrest. If at some point after volunteering he felt he was no longer free to go(even if he said nothing) and a court rules that a reasonable person would feel the same then it would be deemed an unlawful arrest if there would were no probable cause. Then they would have the unenviable task of arguing there was probable cause for the de facto arrest when their chief later stated there was not probable cause for an actual arrest. In reality if it was deemed an unlawful arrest there would only be couple of things which could happen. Zimmerman could sue for false arrest. I highly doubt that would happen. And any statements he made after the unlawful arrest or evidence seized could get thrown out due to 4th amendment issues. ---
**Author:** ![Irishman](https://avatars.discourse-cdn.com/v4/letter/i/b487fb/32.png) [@Irishman](https://boards.straightdope.com/u/Irishman)\ **Post date:** [March 30, 2012, 7:48pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/56 "2012-03-30T19:48:59Z")
All I know is if the cops start pulling out cuffs, I’m going to feel arrested. If they want to detain me at the scene by virtue of saying “don’t go anywhere”, I’ll accept that. If they want to cuff me to something, or cuff me and stick me in their car, I am going to feel unvoluntary very quickly. If they want to give me a ride to the station so I can make a voluntary statement, and they say it’s their policy to cuff anyone they give a ride, I’ll decline and transport myself to the station. Unless they ask me for my “safe word”. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [March 30, 2012, 7:56pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/57 "2012-03-30T19:56:00Z")
> [@Irishman](#): > > All I know is if the cops start pulling out cuffs, I’m going to feel arrested. If they want to detain me at the scene by virtue of saying “don’t go anywhere”, I’ll accept that. If they want to cuff me to something, or cuff me and stick me in their car, I am going to feel unvoluntary very quickly. > > If they want to give me a ride to the station so I can make a voluntary statement, and they say it’s their policy to cuff anyone they give a ride, I’ll decline and transport myself to the station. > > Unless they ask me for my “safe word”. Bananas? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2012, 8:00pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/58 "2012-03-30T20:00:28Z")
> [@Loach](#): > > And any statements he made after the unlawful arrest or evidence seized could get thrown out due to 4th amendment issues. That could create some really fascinating evidentiary issues. Zimmerman wants to show, at trial, that he made the claim of self-defense right away. Normally that would be hearsay, but if the police introduce his post-arrest statements, there’s probably a _res gestae_ requirement that they include his exculpatory claims as well. Now the defense seeks to exclude those post-arrest statements as fruit of the illegal arrest. How do they get his exculpatory self-defense claim in? Obviously he can repeat the claim at trial. but he can’t show that he said it THEN, or that he’s now testifying consistently with his statements that night (assuming he is). Am I missing something? ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [March 30, 2012, 8:01pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/59 "2012-03-30T20:01:56Z")
Verily, ‘tis a mindfucker.😃 ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [March 30, 2012, 8:03pm UTC](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161/60 "2012-03-30T20:03:58Z")
> [@Bricker](#): > > That could create some really fascinating evidentiary issues. > > Zimmerman wants to show, at trial, that he made the claim of self-defense right away. Normally that would be hearsay, but if the police introduce his post-arrest statements, there’s probably a _res gestae_ requirement that they include his exculpatory claims as well. > > Now the defense seeks to exclude those post-arrest statements as fruit of the illegal arrest. > > How do they get his exculpatory self-defense claim in? Excited utterance? [Previous page](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161.md?page=2) [Next page](https://boards.straightdope.com/t/questions-about-arrests-and-custody/617161.md?page=4)