There have been some discussions on this board recently regarding your rights vs. search and seizure by the police. I was discussing some of this with my wife and mentioned ways to assert your legal rights against the police in some instances (such as at a road block).
My wife responded that while you may technically be in the right fighting the police in such a fashion it’d mostly be stupid since the police are almost certain to make life difficult on you while still acting within their rights. Ultimately, she said, they could just nab you (legally) and toss you in a lockup for up to 48 hrs. without arresting you or pressing charges (mostly because you just pissed them off but ostensibly for some other reason).
Are there any restrictions on this? Do the police have to show some reason why they thought locking you up for 2 days was justifiable? If so how justified do they have to be? Can they be vague and say that they’d been looking for a suspect who was about 5’7" with brown hair and eyes and I fit that description or do they need something more concrete than that?
For the sake of argument assume absolutley no laws were broken by me and the police know it.
I can only speak for the State of Illinois, but it is my educated guess that most States are pretty much the same. In Illinois, the police can only arrest a person if that person has an active arrest warrant out for them (or the officer has a reasonable belief that there is an active warrant), or if the officer has "reasonable grounds to believe that the person is committing or has committed an offense). 725 ILCS 5/107-1. This does not allow them to just grab you and lock you up for 48 hours. If they did, you have a lawsuit against the police that any PI lawyer would drool over. In the example you gave, the police would have no reasonable belief that you were or had committed the offense (unless of course they were in fact looking for a suspect who matched your description.).
As an aside, the officer would be able to detain you for a short period of time if they were conducting an “investigation.” So, if you were a complete jerk to the officer (which is within your rights as a citizen of the United States), and he decided that he wanted to “investigate” you further, he may be able to keep you at the road block for a short amount of time. But again there are limits. In the Illinois code, it’s at 5/107-14 a peace officer can stop any person in a public place for a reasonable period of time if the officer reasonably infers from the circumstances that you did, are, or are about to commit a crime (called a Terry Stop).
Also, the police officer, if you really pissed him off, could arrest you for a variety of charges, including Disorderly Conduct or Resisting a Peace Officer. Then you sit for up to 48 hours. Of course if these charges are made up, you’re back to your ability to sue the pants off of the city.
Finally, I think it is just a good idea to treat police officers with the respect they are due.
If you really pissed them off, they could bring you to a psychiatric locked ward for observation, stating that you had expressed suicidal ideation and acted in a fashion dangerous to yourself. Then you will be held on a locked ward for 30 days in the company of…well, other residents of the locked ward…and subjected to the compassionate and concerned care of public psych bin nurses and orderlies, who won’t force-drug you unless you give them an excuse.
At the end of the 30-day eval period, you’d get to leave unless the evaluating doctor considers you to be, indeed, a danger to self or others, in which case you still get to contest the allegation.
But you’d have no recourse during or concerning the 30 days because it isn’t considered an arrest and as far as I know there are no legal standards that define doing it “falsely”.
Of course it would require lying on the part of the officers in question, but that was implicit in
OTOH, if they were going to lie they could say you resisted arrest and tried to grab Officer#1’s gun, which is why they had to shoot you.
As always with legal questions, it’s important to specify the jurisdiction to which the question refers. Are you speaking of the USA in general? A US state in particular? Another country?
For example, in France, police are legally entitled to keep a suspect in custody for up to 48 hours with only limited contact with an attorney (garde à vue).
Police officers once left me on the median of a 6-lane highway. During a blizzard. After my car was demolished by an 18-wheeler. I had to hitch a lift home.
I treat police with far, far more respect than I think they deserve.
My wife was at a Grateful Dead concert and one of the people she was with decided he had to take a leak. An undercover cop and her partner busted him and arrested him. My wife and her other friends were standing some distance away (so the guy could pee in private) and when they approached the female officer warned them to stay away, which they did.
Unfortunately the guy who took the leak had the tickets. One of my wife’s friends took one step forward (still 25 feet or more from the police), raised his hand and said, “Excuse me ma’am.” The cop turned around and said she had had it with him and proceeded to arrest him as well. Somewhere during the course of events they had asked the police to show identification which they never did and at also refused to specify what her friend was being arrested for. Eventually they charged him with resisting arrest and obstruction of justice (both felony charges). The guy taking a piss got a misdemeanor public indecency charge.
FWIW nobody was drunk or under the influence of drugs. My wife and all of her friends were young professionals…probably not what the police expected to see turn up at a Dead show. Not that yuppies can’t or don’t do drugs but neither were they some kind of high school dropout drug addicts either. (And FWIW you get an incredibly wide variety of people showing up at Dead shows…it was part of the fun.)
My wife and her friends showed up at court to testify on their friend’s behalf a few months later. The female cop insisted that she had shown her badge several times and that the person in question was up in her face (literally inches away by her testimony) harrassing her badly. Obviously my wife and her friends testified differently and to his credit, the other police officer did not corroborate the other officer’s testimony. He answered over and over that he simply did not remember the details (which we guess was his stab at being honest without getting his partner in trouble).
All charges were dropped (the guy who took a piss pleaded no contest in another trial and paid a fine).
I’m sure there are other stories out there. I have no doubt many, even a majority, of police are honest but there are enough bad apples to make assuming you have a ‘good’ cop a bad assumption. I think it is quite possible to get unfairly detained (or worse) by the police for asserting your rights if the police view that assertion as being a pain in the ass to them.
All of that said I am always polite to police. Frankly, most times I’ve done something to get caught by the police I was doing whatever they said I was (basically speeding although once I was unfairly detained but that’s a story for another time). I know the risks associated with speeding and I see no reason to bust the cops chops because he or she is doing their job.
I seem to recall a Supreme Court case a decade or so ago in which they formulated a rule that says you have to be taken to a magistrate or otherwise arraigned within a reasonable time after arrest. Or something to that effect. The 48 hours comes into play not as a hard and fast rule, but because the court mentioned that as the outer limit of a legitimate delay in most circumstances.
'Course, I don’t have a cite, and I haven’t read that case since Criminal Procedure in my second year of law school.
