Detention by the police
People ask me often – “I was stopped by the police and they kept me for a really long time. Can they do that?”
The first question is: Were you there voluntarily or were you detained? That simple question can have huge impact on what the police can and can’t do, what your rights are and whether or not any statements or evidence is legally admissible against you.
Were you there voluntarily?
As long as the police are in a place they have a lawful right to be, they can contact anyone they want without any legal excuse or justification. This is a “consensual encounter.” The key is that the person they’re contacting must be free to go. They have to feel free to leave and to not cooperate. If the police do or say anything that changes this, then it’s no longer a consensual encounter and you have been detained. However, if you agree to stay, then the answer to how long can they keep me is, “However long you let them.” If you want to go, unless they have more, you can go. If you’re ever in a situation where you’re not sure if you’re detained or not, ask them if you’re free to go. If they say no, you’re detained.
You’re detained. Now what?
During a detention, you are not free to leave, but it’s not to the same full custody level as an arrest. They can use reasonable force to keep you there (for example, handcuffing you or putting you in the back of a patrol car). During a detention, they may continue to question you, but importantly, they do NOT have to read you your Miranda rights. Do you still have a right to remain silent and not implicate yourself? Absolutely, but during a detention, they don’t have to warn you before questioning you. It’s up to you to remember and exercise your rights. If they ask you questions, you can always decline, saying you’d like to consult with an attorney before answering any questions.
How long can they detain you?
The vague answer is: As long as it takes to investigate the underlying reason for the detention. For example, if you’re driving down the street and they pull you over for a burnt out tail light, they can stop you and detain you for a reasonable amount of time to get your driver’s license, registration, proof of insurance and to write a ticket. During that time, they may run you to see if your license is suspended, etc., but they can’t hang onto you for any longer than necessary to handle the traffic stop. What if their computers are slow and they can’t run you for 45 minutes? That seems a bit excessive for a simple traffic stop and is probably too long, making your detention illegal.
If, however, they find something during the initial detention that gives them a new reason to detain, they can extend the detention period further to investigate the new information. The classic example is a traffic stop for expired registration, but when they approach the driver, they smell alcohol. This new information (smell of alcohol) may allow them to now switch gears and do a DUI investigation, something that can take longer than a simple traffic ticket.
What does it matter if it’s a consensual encounter or detention?
You are free to not cooperate during a consensual encounter. You could tell them your name is Mickey Mouse if you wanted and there isn’t a crime. During a detention, if you choose to speak to officers, you cannot give false information, such as falsely identifying yourself. You also can’t resist arrest or the detention.
Another important difference is that during a consensual encounter, the police have no legal authority to search you unless you consent. They can always ask if you will allow them to “pat you down” or search you, but you can decline during a consensual encounter. During a detention, they have a very limited ability to search you – if they can legally justify the detention PLUS have additional facts to justify a limited search, they can do a pat-down for weapons only. During a detention, they can’t do a full search of your pockets, wallet, etc. without your consent. Keep that in mind. You always have the right to decline a search by the police. If they search without your consent, especially if they do a full search without justification, we may be able to suppress evidence they want to use against you.
Every case is unique. To discuss your situation further, give me a call and we’ll make time to talk.