Handcuffed, detained, but NOT arrested?

[Mark Shaw]

I've seen, from time to time, descriptions of people being
detained - sometimes to include handcuffing and/or being
locked in a holding cell - but being told by the law-
enforcement personnel doing the detaining that they are
"not under arrest."

Recent example:

www.floridapoliticalpress.com/2012/06/04/pro-walker-marine-detained-by-police-at-
wisconsin-rally-is-son-of-florida-tea-party-leader/

Excerpt from article:
Without being told what I had done, I was handcuffed and escorted
off premise. Placed in a squad car and taken to a police station.
I asked if I should have my rights read to me and was told
"You're not being arrested." My personal property was taken
from me, I was fingerprinted, mug shot taken and locked in a
dark jail cell (lights off) still handcuffed.

Now, I don't know that I'd take this particular interested
party's word for this, but as I wrote above I've seen this in
other contexts from time to time - so that's just an example
of what I'm talking about.

Somebody (who is neither a lawyer nor a cop) has suggested to me
that the distinction here is one of police procedure; that they
tend to consider an arrest to be a specific set of steps taken
in a particular order, etc., and that in stark legal terms, a
person who is not free to go is, indeed, "under arrest."

What's the real story here? Is there such a thing as being so
detained, but not legally under arrest, in any US jurisdiction?

Thanks for any info.

--
Mark Shaw
========================================================================
"If you don't read the newspaper, you are uninformed. If you do read
the newspaper, you are misinformed." -Mark Twain

[Barry Gold]

Mark Shaw wrote:
> I've seen, from time to time, descriptions of people being
> detained - sometimes to include handcuffing and/or being
> locked in a holding cell - but being told by the law-
> enforcement personnel doing the detaining that they are
> "not under arrest."

[snip]

> What's the real story here? Is there such a thing as being so
> detained, but not legally under arrest, in any US jurisdiction?

Well, there is at least one intermediate state: "investigative detention".

For example, you are deriving along. A cop comes along, turns on his
gumball lights, and motions for you to pull over. Then he comes over
and asks you a bunch of questions and eventually writes you a ticket.
During this period, you are _not_ free to leave, but you are also not
"under arrest" or "in custody". The courts do not require the giving of
Miranda warnings in this case (I think they should be given any time a
person is not free to leave, or even that a reasonable person would
_think_ they are not free to leave).

For other examples, look up "Terry stop" in WIkipedia.

However, for legal purposes _in the US_, it's hard to see how you can be
_not_ under arrest if you are detained for more than a brief period of
time -- long enough to decide whether or not the "reasonable suspicion"
that leads to the stop will lead to "probable cause," which is what is
required for an arrest.

And that goes double if the person is transported somewhere else, locked
in a holding cell, etc. I _think_ even somebody being held as a
Material Witness is technically under arrest.

[Dave M.]

Mark,

Here's a web-site which discusses detention and arrest.
criminal-law.freeadvice.com/criminal-law/arrests_and_searches/arrest-detention.htm

I did go to your recommended URL. The title of the article does use the
word detained. What I saw in the accompanying video was a man who was loudly
and aggressively proclaiming his rights that allow him to march around at
the "other side's" political rally. A police officer tells him quite clearly
that "you're going to get your ass kicked". He does not take this common
sense advice. He continues to "look for trouble" by shouting at others. The
police then grab him and remove him from the area before anything happens.

It's a tough call. I think that the police should have waited till a
punch was thrown and then arrested this guy. Since he was being followed by
a vidiographer I suspect that he was desirous of some sort of confrontation.
The long period of detention that was described seems inappropriate to me.
They could have tossed him in a car, driven him to a police station, and
wished him a pleasant afternoon as they dumped him on the street. I'm ok
with the handcuffs but the jail cell leaves me very uncomfortable.

I'm interested in what others will say. These confrontations at rallies
are not new. Sometimes gunfire breaks out. Sometimes people die.

Good luck,
Dave M.

[A Michigan Attorney]

Mark Shaw wrote:

> I've seen, from time to time, descriptions of people being
> detained - sometimes to include handcuffing and/or being

> locked in a holding cell - but being told by the law-=20
> enforcement personnel doing the detaining that they are=20
> "not under arrest."=20

> Somebody (who is neither a lawyer nor a cop) has suggested to me =20
> that the distinction here is one of police procedure; that they =20
> tend to consider an arrest to be a specific set of steps taken =20
> in a particular order, etc., and that in stark legal terms, a =20
> person who is not free to go is, indeed, "under arrest."=20
>
> What's the real story here? Is there such a thing as being so=20
> detained, but not legally under arrest, in any US jurisdiction?=20

Constitutionally speaking, "arrest" is meaningless. The proper term
is "seized". With respect to a person, a seizure occurs when a
government agent (usually a policeman) asserts his authority
(usually including physical force, but not necessarily violence) and
informs the person that he is not free to leave. "Arrest" is the
term often used, but it is not required.

[slide]

Mark Shaw wrote:

[questions this story]

> Excerpt from article:
> Without being told what I had done, I was handcuffed and escorted
> off premise. Placed in a squad car and taken to a police station.
> I asked if I should have my rights read to me and was told
> "You're not being arrested." My personal property was taken
> from me, I was fingerprinted, mug shot taken and locked in a
> dark jail cell (lights off) still handcuffed.

In all jurisdictions I know of, you can be detained for a reasonable
period of time while the police investigate things to determine if an
arrest is warranted. An example is you being stopped by a police for a
traffic infraction. You can be detained for as long as it takes for the
police to run a wants and warrants on you plus write the cite.

My guess is either this story isn't accurate or police violated
procedure or some very odd circumstances prevailed.

Here is some advice from the defense bar:
http://www.joedane.com/featured/interacting-with-the-police

[Seth]

Mark Shaw <ms...@bangnetcom.com> wrote:
> I've seen, from time to time, descriptions of people being
> detained - sometimes to include handcuffing and/or being
> locked in a holding cell - but being told by the law-
> enforcement personnel doing the detaining that they are
> "not under arrest."

Based on the facts you provide, I'd say that a lawsuit for
False Arrest would not be barred by a claim that the plaintiff
was not arrested.

Seth