• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

"Detained"

JamesB

Regular Member
Joined
Jan 13, 2010
Messages
703
Location
Lakewood, Colorado, USA
This evening I was placed in handcuffs for the simple reason of openly carrying a handgun.

I have no other details to provide untill after I speak to my attorney.

Just know that it can indeed happen, it can happen here, and it can happen to you.
 

twoskinsonemanns

Regular Member
Joined
Apr 12, 2012
Messages
2,326
Location
WV
Keep us informed. It does happen quite often I'm afraid. Only those with the wealth it takes to conquer in court have any rights.
 

Baked on Grease

Regular Member
Joined
Jul 4, 2011
Messages
629
Location
Sterling, Va.
If I recall... Anytime you are physically restrained (handcuffed) it's an arrest, not a detention. It does not matter if they let you go or take you back to the station, once the cuffs are on it's an arrest. Let's start calling it what it is, not what the cops call it.

Sent from my SCH-I800 using Tapatalk 2
 

Motofixxer

Regular Member
Joined
May 14, 2010
Messages
965
Location
Somewhere over the Rainbow
The officers can call it whatever the hell they want, but by definition and court rulings, a detention is an arrest.


DETAIN: To retain as the possession of personalty. First Nat. Bank v. Yocom, 96 Or. 438, 189 P. 220, 221. To arrest, to check, to delay, to hinder, to hold, or keep in custody, to retard, to re strain from proceeding, to stay, to stop. People v. Smith, 17 Cal.App.2d 468, 62 P.2d 436, 438. (Blacks Law 4th Ed, Pg 535)

ARREST: To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand. Ex parte Sherwood, 29 Tex.App. 334, 15 S.W. 812. Physical seizure of person by arresting officer or submission to officer's authority and control is necessary to constitute an "arrest." Thompson v. Boston Pub. Co., 285 Mass. 344, 189 N.E. 210, 213. It is a restraints however slight, on another's liberty to come and go. Turney v. Rhodes, 42 Ga.App. 104, 155 S.E. 112. It is the taking, seizing or detaining the person of another, touching or putting hands upon him in the execution of process, or any act indicating an intention to arrest. U. S. v. Benner, Bald. 234, 239, Fed.Cas.No.14,568; State v. District Court of Eighth Judicial Dist. in and for Cascade County, 70 Mont. 378, 225 P. 1000, 1001; Hoppes v. State, 105 P.2d 433, 439, 70 Okl.Cr. 179.(Blacks Law 4th Ed, Pg 140)

Berkemer v. McCarty, 468 U.S. 420 (1984)
For purposes of Fourth Amendment analysis there are basically three categories of police “contacts” with individuals: “consensual encounters,” “detentions” and arrests. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 [195 Cal. Rptr. 671, 670 P.2d 325].) Consensual encounters result in no restraint of an individuals liberty whatsoever, hence, an officer is not required to have an objective justification to stop a citizen.

Detentions are seizures...” People v. Verin (1990) 220 Cal. App.3d 551, 269 Cal,Rptr. 573 [No. A046244 Court of Appeals of California, First Appellate District, Division Four, May 17, 1990]

It is true a temporary detention constitutes a seizure of the person subject to the constraints of the Fourth Amendment. (Terry v. Ohio, 392 U.S. 1, 16 [20 L. Ed. 2D 889, 902-903, 88 S.Ct 1868].)

People v. Bremmer (1973), 30 Cal. App. 3D 1058 [Crim. No21752. Court of Appeals of California, Second Appellate District, Division Two. March 7, 1973.] The Fourth Amendment applies to all seizures of the person including those consuming no more than a minute (United States v. Brignoni-ponce, supra, 422 U.S. At pp. 879-880 [45 L. Ed.2d at pp. 615-616].)

Reasonable suspicion is formed by “specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.” Usa v Lopez Soto, 205 F.3d 1101 (9th Cir. 2000)

To detain a suspect, a police officer must have reasonable suspicion, or “specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is "in criminal activity” USA v. Michael R, 90 F3d 340, (9th Cir. 1996)

...any curtailment of a person's liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity See Brown v. Texas, 443 U.S. 47, 51 (1979) Delaware v. Prouse, 440 U.S 648, 661 (1979); United States v Brignoni-Ponce, supra ; Adams v. Williams, 407 U.S. 143, 146-149 (1972); Terry v. Ohio, supra; Reid v. Georgia, 448 U.S. 438 (1980)

“If the individual is stopped or detained because the officer suspects he may be personally involved in some criminal activity, his Fourth Amendment rights are implicated and he is entitled to the safeguards of the rules set forth above.” (Id. At p. 895.)[4] The rules to which the court refers are the following. “[1]n order to justify and investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2)the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience (People v. Superior Court (Keifer), supra. 3 Cal.3d at p. 872), to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. (Terry v. Ohio, supra, 392 U.S. At p. 22...)” (Id, at p. 893.)

People v. Schoennauer (1980) 103 Cal. App. 3D 398 “While a detention of a citizen by a Police Officer based on [9 Cal. 3D 798] a 'mere hunch' is unlawful, if there is a rational suspicion that some activity out of the ordinary is taking place, and some suggestion that the activity is related to crime, a detention is permissible.

People v. Renteria, 2 Cal. App.4th 440 [No. B055019. Second Dist, Div, Six Jan 7, 1992] ...a reasonable, articulable suspicion of criminal activity is needed to justify a detention
 

DillonT

New member
Joined
Dec 25, 2012
Messages
4
Location
Colorado
As someone training to be a police officer:

The laws posted above are, as often is seen with the law, not terribly clear. In detaining someone, they are actually not yet under arrest. You can detain someone by controlling their escape routes to the point that a reasonable person would not believe they can simply walk away from the contact. This does NOT mean that you are under arrest, however. You are not under arrest until you are actually notified that you are under arrest. Even though the officer may have you sit on the ground and not allow you to get up or move around.

I disagree with "a detention is an arrest". As a police officer, I can detain you without ever placing you under arrest. When the legal definition of detention mentions the term arrest, it is not in the "under arrest" meaning. It is under the "arrest the movement of an individual" meaning. I can go from contacting an individual to detaining them for whatever reason to letting them go.
 
Last edited:

Citizen

Founder's Club Member
Joined
Nov 15, 2006
Messages
18,269
Location
Fairfax Co., VA
As someone training to be a police officer:

The laws posted above are, as often is seen with the law, not terribly clear. In detaining someone, they are actually not yet under arrest. You can detain someone by controlling their escape routes to the point that a reasonable person would not believe they can simply walk away from the contact. This does NOT mean that you are under arrest, however. You are not under arrest until you are actually notified that you are under arrest. Even though the officer may have you sit on the ground and not allow you to get up or move around.

I disagree with "a detention is an arrest". As a police officer, I can detain you without ever placing you under arrest. When the legal definition of detention mentions the term arrest, it is not in the "under arrest" meaning. It is under the "arrest the movement of an individual" meaning. I can go from contacting an individual to detaining them for whatever reason to letting them go.

Rubbish. All a cop would have to do is refrain from saying "you're under arrest." Under your standard, I can be cuffed, transported, presented to a magistrate, booked, and put in a cell; but if the cop doesn't say "arrest", then I am not arrested. Phffft.

I suspect the distinction here is the difference between whether a custodial arrest occurred for the purposes of search, seizure, and self-incrimination determinations at a suppression hearing and whether a civil rights violation occurred under Title 42.
 
Last edited:

DillonT

New member
Joined
Dec 25, 2012
Messages
4
Location
Colorado
Rubbish. All a cop would have to do is refrain from saying "you're under arrest." Under your standard, I can be cuffed, transported, presented to a magistrate, booked, and put in a cell; but if the cop doesn't say "arrest", then I am not arrested. Phffft.

Actually, this is very much incorrect. If you aren't placed under arrest (read as: informed of your rights and the fact that you are being placed under arrest) and I "arrest" you, that "arrest" goes right out the window because it was not properly executed. So no, you couldn't be.
 
Last edited:

WalkingWolf

Regular Member
Joined
Jul 31, 2011
Messages
11,930
Location
North Carolina
Actually, this is very much incorrect. If you aren't placed under arrest (read as: informed of your rights and the fact that you are being placed under arrest) and I "arrest" you, that "arrest" goes right out the window because it was not properly executed. So no, you couldn't be.

You didn't study very well did you? Have you gone past your probationary period yet? A police officer is not allowed to detain unless there is RAS, and if that person is in handcuffs they are in custody. Technically a traffic ticket is a arrest. At times people are handcuffed for safety reasons, BUT it is because a crime has been committed or suspected of being committed. A person cannot be arrested or detained for a lawful act, it is a violation of civil rights. The difference is whether a person has been formally charged with a crime, once that happens the clock starts ticking.

I do not care whether it is called a arrest or a detention. In certain cases people are detained and not arrested because there is no authority for an arrest. These are very sticky circumstances that can bite the detainer in the arse, possibly result in criminal charges. Damn I miss Jimmy Carter, police officers used to go to prison for this sort of **** under his presidency.
 

Vader33

Regular Member
Joined
Jan 1, 2013
Messages
65
Location
Littleton, CO
I think folks tend to get "arrested" and "detained" confused for being one in the same. In Layman's, "to be placed under arrests" simply means being held for suspicion of a crime and read your Miranda Rights. To be "detained" is simply that. The officer(s) is/are preventing any means of viable escape while they conduct their investigation of whatever suspected crime or incident (placing someone in cuffs is one of the most effective ways, btw, even IF they are not under arrest. And it's totally within the law to do it).

Source: I used to be a military police officer. While military law enforcement differs slightly than civilian, the rules pertaining to arrest/detention are pretty much universal.

Maybe instead of running this guy through the mud, becoming educated on your municipality's definition of the terms would make it clearer. Not every law is the same everywhere. And remember, cops have to follow the law, too.
 
Last edited:

Fallschirjmäger

Active member
Joined
Aug 4, 2007
Messages
3,823
Location
Cumming, Georgia, USA
Actually, this is very much incorrect. If you aren't placed under arrest (read as: informed of your rights and the fact that you are being placed under arrest) and I "arrest" you, that "arrest" goes right out the window because it was not properly executed. So no, you couldn't be.
Perhaps Colorado has a differing definition of "Arrest" O.C.G.A. 17-4-1 (2010) 17-4-1. Actions constituting an arrest An actual touching of a person with a hand is not essential to constitute a valid arrest. If the person voluntarily submits to being considered under arrest or yields on condition of being allowed his freedom of locomotion, under the discretion of the officer, the arrest is complete. ___________________________________________________________________________________ No words required No touching required No Miranda rights required So either the definition you gave is incorrect; or each state has it's own rules, or there haven't been any valid arrests in Georgia since Colonial times. ___________________________________________________________________________________ Recently, (well mid-summer last year) I was arrested for trespassing because I was walking for exercise in a public park, on the walking pathway, while the park was open. No "You're under arrest" statements, No Miranda warnings, just "turn around" as an officer withdrew his handcuffs. _______________________________________________ Weird... the board appears to be having a problem separating paragraphs.....
 
Last edited:

WalkingWolf

Regular Member
Joined
Jul 31, 2011
Messages
11,930
Location
North Carolina
I think folks tend to get "arrested" and "detained" confused for being one in the same. In Layman's, "to be placed under arrests" simply means being held for suspicion of a crime and read your Miranda Rights. To be "detained" is simply that. The officer(s) is/are preventing any means of viable escape while they conduct their investigation of whatever suspected crime or incident (placing someone in cuffs is one of the most effective ways, btw, even IF they are not under arrest. And it's totally within the law to do it).

Source: I used to be a military police officer. While military law enforcement differs slightly than civilian, the rules pertaining to arrest/detention are pretty much universal.

Maybe instead of running this guy through the mud, becoming educated on your municipality's definition of the terms would make it clearer. Not every law is the same everywhere. And remember, cops have to follow the law, too.

There is no requirement to read Miranda rights while affecting an arrest, only before asking questions. In fact cops were arresting people long before there was a Miranda ruling. If a person is NOT under arrest police have no authority to prevent an escape.
 

Vader33

Regular Member
Joined
Jan 1, 2013
Messages
65
Location
Littleton, CO
If one accepts the premise that this site accurately reflects current Colorado law then, Authority Of Peace Officer To Make An Arrest — C.R.S. 16-3 would seem to disagree that a detention is not an "arrest". Detention held a full-scale arrest. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).

Look one above that one...

Stopping of defendant held not arrest but proper temporary detention in nature of field investigation. People v. Cruz, 186 Colo. 295, 526 P.2d 1315 (1974)

There's this too...

Protective search for weapons is justified only when circumstances of an otherwise valid stop provides the officer with a reasonable basis to suspect person stopped may be armed and dangerous. People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. Sutherland, 886 P.2d 681 (Colo. 1994).


We could go on for hours and hours about case studies and the like. Seeing as how JamesB is from Lakewood, here is the Lakewood Municipal Code on Open Carry.

9.32.050 Open carrying of a firearm prohibited parks, community centers, and recreational facilities
A. The open carrying or wearing of a firearm within or upon the grounds of any community center, recreational facility, the Lakewood Civic Center, City park, City trail, or City open space including any City owned, operated, or leased building or property is unlawful when said City building or City property is posted with a sign at the entrance to any City building or City property informing persons that the open carrying of a firearm is prohibited in such building or area.
B. Nothing in this section shall be construed to prohibit the following:
1. A peace officer from openly carrying or wearing a firearm as shall be necessary in the proper discharge of his or her duties;
2. An employee of any armored car service agency providing money transport services pursuant to a contractual arrangement with the City from openly carrying or wearing a firearm as may be necessary in the proper discharge of his duties so long as the employee has been duly authorized by his employer to carry firearms and the employee is acting within the course and scope of his or her employment at the time the firearms are being carried or worn;
3. A person from openly carrying or wearing a firearm while upon the grounds of the Rooney Valley Law Enforcement Training Facility who is acting in compliance with the rules and regulations of the shooting range facility; or
4. A person from openly carrying or wearing a firearm when authorized by the Director to do so for the purpose of presenting a public demonstration or exhibition or for the purpose of participating in an athletic event.
C. Possession of a valid concealed handgun permit shall not constitute a defense to a charge of open carrying of a firearm in violation of this section.
D. "Firearm" means any handgun, automatic, revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging bullets, cartridges, or other explosive charges. (Ord. O-2009-37 § 5, 2009; Ord. O-2000-44 § 1, 2000; Ord. O-97-31 § 5, 1997; Ord. O-92-25 § 10, 1992; Ord. O-86-38 § 4, 1986; Ord. O-83-2 § 1 (part), 1983).

So, according to LMC, OC'ing just for the sake of doing so, is LEGAL as long as it is not on City property or otherwise posted. I'm only citing Lakewood Municipal Code because he didn't say where it happened.


Furthermore...

The officers can call it whatever the hell they want, but by definition and court rulings, a detention is an arrest.


DETAIN: To retain as the possession of personalty. First Nat. Bank v. Yocom, 96 Or. 438, 189 P. 220, 221. To arrest, to check, to delay, to hinder, to hold, or keep in custody, to retard, to re strain from proceeding, to stay, to stop. People v. Smith, 17 Cal.App.2d 468, 62 P.2d 436, 438. (Blacks Law 4th Ed, Pg 535)

ARREST: To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand. Ex parte Sherwood, 29 Tex.App. 334, 15 S.W. 812. Physical seizure of person by arresting officer or submission to officer's authority and control is necessary to constitute an "arrest." Thompson v. Boston Pub. Co., 285 Mass. 344, 189 N.E. 210, 213. It is a restraints however slight, on another's liberty to come and go. Turney v. Rhodes, 42 Ga.App. 104, 155 S.E. 112. It is the taking, seizing or detaining the person of another, touching or putting hands upon him in the execution of process, or any act indicating an intention to arrest. U. S. v. Benner, Bald. 234, 239, Fed.Cas.No.14,568; State v. District Court of Eighth Judicial Dist. in and for Cascade County, 70 Mont. 378, 225 P. 1000, 1001; Hoppes v. State, 105 P.2d 433, 439, 70 Okl.Cr. 179.(Blacks Law 4th Ed, Pg 140)

Berkemer v. McCarty, 468 U.S. 420 (1984)
For purposes of Fourth Amendment analysis there are basically three categories of police “contacts” with individuals: “consensual encounters,” “detentions” and arrests. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 [195 Cal. Rptr. 671, 670 P.2d 325].) Consensual encounters result in no restraint of an individuals liberty whatsoever, hence, an officer is not required to have an objective justification to stop a citizen.

Detentions are seizures...” People v. Verin (1990) 220 Cal. App.3d 551, 269 Cal,Rptr. 573 [No. A046244 Court of Appeals of California, First Appellate District, Division Four, May 17, 1990]

It is true a temporary detention constitutes a seizure of the person subject to the constraints of the Fourth Amendment. (Terry v. Ohio, 392 U.S. 1, 16 [20 L. Ed. 2D 889, 902-903, 88 S.Ct 1868].)

People v. Bremmer (1973), 30 Cal. App. 3D 1058 [Crim. No21752. Court of Appeals of California, Second Appellate District, Division Two. March 7, 1973.] The Fourth Amendment applies to all seizures of the person including those consuming no more than a minute (United States v. Brignoni-ponce, supra, 422 U.S. At pp. 879-880 [45 L. Ed.2d at pp. 615-616].)

Reasonable suspicion is formed by “specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.” Usa v Lopez Soto, 205 F.3d 1101 (9th Cir. 2000)

To detain a suspect, a police officer must have reasonable suspicion, or “specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is "in criminal activity” USA v. Michael R, 90 F3d 340, (9th Cir. 1996)

...any curtailment of a person's liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity See Brown v. Texas, 443 U.S. 47, 51 (1979) Delaware v. Prouse, 440 U.S 648, 661 (1979); United States v Brignoni-Ponce, supra ; Adams v. Williams, 407 U.S. 143, 146-149 (1972); Terry v. Ohio, supra; Reid v. Georgia, 448 U.S. 438 (1980)

“If the individual is stopped or detained because the officer suspects he may be personally involved in some criminal activity, his Fourth Amendment rights are implicated and he is entitled to the safeguards of the rules set forth above.” (Id. At p. 895.)[4] The rules to which the court refers are the following. “[1]n order to justify and investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2)the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience (People v. Superior Court (Keifer), supra. 3 Cal.3d at p. 872), to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. (Terry v. Ohio, supra, 392 U.S. At p. 22...)” (Id, at p. 893.)

People v. Schoennauer (1980) 103 Cal. App. 3D 398 “While a detention of a citizen by a Police Officer based on [9 Cal. 3D 798] a 'mere hunch' is unlawful, if there is a rational suspicion that some activity out of the ordinary is taking place, and some suggestion that the activity is related to crime, a detention is permissible.

People v. Renteria, 2 Cal. App.4th 440 [No. B055019. Second Dist, Div, Six Jan 7, 1992] ...a reasonable, articulable suspicion of criminal activity is needed to justify a detention

You just listed several definitions of "Detain" as it is NOT the same as "Arrest." In the first line of your definitions, "To Arrest" is not the same definition as "To be placed under arrest." Every definition given here outlines WHEN a police officer can place a person "under lawful arrest" and WHAT criteria MUST be met.


Here's Webster's definitions of both terms...

Definition of DETAIN

1: to hold or keep in or as if in custody <detained by the police for questioning>

2 obsolete : to keep back (as something due) : withhold
3: to restrain especially from proceeding <was detained by a flat tire>


Definition of ARREST

1a : to bring to a stop <sickness arrested his activities>
b : check, slow
c : to make inactive <an arrested tumor>

2: seize, capture; specifically : to take or keep in custody by authority of law

3: to catch suddenly and engagingly <arrest attention>

Can we PLEASE stop kicking the dead horse now?
 
Last edited:

Fallschirjmäger

Active member
Joined
Aug 4, 2007
Messages
3,823
Location
Cumming, Georgia, USA
"Arrested", "Detained", "Stopped"... the only thing that matters is what is prohibited by the Fourth Amendment, and that is "Seizure".

Was he, you, your friend, the friend of a friend, whatever "seized"?

Paragraphing fixed... apparently WYSIWYG on this board and FireFox aren't getting along very well.
 
Last edited:
Top