When Are You In Police Custody?

when are you in police custody

When Are You in Police Custody?


In the realm of criminal law, the time you are placed in police custody matters. So, when are you in police custody? Being placed in custody triggers a host of rights and required warnings, some of which include:

  • Before being placed in custody officers must have probable cause to believe you have committed or were in the process of committing a misdemeanor or felony;
  • Before interrogating you, officers must read you your Miranda rights;
  • If you invoke your right to an attorney, you cannot be questioned without an attorney being present to assist you and provide you with counsel;

However, when exactly are you considered to be “in custody?” Hint: The answer is not as simple as whenever police announce that you are under arrest.

Detention vs. Custody

Although similar concepts, being arrested or placed in police custody is not the same as being detained by police. Police are able to stop and briefly detain someone when they have reasonable suspicion to believe the individual has committed a crime or is in the process of committing a crime. The officer may detain an individual for a brief amount of time, but only so much time as is necessary to check to see if the individual has any outstanding warrants and to investigate the officer’s reasonable suspicion (the U.S. Supreme Court has suggested in some of its opinions that 20 minutes is an appropriate amount of time to detain an individual). If at the end of the detention period the officer has developed probable cause to believe a crime has been or is being committed, the officer may place the individual under arrest. Otherwise, the officer must allow the individual to continue on his or her way.

Custody is markedly different. When a person is placed in custody, his or her freedom of movement is taken away and he or she must comply with the instructions and directives of law enforcement officers. As noted above, once a person is in custody he or she must be provided with the Miranda warnings before police proceed to interrogate him or her. Finally, the person placed in custody has rights to have a reasonable bail imposed, to promptly see a judge and be informed of the charges against him or her.

So When Are You in Police Custody?

when are you in police custody

We return now to the original question, “When is a person considered to be ‘in custody’?” Obviously being told you are “under arrest” and/or being placed in handcuffs results in a person being “in custody.” However, courts have held that being in a situation where a reasonable person would not feel free to leave in a short period of time can mean that a person is “in custody.” While the defendant’s subjective feelings about the matter (i.e., whether the defendant felt free to leave) may be considered, the question ultimately calls for an objective answer: If a reasonable person in the person’s situation would not have felt free to leave, then the person will be considered to be “in custody.”

Facts and circumstances that suggest a person is in custody include:

  • Being handcuffed or physically restrained;
  • The length of time a person is in the presence of an officer;
  • Whether the officer informs the defendant he or she is free to leave;
  • Whether the officer is retaining personal property of the person (i.e., the person’s driver’s license);
  • Whether the officer’s vehicle’s emergency lights are illuminated;
  • Whether there is a show of force – loud commands, drawn weapons or Tasers, etc.

If an officer places you in custody and subsequently violates your constitutional and/or statutory rights, you may be able to have evidence obtained because of the violations suppressed and kept out of court. This can negatively affect the prosecution’s ability to proceed with its case. Always consult professional criminal defense lawyers.

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