How Do You Know If You’re Under Arrest? Police Interaction, Part XIV

How Do You Know If You’re Under Arrest?  Police Interaction, Part XIV

By Benjamin A. Tracy, Columbus Criminal Defense Lawyer and Civil Rights Attorney

This is the fourteenth part in a series of posts about what legal obligations you have when you interact with the police.

Situation 14

Suppose you are walking along the sidewalk.  Seeing someone you know on the other side of the street, you cross.  A police officer sees you and tells you to stop.  He asks for your identification.  You hand it to him and he begins writing you a ticket for jaywalking.  He finishes writing you the ticket and hands it to you but says, “Walk across the street with me to my car.  I’ll return your identification after you answer a few questions.”  You cross the street together and he starts asking you questions about a recent assault that took place nearby.

You might wonder, am I under arrest?

The BEST answer:  Probably. You should ask if you are free to leave and, if not, ask for an attorney.

The CORRECT answer:  Probably so.  Don’t say anything.

The WRONG reaction:  Answer all his questions.

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You will recall from other blog posts, a police officer may “stop” you for a brief period of time.  In this case, the officer “stopped” you when he told you to stop and wrote you the ticket for jaywalking.  However, “stops,” unlike arrests, must be limited in scope and duration based on the specific reason for the stop.  Thus, when the police officer finished writing you up for jaywalking (which was the purpose of the stop) and handed you the ticket, legally speaking, the stop was over.

The United States Supreme Court has made clear on a number of occasions that you are “seized” when a reasonable person would not feel free to leave.  In this case, even though the stop is supposed to be over, the police officer still has your identification, which you are not going to leave without.

On top of that, he has asked you to come with him to his car and indicated that you will not get your identification back until you answer some questions.  So, you would not feel free to leave and thus you are still seized.  However, because the purpose of the stop (the jaywalking ticket) has been completed, you are no longer “stopped.”  When you are “seized” but not “stopped,” legally speaking there is only one other option – arrest.

Most people, even police officers, do not understand the point this example makes.  Many folks (including some police officers) think a person is “arrested” when the officer puts the cuffs on them and says what TV cops say, “You’re under arrest for the crime of something or other.  You have the right to remain silent, etc.”

In fact, the lines between being involved in a consensual questioning session, being stopped, and being arrested are much blurrier and harder to figure out than TV makes them seem.  In this example, because the officer has specifically conditioned the return of  your identification on you answering questions about the recent assault and, in addition, has ordered you to come with him, there’s really no doubt that he is intending to detain you beyond the scope of the jaywalking stop.  Thus the most reasonable conclusion at this point is that you have been arrested on suspicion of assault.

The BEST thing to do in a situation where you are not sure whether you are arrested or not is to simply ask if you are free to go.  In this example, the fact that the officer kept your identification and asked you to come with him strongly suggests that you are in custody, but it never hurts to ask.  Assuming that you are not free to go, now is the time to ask for a lawyer and then remain silent.  It would be legally CORRECT to just silently follow the officer and not answer his questions.

However, a better policy is to figure out whether you are arrested or not by asking if you are free to leave and then, assuming you are not free to leave, asking for an attorney who hopefully will be able to get you out of custody.  As discussed in prior posts, the WRONG thing to do in this case would be to answer the officer’s questions.  If you have a suspicion that you are not free to leave and an officer is asking you questions, it is not because you are a witness.

Witnesses are free to talk to the police or not – they can leave at any time.  If you are not free to go and you are being questioned, you are a suspect and the questioning, whether it seems like it or not, is actually an interrogation.  In the context of an interrogation, one thing TV consistently gets right is, “anything you say can and will be used against you in a court of law.”  So ask for a lawyer and do not say anything else.

If you are under investigation, or have been arrested by any law enforcement agency, feel free to contact one of our experienced Criminal Defense Attorneys, for a free initial consultation about your legal rights and possible defenses.