Legal Ease by
Shane Givens
June 28, 2011
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Stops, searches and arrests - Part I Some of the most frequently asked questions I get deal with law enforcement stops and arrests. This week and next, I will answer some of those questions. For simplicity's sake, I use the term “police” to describe any law enforcement officer with the ability to stop, detain, and possibly arrest a suspect. When will the police stop a person? - Generally, they may stop someone for committing a traffic violation, for suspicion of being engaged in criminal activity or to arrest the person for a criminal act. After being stopped by the police, a person will typically be questioned. Can the police stop someone and question them if they are not under arrest? - In short, yes. Upon seeing suspicious activity, the police may perform what is called a “Terry stop” and may temporarily detain a person in order to request that they identify themselves and answer questions. A Terry stop is limited to investigation of the specific suspicious activity; if the police detain a person to question him about additional matters, the stop can turn into an arrest. For their own safety, the police can pat down the subject to search for weapons. During this “frisk” if they feel something that may be a weapon, the officer may remove it from the suspect for further examination. However, generally, police are not entitled to remove items from person's pockets that do not appear to be weapons, even if they believe the items are contraband. When is a person under arrest? - Many people think of an arrest as being a formal declaration by the police stating “you are under arrest,” followed by the reading of their Miranda rights. (As seen on TV: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to represent you.”) Reality is a bit more complicated. An arrest occurs when a person no longer reasonably expects that he is free to leave. A Terry stop is not an arrest, even though the person can't leave during the investigatory questioning. Typically, the detention is of short duration and is limited in scope. (A Terry stop may involve little more than a short series of questions, such as, "What is your name? Where do you live? Why are you here?") However, if a person is not allowed to leave the scene for an extended period of time, the person may be considered to be under arrest even though those words are never used. If a person is handcuffed and locked in the back of a police car, or is otherwise restrained from leaving, the person will ordinarily be considered to be “under arrest”. This column is intended for general information purposes only. The answers to most legal problems rely on specific facts of a particular situation; therefore, it is very important to see a lawyer when these situations arise. Please e-mail questions for future columns to givenslaw@tds.net. |