When is a Person in Police Custody?

Updated on 10/25/2021 / Under

Dealing with law enforcement officials can be scary and confusing, especially if you don't know what's going on or how to behave. Just the presence of law enforcement officers is enough to set some people on edge. Having a basic knowledge of your rights when it comes to dealing with police officers can help you get yourself out of a difficult situation, as can staying calm and quiet. 

The job of law enforcement officers is to protect and serve, but that doesn't always mean they make the right decisions. False arrests, illegal stops, destruction of evidence are all realities that we face as citizens of the United States. But at the end of the day, every person in this country has a right to due process, and we at Ktenas Law are ready to fight for you. 

What are the Different Levels of Police Detainment? 

Just because the police want to speak with you does not mean that you are being detained or placed in police custody. In order to detain someone, or to place someone into police custody or arrest them, police must have reasonable suspicion or evidence that a crime has been committed, there is an ongoing crime or a potential crime. There are three levels of detainment when it comes to the police. As an example, imagine that a gas station has been burglarized and the police stop you to talk to you. 

  • If you do not match the description of the suspect, or if the police do not have reasonable suspicion to believe that you might be involved in the crime in some way, they may stop you to ask if you say anything or have any information
  • If you match the description of the suspect(s), or if the police have reasonable suspicion that you are in someway involved in the crime, they will detain you
  • If the police have evidence that you were involved in the crime, they will place you under arrest. 

Depending on which of these categories you fall into, your rights may differ, but one right will always stay the same. According to the Supreme Court, your right against self-incrimination, the 5th amendment, in unalienable and can never be taken from you. So when in doubt, say nothing. 

I've Been Stopped and the Police are Asking Me Questions

Being stopped by the police does not always mean that you are being detained, the police officers could just be searching for witnesses. If you are unable to tell whether or not you are being detained, all you have to do is ask. If the law enforcement officers tell you that you are not being detained, and you are free to go, then you are free to walk away immediately without another word.

When is a Person in Police Custody?

If you choose to stay and speak to the officers, be aware that you are not required to say anything, you are not required to identify yourself, and you do not have to consent to a search. Unless the police are detaining you or arresting you, you have freedom of movement and are not required to speak to them or answer any of their questions. 

They Said I am not Allowed to Leave

If the officers tell you that you are being detained, this means they have reasonable suspicion that you have committed or are currently committing a crime. The police can only hold a person in custody, or detainment, under reasonable suspicion for a reasonable period of time. This means they cannot hold you for hours, but only long enough to quickly decide whether or not a crime has been committed, or is being committed. This is referred to as a "brief and cursory". 

If you are being detained, also known as a Terry Stop, you should immediately ask why you are being detained. Police officers are required to inform you of the reason for taking away your freedom of action, or the criminal activity they suspect you of. If they are not able to provide articulable suspicion as to why you are being detained, you should ask them again if you are allowed to leave.

If they are able to articulate a reason for your detainment, you are still protected by your right to stay silent. Simply inform the police that you wish to remain silent, and then do so. You may be required to provide your identification to the police, even if you are only being detained, but you are not required to speak or to sign anything without the legal advice of your criminal defense lawyer.

If your detainment takes an unreasonable amount of time, or if police actions would lead a reasonable person to believe they are under arrest, such as being handcuffed or given any other kind of forcible restraint, and/or placed in a cop car, this may legally be considered an arrest in a court of law. The amount of force used, as well as the amount of officers present, may also lead a reasonable person, and a jury, to believe that the suspect had been placed under arrest. If this happens, evidence gathered and anything said may be inadmissible in court due to the suspect not being read their rights. 

Learn More: Benefits of a Lawyer Over a Public Defender

The state of Illinois has "stop-and-frisk" laws. This means that if you are being detained, and police officers have a reasonable suspicion that you are in possession of a weapon, they are allowed to pat you down outside of your clothes in search of a weapon. If the officer does not reasonably feel he is in danger, he is not allowed to frisk you. This frisking should be outside of the clothes, and officers can only reach into jackets or pockets, etc, if they feel a weapon, and only in order to remove that weapon. 

Stop-and-Frisk laws are not applicable towards motor vehicles, or bags or boxes. Police do not have the legal authority to perform a search outside of a bodily frisk for weapons without a warrant, an arrest, permission, or probable cause. Police officers are also not allowed to use their position of authority to pressure you into agreeing to a search. 

If you have been stopped and frisked by the police, they are required to fill out a receipt of this frisking, as well as file paperwork at the police station explaining why they frisked you and what they found. If you feel as though your stop-and-frisk was unreasonable, contact a criminal defense attorney immediately. 

I was Placed Under Arrest

If you are fully taken into legal custody or arrested, you may be placed in physical restraint, such as handcuffs, and you will be taken to the police station.

In Illinois, police officers can hold you in legal custody at the police station for up to 48 hours before charging you with criminal charges. A majority of arrests are warranted arrests, but if you are arrested after a Terry Stop, this is called a warrantless arrest.

When is a Person considered to be in Police Custody?

While in this legal custody, police have two days to prove to a judge that your arrest was warranted so that you can be charged. If you have not been charged with a crime after 48 hours of temporary detention, and placed under formal arrest, they must release you. There are many reasons why someone may be released after being taken into legal custody, from lack of evidence to 

If you are charged with a crime, you will be held in police custody until you are released on bail, or until your time is court is complete. You will be allowed to contact your attorney, and you should not speak to the police without your attorney present. 

What are My Rights if I've Been Arrested?

If you are being officially taken into legal custody, you will be read your Miranda rights. These are as follows:

  • You have the right to an attorney. You can hire your own or ask for a court appointed lawyer.
  • Anything you say can and will be used against you in a court of law
  • Your attorney can be present at any and all questioning

Unless you invoke your right to hire an attorney or accept a court-appointed lawyer, you may find yourself subject to excessive interrogations. If police continue to attempt to question you after you have asked for your attorney and expressed that you do not wish to answer questions, this is a violation of your 5th amendment rights and you should inform your attorney immediately. 

Related: Know Your Rights After an Arrest

Give Our Attorneys a Call 

No matter the reason for your detainment or arrest, having an experienced lawyer on your side is the way to go. At Ktenas Law, we take every client and their individual situations seriously. Whether you're facing civil charges, criminal charges for illegal activities, or need help filing a complaint against an officer for an illegal search, illegal stop, or even illegal police interrogations, we've seen it all and we're ready to get you on the right path to justice. 

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