Understanding Arrest, Custody and “Investigative Detentions” General Principles
By Colorado Criminal Defense Lawyer for the Protection of Individual Rights – H. Michael Steinberg
Introduction – The Fundamentals of Investigative Detentions – What Can The Police Do When They Stop Me For As Part Of An Investigation?
What is an Investigative Detention?
“Investigative detention” defined: An investigative detention is a temporary seizure of a suspect for the purpose of determining:
(1) if there is probable cause to arrest,
(2) if further investigation is necessary,
or (3) if the officers’ suspicions were unfounded.
Summary of requirements:
There are three requirements for conducting detentions:
(1) Reasonable suspicion: Officers must have had reasonable suspicion to detain.
(2) Scope of detention: Although the scope of the detention may expand as the result of changed circumstances, the initial scope must be limited to maintaining officer safety and investigating the circumstances upon which reasonable suspicion was based.
(3) Utilize reasonable means: Even if the scope of the officers’ investigation was properly focused, a detention may be invalidated if they did not pursue their objectives in a reasonable manner; e.g., officers investigated matters for which reasonable suspicion did not exist.
Detentions vs. de facto (actual) arrests
If a detention is deemed a de facto arrest, it becomes unlawful unless the officers had probable cause.
Defined: A detention will be deemed a de facto arrest if any of the following occurred:
Unnecessary officer-safety precautions: Officer-safety precautions were unnecessary or excessive.
Unduly prolonged: The detention was unduly prolonged.
Unnecessary transport: The detainee was unnecessarily transported to another location.
Misleading terminology: The term “de facto arrest” may be misleading because it might be interpreted to mean that an arrest results whenever officers take action that is more consistent with an arrest than a detention, such as handcuffing the detainee. As discussed below, however, such actions will not convert a detention into an arrest unless they were unnecessary under the circumstances.
Detentions based on reasonable suspicion plus:
Some courts have permitted detentions that had just reached the level of a de facto arrest where the level of suspicion had almost reached probable cause.
Other types of detentions
Traffic stops: A traffic stop is a car stop that is based on probable cause or reasonable suspicion that the driver committed a traffic infraction.
A special needs detentio: is a temporary seizure of a person for a non-investigative purpose.
Detentions pending issuance of search warrant:
Detentions of property: Officers may “detain” (temporarily seize) property for a reasonable time if there is reasonable suspicion to believe it is evidence or that it contains evidence; e.g., officers detained a suitcase while seeking a warrant to search it.
Detentions of mail: Mail may be detained without reasonable suspicion if the detention did not significantly interfere with its timely delivery.
Detentions for parking violations: If officers have grounds to cite a driver for a parking violation, they may detain him for the purpose of issuing a citation.
When a Suspect Is “Detained”
“Free to terminate” test: An encounter is deemed a detention if a reasonable innocent person in the suspect’s position would not have felt free “to decline the officers’ requests or otherwise terminate the encounter.”
Vehicle passengers: The passengers in a stopped car will be deemed “detained” even if a reasonable person in their position would have felt free to leave. This is because officers have the authority to restrict their movements for officer-safety purposes.
Suspect fled: Although a fleeing suspect or a suspect who otherwise refuses to comply with an officer’s instructions would not feel free to terminate the encounter, a detention will not result until he submits or is apprehended.
Examples: A seizure would not result if the suspect did any of the following:
Foot pursuit: Suspect ran when officers ordered him to stop.
Vehicle pursuit: Suspect led officers on a car chase.
Suspect kept walking: Suspect kept walking after being ordered to stop.
Suspect submitted, then fled: The suspect initially submitted but then ran or refused to submit or comply with the officers’ commands.
Suspect discarded evidence: Because a fleeing suspect is not detained, evidence he discards while in flight will not be suppressed on grounds that officers lacked grounds to detain him.
Flight providing grounds to detain: Although flight will not automatically provide officers with grounds to detain, it is such a suspicious circumstance that not much more is required. See
Detention Procedure: Detentions must be conducted in a reasonable manner, as follows:
No “least intrusive means” test: In the past, some courts would rule that a de facto arrest resulted if officers failed to employ the least intrusive means of pursuing their objectives.
The “least intrusive means” test has been abrogated. Instead, a detention may be invalidated only if the officers were negligent in failing to discern and implement a less intrusive alternative.
Common sense: The circumstances are evaluated by applying common sense, not hypertechnical analysis.
No unrealistic second-guessing: In determining whether the officers conducted a detention in a reasonable manner, a court must not engage in unrealistic second-guessing.
This is because most detentions are swiftly developing, and because a “creative” judge “can almost always imagine some alternative means by which the objectives of the police might have been accomplished.”
Training and experience: A court may consider the officers’ interpretation of the circumstances in light of their training and experience.
Totality of circumstances: In determining whether the officers acted in a reasonable manner, the courts will consider the totality of circumstances surrounding the detention.
Using force to detain: The use of force to effect a detention will not transform it into a de facto arrest if the force was reasonably necessary.
Relevant circumstances: Relevant circumstances include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting or attempting to evade arrest by flight.
Officer-safety Precautions and Fundamentals
“Unquestioned command”: Officers are authorized to take “unquestioned command” of detentions.
Reasonably necessary precautions: Officers may utilize whatever officer-safety precautions are reasonably necessary under the circumstances.
Detentions are dangerous: In determining whether officer-safety precautions were reasonably necessary, the courts may consider that an officer who is detaining a suspect is “particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a quick decision as to how to protect himself and others from possible danger.”
Loosening restrictions: In the past, it was sometimes argued that most officer-safety precautions were too closely associated with arrests to be justified by anything less than probable cause. But changes in our culture, especially the prevalence of weapons and violence among the criminal element, have made these arguments untenable.
Keep hands in sight: Officers may order the detainee to remove his hands from his pockets and otherwise keep his hands in sight.
Put hands on dash: Officers may order the occupants of a stopped vehicle to put their hands on the dash.
Lie on the ground: Commanding a detainee to lie on the ground is much more intrusive than merely ordering him to stand or sit on the curb or some other location. Consequently, such a precaution is permitted only if it was warranted under the circumstances.
Pat searching: Officers may pat search a detainee if they reasonably believed he was armed or dangerous.
Although handcuffing often “minimizes the risk of harm to both officers and occupants,” officers may not handcuff detainees as a matter or routine. Good cause required: Handcuffing is permitted only if there was good cause.
Examples of good cause. Handcuffing after pat search: Because pat searches are fallible, handcuffing will not be invalidated merely because a weapon was not found during an earlier pat down.
Telling detainee he is not under arrest: In close cases it is relevant that the officers told the detainee that, despite the handcuffs, he was not under arrest and that the handcuffs were only a temporary measure for everyone’s safety.
Tight handcuffs: Handcuffs must not be applied more tightly than necessary.
Duration: Handcuffs must not be applied for an unreasonable length of time.
Gunpoint: Although a detention at gunpoint is a strong indication that the detainee was under arrest, the courts have consistently ruled that such a safety measure will not convert a detention into a de facto arrest if (1) the precaution was reasonably necessary, and (2) the weapon was re-holstered after it was safe to do so.
Felony car stops
Based on probable cause: When officers utilize felony car stop procedures, they usually have probable cause to arrest one or more of the occupants for a serious crime. If so, it would be irrelevant that the detention had been converted into a de facto arrest. Based on reasonable suspicion: If officers have only reasonable suspicion, a felony stop is permissible if they reasonably believed that the occupants were armed or that they otherwise presented a substantial threat.
Warrant checks: Because a detainee who is wanted on an arrest warrant necessarily poses an increased threat to officers, warrant checks are permitted if they do not unduly prolong the detention.
Open the door: If necessary, officers may open the door of a stopped vehicle to briefly view the occupants, and they may use a flashlight or spotlight to illuminate the interior.
Protective car searches: Officers may search the passenger compartment for weapons if they reasonably believed that a weapon—even a “legal” weapon—was located there.
Controlling detainee’s movements: Throughout the course of detentions and traffic stops, officers may control the movements of the detainee and, in the case of car stops, any other occupants of the vehicle. This is permitted because (1) it helps enable officers to conduct the detention in an orderly manner, and (2) it is a minimally-intrusive officer-safety measure.
Get out / Stay inside: If the detainee was an occupant of a vehicle, officers may order him and any other occupants to remain inside, exit the vehicle or, if the occupant had already exited, to get back inside.
Sit or stand in a certain place: Officers may order the detainee and his companions to sit in a certain place; e.g., on the ground, on the curb, on the push bar of a patrol car.
Lie on the ground: See Officer-safety precautions (Lie on the ground), above.
Separate detainees: If officers have detained two or more suspects, they may separate them for officer-safety purposes and to ensure that the answers by one of the detainees will not influence the others.
Confine in patrol car: A detainee may be confined inside a patrol car if there was reason to do so; e.g., the detention will be prolonged, detainee was rowdy, officers needed to focus their attention on another matter.
Identifying the detainee: Officers may take steps to obtain “satisfactory” identification from the detainee, and to confirm his identity.
Although detainees are not free to leave, ordinary detentions are not “custodial” for Miranda purposes because the circumstances do not generate the degree of compulsion to speak that the Miranda procedure was designed to alleviate.
Not required to answer: Detainees are not required to answer investigative questions.
Questions pertaining to officer safety: Officers may ask questions that are reasonably necessary for their safety if the questioning was brief and to the point.
Weapons? Parole? Officers may ask the detainee if he possesses any weapons, or if he is on probation or parole.
Drugs? Asking the detainee if he possesses drugs would seem to be relevant to officer safety because of the close connection between drugs and weapons, and because drug users tend to be unpredictable.
Off-topic questioning: Questioning about matters that do not pertain directly to officer safety or the crime under investigation will not invalidate a detention so long as the questioning did not extend the detention.
Warrant checks: Officers may run a warrant check on the detainee because (1) warrant checks further the public interest in apprehending wanted suspects, and (2) they further officer safety as officers will be better able to determine if the detainee is apt to resist.
Delays: Although a detention may be invalidated if there was an unreasonable delay in obtaining warrant information, a more lengthy delay is permitted if officers had obtained preliminary information that a warrant was outstanding.
Transporting the detainee
A detention ordinarily becomes a de facto arrest if the detainee was transported from the scene of the detention; e.g., to the crime scene, the police station. This is because the act of moving the detainee to another location is much more akin to an arrest than a detention, plus there are usually less intrusive means of accomplishing the officer’s objective.
Consent: A detainee may consent to be driven somewhere. The requirements are essentially the same as those for consent searches.
Good cause: Transporting the detainee is permissible if there was probable cause to believe it was necessary; e.g., a hostile crowd had gathered; a showup was needed but the victim was injured at the crime scene.
Short trip: There is authority for transporting a detainee a short distance if it would help resolve the investigation.
Consent searches: Officers may seek the detainee’s consent to search.
Field contact cards: Officers may briefly prolong a detention to complete a field contact card.
Warrant for fingerprinting? The U.S. Supreme Court has indicated that, if the above requirements are met, a judge might issue a warrant—based on reasonable suspicion— authorizing the removal of the detainee to a police station for fingerprinting.
Photographing the detainee
Consensual: The detainee may be photographed if he consented.
Nonconsensual: We are not aware of any cases in which the court ruled on whether a detainee could be photographed if he did not consent. But because taking a photo is, if anything, less intrusive than taking fingerprints, it is likely that this procedure is lawful if, as with fingerprinting, (1) the officers reasonably believed that the photo would confirm or dispel their suspicion, and (2) the procedure did not unduly prolong the detention.
Search for discarded evidence:
If officers reasonably believed that the detainee had discarded evidence before he was stopped, they may prolong the detention for a reasonable time to search for it.
Obtaining information from others:
In attempting to confirm or dispel their suspicions, officers may need to speak with victims, witnesses, dispatchers, or other officers by phone or radio; e.g., to verify information furnished by the detainee or to determine whether property in the detainee’s possession had been reported stolen. A delay for this purpose is permissible if officers were diligent.
Terminating the detention:
Officers must permit the detainee to leave within a reasonable time after (1) they determine that grounds for the detention did not exist; (2) they determine that further detention would be unlikely to confirm or dispel their suspicions; or (3) in the case of traffic stops, when they have issued a citation or warning.
Converting Detentions Into Contacts:
Officers may be able to eliminate the time and scope of these limitations on detentions by converting them into contacts. To do so, they must make it clear to the suspect that he is now free to go, as follows:
Return documents: All documents and property obtained from the suspect must be returned to him.
“Free to go”: Although not technically a requirement,100 officers should tell the suspect that he may leave.
Conflicting circumstances: Telling a suspect that he is free to go will have little significance if there were other circumstances that reasonably indicated he could not leave.
Officers’ candor: The courts sometimes note whether the officers explained to the suspect why they wanted to talk with him, why they were seeking consent to search, or why they wanted to run a warrant check, and so forth. These explanations may help convert the detention into a contact because such openness is more consistent with a contact than a detention, and it would indicate to the suspect that the officers were seeking his voluntary cooperation.