You're stopped by an officer. You ask "Am I being detained?"

[Yentl Marmelstein]

For the purposes of this discussion, assume that you're on foot, open carrying.

In another situation, assume you're driving.

If the officer says "yes, you're being detained", what next?

If you're being detained, are you required to be Mirandized?

What, at this point, are your obligations and at what point in the detention phase are you free to leave?

Thanks.

[King 5.45]

http://www.expertlaw.com/library/cri...ice_stops.html

[gnbrotz]

If notified that I am being detained:

On foot, I will notify the officer that I will not be answering ANY questions without my attorney present. I will not present any form of ID or LTCF, and I will not have them on my person, so a frisk/search of my person will not make them available either. I will not consent to a search of my person. I will not consent to any seizure of my property.

In a vehicle, I will notify the officer that I will not be answering ANY questions without my attorney present. I will present required documents upon request, including operator's license, vehicle registration, proof of insurance, and LTCF if the officer is aware of my firearm and requests my LTCF. I will not notify of the presence of firearms, and will not voluntarily provide my LTCF if it has not been requested. I will not consent to a search of my person or vehicle. I will not consent to any seizure of my property.

I do not believe Miranda comes into play unless/until you are arrested, but this does not mean the right to remain silent does not exist preceding the formal notification. You can be detained for investigation for a "reasonable" period of time, at which point you must either be released or arrested/cited/charged. There is no bright line definition of how long a "reasonable" period of time is.

IANAL

[1713]

If the words "You have the right to remain silent" aren't uttered in a dramatic tone while the handcuffs are being applied then anything uncovered during the investigation will be suppressed and the arrestee will be promptly released.

[gnbrotz]

If the words "You have the right to remain silent" aren't uttered in a dramatic tone while the handcuffs are being applied then anything uncovered during the investigation will be suppressed and the arrestee will be promptly released.

I don't think so. How would a failure to Mirandize lead to the suppression of evidence obtained through (lawful) methods other than verbalization made by the suspect?

The judge isn't going to throw out drugs found incident to a search just because the suspect wasn't read his right to remain silent if they weren't found because of something the suspect said.

[1713]

I don't think so. How would a failure to Mirandize lead to the suppression of evidence obtained through (lawful) methods other than verbalization made by the suspect?

The judge isn't going to throw out drugs found incident to a search just because the suspect wasn't read his right to remain silent if they weren't found because of something the suspect said.

The sarcasm I had in my head while typing that didn't come through the post. I was kidding, of course.

[gnbrotz]

The sarcasm I had in my head while typing that didn't come through the post. I was kidding, of course.

Well for Pete's sake, throw in a freakin' smiley or something!

[t1m0thy]

I do not believe Miranda comes into play unless/until you are arrested, but this does not mean the right to remain silent does not exist preceding the formal notification. You can be detained for investigation for a "reasonable" period of time, at which point you must either be released or arrested/cited/charged. There is no bright line definition of how long a "reasonable" period of time is.

IANAL

That point right there needs emphasis. A lot of people think that your 5th amendment rights start when they read you your rights. They exist at all times and it is wise to utilize them in any encounter with police before it gets to a point where you are arrested. They can easily use statements prior to arresting you to justify an arrest or the all encompassing DC charge. Its best to just keep that mouth shut...and believe me I am speaking from personal experience.

About 8 or 9 years ago I was at my parents house and one of my brother's friends who was quite a smartass decided to make some derogatory comments about my girlfriend at the time. I shoved him and he shoved me and we scuffled a bit and when it was over we cooled off and were both fine. Neighbor calls the cops...I(like a dummy) tell them what happened and they demand my ID. I didn't have it on me and I said I would verbally identify myself but I don't have my ID with me. They threatened to charge me with a misdemeanor and take me in cuffs to the station. I finally went to my car and got my DL. They then charged both of us with DC and disturbing the peace altogether about 700 dollars in fines. Important thing to remember is that neither of us had a complaint against each other and we both told the cops it was cool. Now if they had showed up and I had just followed what gnbrotz posted above they would have no ammo to back up their charges. I handed them the tools to fuck me over. I learned my lesson the hard way to NEVER trust a cop and voluntarily give them any information not required by law.

[MDJschool]

For the purposes of this discussion, assume that you're on foot, open carrying.
[...]
If the officer says "yes, you're being detained", what next?
[...]
What, at this point, are your obligations and at what point in the detention phase are you free to leave?

Remember that colloquialism that 'cops can lie'? What reason is there to believe that they would tell you the truth about being detained? Being detained is when a reasonable person would not feel free to leave (ignoring for this moment the question of when 'detainment' becomes 'arrest' or 'custody'). If you don't have any entanglements (i.e. cops have your property, custody of someone under your care, etc.) just walk away. They'll touch you and at that point you can be certain that you are then detained. I say this because I watch these ridiculous videos where some party asks if they're being detained so many times it seems gratuitous.

Slowly walking away isn't going to jeopardize their investigation or recklessly cause an officer to come to harm in attempt to apprehend. Anyone who has a statute to the contrary ought to post it. (And again lets not forget that cops can lie.)

Unfortunately I have come across at least one opinion in my time that has said something like 'compliance is consent' and there must be some real showing of resistance to an attempted search or seizure to have it protected by constitution. Cases like those, while against the normal tide of 4A and A1S8 jurisprudence, indicate to me that the stakes in these scenarios need to be upped a bit as to ascertain their true nature.

Leaving the nature of the encounter anomalous only suits the government to abuse the vantage.

[whoshisface]

This is quite simple once you asked if you're being detained. if the officer says no respond by telling him the encounter and conversation is now over. Leave or ignore. Turn around with your back to him if you're in an area you intend to stay in. If he says anything to you repeat that you wish to not converse with him and that if he continues you will call 911 and report harassment and stalking. If that doesn't end it call. At that point if he's dumb enough to continue he's dumb enough to face criminal and civil penalties.