Detained without arrest? Proper terms...

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I've seen cop shows where the police don't actually arrest people, but make them believe that they have to stay in the police station. I'm interested using this with my characters - the goal of the scene is to show that my MC has grown up and will assert herself by insisting that they no longer be held. But I'm not sure if this is possible.

The scenario as it stands: Montana, present day: A Sheriff, his Deputy, a suspected (but not proven) drug dealer and a model citizen were attached by a group of bad guys. The Sheriff is killed, the other three manage to gun down a bunch of the badies and then escape. They make it to safety, call the relevant people to report the situation, AND to report that the Sheriff and a DEA agent were corrupt and working with drug dealers.

The shootout happens early morning, but they're way off in the bush, so they probably don't get face time with cops (I believe the FBI would investigate the corrupt sheriff - do they also investigate corrupt DEA agents?) until late morning or early afternoon. I have them being taken to the Sheriff's office and taken to separate interrogation rooms for questioning.

By midnight, they're still there, and I want my MC to assert herself and insist that they be allowed to get some rest. Right now, I've got the feds saying things like "Why don't you want to cooperate? Do you have something to hide?" to get her to stay, but I want her to come right out and ask whether she's legally required to stay.

My questions are:

IS she required to stay? My research is turning up words like 'reasonable', and I don't have a frame of reference to interpret that. All three characters killed at least one of the attackers, if that matters, but I think it should be pretty clear that it was self-defense.

If she IS required to stay, does that mean she's under arrest? And then they can hold her for however long (24 hours?) before charging her? Does the waiting period start when they first see her, or not until she first tries to leave?

Assuming that she is allowed to leave, what's the magic question she needs to ask to make this clear? I'm think it's just "Am I legally required to stay?" but if there's something more formal, that'd be great.

Anything else? Am I totally off base with all this?
 

frimble3

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My research is turning up words like 'reasonable', and I don't have a frame of reference to interpret that. All three characters killed at least one of the attackers, if that matters, but I think it should be pretty clear that it was self-defense.
IANAL, or much up on law, but I think the dead people would matter, and be grounds for keeping all of them in custody. It may be pretty clear to you that it was self-defense, but there were apparently no neutral witnesses, so it's just your characters'opinion that it was self-defense. Which is exactly what they'd say if they were rival drug-dealers, killing off the competition, and that poor, innocent, honest sheriff that tried to stop the massacre.
If I were the local law, nobody'd be going anywhere until the crime-scene stuff was done, there was evidence as to everybody's identities, and the story had been checked completely. And, yeah, I'd try to get the FBI and the DEA involved if it was a small sheriff's office, and not used to this level of violent crime. Especially if the late sheriff was accused of criminal activity - don't want later accusations that the locals were covering for one of their own.
Hopefully actual experts will be along to help with the legal stuff.
 

thothguard51

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If the person is uncooperative, the cops have the right to detain a person on reasonable grounds. They can also arrest the person, take them to the station and after questioning, release them if they so choose. Its happened to a few friends of mine. Got arrested, went to the station and after questioning, were released...
 

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thoth - that's the 'reasonable' that I'm running into. What counts as reasonable?
 

waylander

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What does you story require to happen?
 

thothguard51

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Drugs, open container in a car, underage drinking, fits description of an points bulletin, no ID on person, green card looks fake...

You name it and the cops can put a reasonable cause on just about anything...
 

benbradley

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I recall the phrase "person of interest" when the police don't have enough evidence to arrest someone, or the person is allegedly "not a suspect" but the police want very much to talk to that person. Dunno if that helps.
 

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Waylander - as the question says, I want my MC to essentially call the bluff of the police. So I want them to WANT to hold my characters, but not be willing to actually arrest them, or charge them with anything. benbradley, that sounds about right, the 'person of interest', but my question is -- if the person of interest doesn't want to talk, what happens?
 

thothguard51

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if the person of interest doesn't want to talk, what happens?

Nothing much.

If the cops are only questioning the person to gather information and the person does not want to answer questions without a lawyer present then there is not a lot the cops can do.

If the MC does not have a lawyer, the MC can still refuse to answer questions and even demand to either be charged or released. If he is charged and arrested, he/she still gets a chance to make bail...

For the cops, they can always arrest the MC as a way to hold them and then drop charges later. And they can arrest them for just about anything, including impeding an investigation even if they are not the suspect...
 

jclarkdawe

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It's a game of bluff and who blinks first. Even with an attorney.

In your case, they can arrest, or they can declare them a material witness. They can obstruct until an attorney can find a judge that will listen (try that at ten o'clock on a Saturday night). And if the police really want to up the game, they declare it a terrorist activity and invoke the Patriot Act.

There's no way they can force someone to talk without an attorney being present. But they can hold you until they can find an attorney (try that at ten o'clock on a Saturday night). Police know that time is on their side, within limits.

There's no magic words that will cause the police to let you go. In your case, they've got a cop killer. They're not going to let that person go until they're convinced beyond a shadow of a doubt that the cop was dirty.

You're supposed to be brought before a judge within twenty-fours of your arrest, weekends and holidays excepted. Time begins ticking from the time of the arrest. That's one reason the police will stall the arrest.

The shooting of the sheriff will be investigated by the Montana State Police Major Crime units, not the FBI. The FBI might investigate corrupt DEA agents, but only after they wrest jurisdiction from the dead hands of the DEA or someone in Justice rules otherwise. The US Attorney for Montana and the Montana Attorney General would be involved as well. No one wants to screw up a case like this.

Best of luck,

Jim Clark-Dawe
 

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Thanks, Jim - great info.

Just to clarify - the dead cop was killed by the bad guys. He was corrupt, but he was going to turn himself in and implicate them all, so they killed him, and tried to kill those he told. But, yeah, I can see why a dead cop of any sort is going to make things stickier.

Would the State Police investigate the corruption, as well? I read that the FBI handles gov't corruption, but maybe sheriffs don't count as gov't?

And, finally - in terms of "Time begins ticking from the time of the arrest" - when does it count as an arrest? At first, my character is cooperative, but then starts getting pissed off. Would it count as an arrest as soon as he was in the company of police? As soon as they started questioning him? Or not until he actually tried to leave and was told that he couldn't?

Thanks for any additional help!
 

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Oh, sorry, one more thing. If he's declared a material witness, what are the implications of that? Can he be held indefinitely (like, until the trial for the crime he witnessed)? Or just until enough questions have been answered? Is there any time limit on any of this?

Thanks again.
 

jclarkdawe

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Thanks, Jim - great info.

Just to clarify - the dead cop was killed by the bad guys. He was corrupt, but he was going to turn himself in and implicate them all, so they killed him, and tried to kill those he told. But, yeah, I can see why a dead cop of any sort is going to make things stickier.

Would the State Police investigate the corruption, as well? I read that the FBI handles gov't corruption, but maybe sheriffs don't count as gov't? States usually investigate their own corruption if they can, but the FBI can also. Depends in part on who is first on scene, and in part who has the biggest set of balls. Feds in theory trump, but not always. It can be a fun turf war. Sheriffs are a part of county government.

And, finally - in terms of "Time begins ticking from the time of the arrest" - when does it count as an arrest? At first, my character is cooperative, but then starts getting pissed off. Would it count as an arrest as soon as he was in the company of police? As soon as they started questioning him? Or not until he actually tried to leave and was told that he couldn't? This is always a fun question. Police argue that it occurs when the police formally arrest the person. I argue it's from when the person believes he or she is detained. Judges go both way, depending upon the facts. You are 'detained' by the police when a reasonable person would believe that they are not able to leave. This can involve being cuffed, or being locked in a cruiser, or held in an interview room. It may not. Bottom line is the issue just gives some screaming practice for the attorney and a good show in court. It is more relevant to suppressing statements made by a defendant.

Thanks for any additional help!

Oh, sorry, one more thing. If he's declared a material witness, what are the implications of that? Can he be held indefinitely (like, until the trial for the crime he witnessed)? Or just until enough questions have been answered? Is there any time limit on any of this? Material witnesses can be held until they give a statement. After a significant amount of time (like weeks, months), you can get sprung. You have to convince a judge that no matter how long the person is held, they will never give a statement.

Thanks again.

None of this is an exact science. The facts of each case are different.

Best of luck,

Jim Clark-Dawe