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Handcuffed w/o arrest?

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nihilus13

Junior Member
Can you be handcuffed in the state of Colorado if you are not under arrest, have not been mirandized, and have not been charged with anything? I had to be taken to the police station to do a breathalyzer because the field one was broken so they handcuffed me without any charges and shoved me in the back of the car. Then that machine was broken too so they handcuffed me again and shoved me in the back of the car and took me to get my blood drawn. Is that legal?
 


mycarlb

Member
The police officer can hancuff you for their own protection, and also be aware that they have up to 72 hours (in most states) to charge you with a crime. You don't need to be mirandized unless you are being asked questions... Were you ultimately charged with anything?
 

grasmicc

Member
This all turns on whether they had prob. cause to arrest you, which is what happened even though you aren't framing it that way. You were arrested then released.

I suspect that they had pretty good reason to believe you were drunk, no?
 

Son of Slam

Senior Member
nihilus13 said:
Can you be handcuffed in the state of Colorado if you are not under arrest, have not been mirandized, and have not been charged with anything? I had to be taken to the police station to do a breathalyzer because the field one was broken so they handcuffed me without any charges and shoved me in the back of the car. Then that machine was broken too so they handcuffed me again and shoved me in the back of the car and took me to get my blood drawn. Is that legal?

Yes and yes, and why would you think not?


*
 

seniorjudge

Senior Member
nihilus13 said:
Can you be handcuffed in the state of Colorado if you are not under arrest, have not been mirandized, and have not been charged with anything? I had to be taken to the police station to do a breathalyzer because the field one was broken so they handcuffed me without any charges and shoved me in the back of the car. Then that machine was broken too so they handcuffed me again and shoved me in the back of the car and took me to get my blood drawn. Is that legal?
You were arrested.
 

seniorjudge

Senior Member
In American criminal law, the primary meaning of the term "arrest" is a seizure or forcible restraint. (This comes from the French arrêt which means, literally, "stop".) When a cop slaps the cuffs on you, you are arrested. It makes no difference if you are hauled down to the station, charges filed against you, etc. But if your movement is stopped by a cop, you are arrested (cuffs or no).

The secondary meaning of the word is the taking or keeping of a person in custody by legal authority, especially in response to a criminal charge.

See Black's Law Dictionary (Bryan A Garner, Editor in chief) under "arrest."
 

JETX

Senior Member
seniorjudge said:
In American criminal law, the primary meaning of the term "arrest" is a seizure or forcible restraint. (This comes from the French arrêt which means, literally, "stop".) When a cop slaps the cuffs on you, you are arrested. It makes no difference if you are hauled down to the station, charges filed against you, etc. But if your movement is stopped by a cop, you are arrested (cuffs or no).

The secondary meaning of the word is the taking or keeping of a person in custody by legal authority, especially in response to a criminal charge.

See Black's Law Dictionary (Bryan A Garner, Editor in chief) under "arrest."
Sorry, but NOT true.
I have 'detained and cuffed' numerous individuals, usually for the officers safety, and released them upon further investigation. No arrest.
It is also very common to handcuff ALL individuals in a property at the time of serving a warrant... and then releasing those that are not arrested.

Kansas v Wilson:
On December 18, 1999, Wilson was at a friend's home when police presented a search warrant on the residence. Although the warrant permitted officers to search for cocaine and drug paraphernalia, the warrant did not authorize the search of all persons present at the home. Upon entering the residence, officers told the occupants of the house to get down on the floor. Wilson complied and was handcuffed.

Officer James Bray testified that after the house was secured, he turned his attention to Wilson. Officer Bray questioned Wilson without advising him of his Miranda rights. When Officer Bray asked Wilson his name, Wilson told him and indicated that he had identification in his pants pocket. Without asking permission to remove the identification, Bray reached into Wilson's pocket and retrieved the identification card. The officer then gave Wilson's identification card to another officer to check for outstanding warrants.

Officer Bray continued his interrogation of Wilson by asking him if he had any drugs on him, which Wilson denied. After Wilson denied possessing drugs, Bray asked Wilson if he could search him. Officer Bray testified that Wilson replied, "[Y]ou've got me in handcuffs, you can do whatever you want." Officer Bray testified that he informed Wilson as follows:

"After that I explained to him that, no, that wasn't necessarily true, that it was entirely--my exact words were, it was entirely up to him whether or not I searched him. Then I explained to him that he wasn't under arrest at that time, but that everybody in the house would be detained until we secured the house and had taken control of the residence."

http://accesskansas.org/kbi/PDF/court/RCD200223.pdf
 

seniorjudge

Senior Member
Here is an example of the primary definition of arrest: "I have 'detained and cuffed' numerous individuals, usually for the officers safety, and released them upon further investigation."

The following is an example of the secondary definition: "After that I explained to him that, no, that wasn't necessarily true, that it was entirely--my exact words were, it was entirely up to him whether or not I searched him. Then I explained to him that he wasn't under arrest at that time, but that everybody in the house would be detained until we secured the house and had taken control of the residence."


Here are some legal definitions (of the primary definition):

Arrest - To deprive a person of his liberty by legal authority.
http://www.courts.state.va.us/glossary_of_court_terms.html


Arrest - The seizing of a person and detaining him/her in custody by lawful authority.
http://www.state.tn.us/correction/criminaljustice/glossary.htm

etc. ad infinitum
 

JETX

Senior Member
Clearly, the concept of 'protective detention without arrest' is beyond your comprehension...
Your continued 'definitions' do not apply as they are describing the ARREST.... not the detention WITHOUT arrest.
 

seniorjudge

Senior Member
JETX, after you get through correcting Mr. Garner, you should notify the Washington State Bar that they are wrong also:

Criminal Law

...

Definition of an Arrest

You are under arrest if a law enforcement officer (or sometimes a private citizen) takes you into "custody." This means that you believe you are not free to walk away from the scene of the contact with the officer. (Emphasis supplied.)

Not every stop by a police officer means you are under arrest. If stopped only for a short time, then you may have been "detained," rather than legally arrested.

A warrant generally is not required to make an arrest if there is probable cause to believe the person arrested has committed a felony. Also, a warrant may not be required when a misdemeanor was committed in the presence of the arresting officer, or in certain misdemeanors, outside his or her presence.

...

http://www.wsba.org/media/publications/pamphlets/criminal.htm
 

CdwJava

Senior Member
Gentlemen,

I think you argue something that is very fact dependent and not necessarily subject to broad-brush definition.

In general, in my state, transporting a person from the scene of the stop to the jail or other facility for purposes of obtaining a breath test would definitiely be considered an "arrest" for purposes of Miranda. However, should the breath test reveal a BAC of beneath .08 and other factors that might come to light during the transport and test indicate that the person was NOT DUI in some way, he could be released per our PC 849 and the "arrest" ruled a "detention" instead.

Arrests are subject to certain state definitions as well. While Atwater ((2001) 121 S.Ct. 1536) said that a custodial arrest was permissable for even minor offenses, a lawful arrest must still meet the legal definition of that state. In my state, not all crimes (such as traffic infractions and even some misdemeanors) can meet that requirement. The same may be true in other states.

In the case in question I would think that for Miranda purposes the original poster was under arrest. For other purposes it woul ddepend on the circumstances and state law ... and the purpose in question (liability for injury, vehicle impound inventory (search), etc.).

Just my two cents' worth.

- Carl
 

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