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Advice/Is this custodial arrest?

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HRZ

Senior Member
#16
Depending on your career choices...even a low level conviction might hurt your options. ....might be smart to use counsel and seek a one of the diversion / no record programs if applicable .

As posted you seem far away from the 10 gram plus issues .as a felony ... ...
 


#17
You had the right to remain silent. You didn't.

Here is a link to the law: http://norml.org/laws/item/missouri-penalties-2

Although possession of marijuana up to 10 grams no longer comes with jail time, a first time offense is still classified as a Class D misdemeanor. This can affect school loans and scholarships.

You should consult with an attorney. Your college may offer legal assistance to students.

Good luck.
I'm mostly wondering what my main defense is? From this site, it seems I could reasonably argue that I was under custodial interrogation due to a few factors. Here's a quote from the site I provided:

Custody Factors
Courts may consider several factors to determine whether an interrogation was custodial. Overall, they try to determine how intimidating, coercive, and compelling the environment was. The questions they weigh include:
  • Who asked the questions? Was it a police officer? A prison guard? Was the questioner in a position of authority? Was he or she carrying a gun? The identity of the questioner goes to the intimidation level of the interview. For example, a court may consider an armed police officer or prison guard more compelling than a postal inspector.
  • How many officers were there? More officers points to a more coercive setting.
  • Who else was there? A court may find a situation less coercive if the suspect is surrounded by friends or family.
  • Who initiated the discussion? A suspect walking up to an officer and asking questions suggests a non-custodial situation.
  • Did the officer tell the suspect the interview was voluntary? If so, a court is more likely to consider the interview non-custodial.
  • Where did the questioning take place? Was it at the police station? The suspect’s house? On the street? In a hospital room? The issue is how familiar or coercive the setting is to the suspect. An interview at a police station, for example, would likely be more intimidating than one on a sidewalk.
  • Did the officer use any force on the suspect? If an officer used force prior to or during the questioning, a court may consider it a custodial situation.
  • Did the officer use any physical restraints? Was the suspect able to move around? Restriction of movement supports a finding of custody.
  • What time was it when the conversation took place? Was it the middle of the night? Or during the day? An interview at an odd hour may point to custody.
  • How long did the questioning last? Longer interviews lean toward a finding of custody.
  • What was the style of the interview? Were the questions accusatory or routine? An interviewer accusing the suspect of certain acts in a threatening manner may indicate a custodial situation.
  • Was the suspect free to leave at the end of the conversation? A “yes” answer tends to suggest that the suspect wasn’t in custody.
  • And my answers are:

  • Who asked the questions? A police officer
  • How many officers were there? There was only one
  • Who else was there? I had one friend there but he dismissed him very early.
  • Who initiated the discussion? The police officer asked to speak to me.
  • Did the officer tell the suspect the interview was voluntary? No.
  • Where did the questioning take place? He stopped me in a stairwell. To be clear he stood in front of the exit that led outside, effectively blocking us from leaving. If I had tried to leave the situation, the officer would have kept following me like he had for the last 20+ minutes.
  • Did the officer use any force on the suspect? The officer handcuffed me after he searched my bag and told me I was under arrest.
  • Did the officer use any physical restraints? Handcuffs.
  • What time was it when the conversation took place? It was 3 am.
  • How long did the questioning last? Longer than 10 minutes.
  • What was the style of the interview? Were the questions accusatory or routine? He said he knew we we're smoking because he could smell it.
  • Was the suspect free to leave at the end of the conversation? No.
Furthermore,

The United States Supreme Court has clarified that a person is being subjected to a custodial interrogation if "a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave."
I did not feel I could leave. The officer had followed me for nearly half an hour and then stopped me so he could "talk" to me. If I left, the officer would have either continued to follow me or would've used force.
 

quincy

Senior Member
#19
I'm mostly wondering what my main defense is? From this site, it seems I could reasonably argue that I was under custodial interrogation due to a few factors. Here's a quote from the site I provided:

  • And my answers are:

  • Who asked the questions? A police officer
  • How many officers were there? There was only one
  • Who else was there? I had one friend there but he dismissed him very early.
  • Who initiated the discussion? The police officer asked to speak to me.
  • Did the officer tell the suspect the interview was voluntary? No.
  • Where did the questioning take place? He stopped me in a stairwell. To be clear he stood in front of the exit that led outside, effectively blocking us from leaving. If I had tried to leave the situation, the officer would have kept following me like he had for the last 20+ minutes.
  • Did the officer use any force on the suspect? The officer handcuffed me after he searched my bag and told me I was under arrest.
  • Did the officer use any physical restraints? Handcuffs.
  • What time was it when the conversation took place? It was 3 am.
  • How long did the questioning last? Longer than 10 minutes.
  • What was the style of the interview? Were the questions accusatory or routine? He said he knew we we're smoking because he could smell it.
  • Was the suspect free to leave at the end of the conversation? No.
Furthermore,



I did not feel I could leave. The officer had followed me for nearly half an hour and then stopped me so he could "talk" to me. If I left, the officer would have either continued to follow me or would've used force.
You didn't try to leave through the main door.

The officer probably would have stepped aside or let you follow your friend up the stairs if you had asked or tried to do either.

You told the officer all he needed to know and you let him search your bag.

You did what many people do when stopped by the police. Most people are unaware of their rights so they don't assert them.

Here is a link that briefly covers your rights when stopped by the police, from Missouri's ACLU: https://www.aclu-mo.org/en/node/197

And here is a link to a video that might have helped you if you had watched it prior to your police encounter. Keep the advice offered in the "Don't Talk to the Police" video in mind for the future:

I don't see a good defense in what you have described but the Missouri attorney you see might be able to fashion one for you.

Good luck.
 
Last edited:
#20
Being "In custody" is a legal polymath of back and forth case law. Miranda is only required if that dept. wishes it's officer's to recite them at any encounter/arrest.
 
#27
You didn't try to leave through the main door.

The officer probably would have stepped aside or let you follow your friend up the stairs if you had asked or tried to do either.

You told the officer all he needed to know and you let him search your bag.

You did what many people do when stopped by the police. Most people are unaware of their rights so they don't assert them.

Here is a link that briefly covers your rights when stopped by the police, from Missouri's ACLU: https://www.aclu-mo.org/en/node/197

And here is a link to a video that might have helped you if you had watched it prior to your police encounter. Keep the advice offered in the "Don't Talk to the Police" video in mind for the future:

I don't see a good defense in what you have described but the Missouri attorney you see might be able to fashion one for you.

Good luck.
I can’t afford a lawyer and will be getting a public defender. But in all honesty, am I screwed here?
 

quincy

Senior Member
#29
I can’t afford a lawyer and will be getting a public defender. But in all honesty, am I screwed here?
Are you screwed? Possibly not.

If this is your first offense, you could be offered a diversion program which can keep the drug offense from making a mess of your criminal record.

If your attorney cannot find anything wrong with the stop and search that can get the charges dismissed, the attorney will then work to get you into the drug program.

Good luck.
 
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