Things You Should Know About: Being Detained by the Police in the United States!
Hey, have a long-ass post about how The System âworksâ. Just a fun little trivia post, a thought experiment with you as a hypothetical police detainee, to take everyoneâs mind off recent events. And since thatâs just...so fun, please consider reblogging this so we can share the fun around!
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...So anyway, buckle up, folks; I wouldnât call this an exhaustive guide to knowing and protecting your rights in police custody, but itâs still gonna be a long one. Under the cut, Iâll be going over:
how to know when youâre considered by law to be in police custody
your rights against self-incrimination, when they must be read to you, what happens when they arenât read to you, and when the cops can get away with that
legal representation (which you always want) as well as how and when (always) to acquire it (the answer is always)
what police can and cannot do in an interrogation per the law
resources for pursuing legal information and/or aid, especially useful for before youâre taken into custody or after youâve been either convicted or released
A reminder before clicking any links Iâve provided that your data is never safe, and if the state gets hold of it, it could be used as evidence against you. While none of the resources Iâve linked to should raise any red flags or be legally considered incriminating, your data is still admissible evidence, and you should always be mindful of that. Better safe than sorry--take steps to secure your data!
What is Police Custody?
Legally speaking, you are in police custody if the police have deprived you of your freedom of action in any significant way. This sounds vague, but thatâs actually good for you! Contrary to popular belief, you do not have to be under arrest to be in police custody.
To determine whether you are legally in police custody, most courts apply the reasonable person standard. This is done by asking a simple question: would any given reasonable person in your situation have felt free to leave? This site has good tips on how to determine the answer to that question.
If you are in any doubt that you are being detained, ask if you are being detained. If the police say ânoâ, you are free to leave, and you should do so before they change their minds. If itâs perfectly clear that youâre being detained, still ask if you are being detained, because then they canât argue that you werenât in custody later on.
To sum it up simply: if a police officer engages you and makes you feel unable to safely walk away from them, you are in police custody. And this means, if they want to question you, they have to read you the Miranda warnings. On which note...
Miranda
You know that âright to remain silentâ spiel? Those are the Miranda warnings, a verbal acknowledgment of your rights against self-incrimination under police custody as mandated after Miranda v. Arizona. Your Miranda rights are as follows:
1. You have the right to remain silent.
2. If you do say anything, it may be used against you in a court of law.
3. You have the right to have a lawyer present during any questioning.
4. If you cannot afford a lawyer, one will be appointed for you if you so desire.
Police officers are frequently taught not to Mirandize detainees (read the rights out and confirm the detaineeâs understanding of them) until they are ready to begin interviewing them. This is done intentionally to leave you ignorant of your rights for as long as possible. If you are not Mirandized, your statements and any other evidence obtained as a result of your questioning by police may not be used against you in court. This does not mean you should chat awayâdo not do thatâbut always be aware of whether your rights have been read to you!
Even if you were not Mirandized, evidence obtained as a result of your questioning by police may be used against you if a court rules the discovery of that evidence was âinevitableâ, as in, the evidence would have been found even had you not been questioned. However, there are 4 exceptions that allow police to use information and/or evidence obtained without Mirandizing you. This site briefly covers a lot of the same ground Iâm about to, while a denser, in-depth legalese explanation can be found here.
The big exception is when police can assert they believed questioning you was ânecessary for public safetyâ. This is meant for situations involving live bombs or active shooters, where itâs critical to acquire information that could be used to save presently-endangered lives, but it could theoretically be stretched to cover scenarios like, say, youâre currently participating in a protest which the police have deemed violent and/or unlawful. Information obtained from questioning you, evidence found in your possession or as a result of questioning you, and witnesses uncovered through questioning you under the public safety exception are all admissible in court.
The next two exceptions are when asking you standard booking questions (including asking for identifying information, which is not legally considered to be incriminating) and when making a routine traffic stop.
Fourth and last, remember that any fellow detainee may be a jailhouse informant, a non-police individual tasked by the police to get information from you. This is very important because information given to jailhouse informants by non-Mirandized detainees is admissible in court.
Even if the police do not inform you of your Miranda rights, you always have your Miranda rights. You may and should exercise your right to remain silent and request an attorney. If police attempt to question you while you are in custody, immediately state that you are exercising your right to remain silent and your right to counsel. Do it as clearly and, if you are in public, as loudly as you can. Create witnesses. There is no formal language you have to follow here; even if you just say âIâm not talking to you, I want my lawyerâ, police are legally required to respect that you are invoking your rights against self-incrimination. Edit 7/8/22 since this is making the rounds again, apparently since I last studied this stuff years ago some legal precedent has weaselled its way into existence that allows police to go âoh i didnât know they were invoking their rights lmao they just Said Words Or Some Shitâ unless you explicitly say âI am invoking my right to remain silent, and I am invoking my right to counsel.â So. Memorise that. Get to the point of saying it your goddamn sleep because we all livinâ in the same dystopia now đşđ¸â¤ď¸âđĽđ
***As of 6/24/2022, police personnel who extract information from non-Mirandized detainees can no longer be sued for violating the detaineesâ Fifth Amendment rights against self-incrimination. This makes it more important than ever to verbally affirm your own Miranda rights as described above.***
Finally, do your best to document any violation of these rights by police personnel that occur, even if itâs just mentally noting date, time, and place. This will help your lawyer obtain proof of the violations, which will be valuable to your defense should your case go to court. And speaking of lawyers:
Legal Representation
If you are being questioned by police, you want a lawyer. The cops might tell you that you donât. They might say something like âhiring a lawyer makes you look guiltyâ or âwhy do you need a lawyer if you didnât do anything wrong?â or maybe even the chummy olâ âlook, we donât need to get lawyers involved here, we just want to talkâ. This is nonsense and it is a trap. Neither staying silent nor asking for an attorney can be held against you in court. It is not a tacit admission of guilt. It is an extension of your enshrined constitutional right to not incriminate yourself. You. Want. A. Lawyer.
So, you want a lawyer, but lawyers are expensive. This is in part because law is hard. People who agree to practice law on the cheap as public defenders, the attorneys which âwill be appointed to you if you so desireâ per Miranda, are often dedicated to their work. However, because lawyers are expensive, public defenders are incredibly overworked and may not be able to give your case the attention it needs. If there is no alternative, accept a public defender (they may also be referred to as a court-appointed attorney).
But! Before you do that, especially if you were involved in a protest or other social justice initiative, call the National Lawyers Guild. Their main phone number is (212) 679-5100, which can be called for information; a list of email addresses and phone extensions can be found here. This page lists all of their chapters nationwide; find the one nearest you and note down all resources they have available. Memorize the legal support hotline for the nearest chapter that has one, or write it down somewhere you canât lose it, like on your arm. Contact them ahead of time if you think youâre likely to be arrested! The NLG also has a list of attorneys to which it can refer you here, which can be searched by city, state, and area of specialty.
The American Bar Association has a directory of pro bono organizations here--in other words, a list of attorneys willing to work for free when needed. Simply search up your state and itâll throw you a list. Be prepared with contact information for a qualified organization listed here. If you believe you may be charged or threatened with criminal charges, make sure youâve selected an attorney experienced in criminal law.
In case of attending an organized protest, find out if someone set up a legal defense fund in advance. This can be used to cover your legal fees. And, again, if there is no alternative, accept a public defender or court-appointed attorney. An overworked lawyer is better than no lawyer at all.
Finally, even if you are guilty of the crime with which you have been or are expecting to be charged, try to avoid explicitly admitting guilt to your lawyer. Yes, they will still defend you, no, they wonât tell anyone because attorney/client privilege is in fact real, but lawyers are not supposed to lie to the court. If you are guilty and your lawyer knows it, they cannot claim you are innocent as part of your defense. Thereâs...wiggle room here, as technically your lawyer doesnât know youâre guilty just because you said you were, and thereâs a reason the verdicts are âguiltyâ and ânot guiltyâ instead of âguiltyâ and âinnocentâ and thatâs because factual guilt and legal guilt are two different things and any good lawyer is gonna focus on legal guilt anyway, but, man, just donât do your lawyer like that. That said, do not lie to your lawyer.
Interrogation
So youâre probably aware that the police are not allowed to physically abuse you during interrogation, or threaten to do so in order to coerce you. What you might not know is that the police can do almost anything short of that. Most importantly, the police can straight-up lie to you. About anything. They can tell you they have conclusive, hard evidence of your guilt. They can tell you the friend they arrested alongside you has told them everything and that the only way to keep yourself from going to prison forever is to turn on your friend as well. Itâs called police deception, and itâs legal to use against adults in all 50 states and against juveniles in every state except Illinois, Oregon, and Utah.
Police deception is one of the most dangerous tools available to police as it is not only legal, but unlike any other methods they might employ, your lawyer A) cannot stop the police from lying and B) is also being lied to because theyâre right there in the room with you.
Technically, the police cannot psychologically coerce someone in an interrogation, and no, I donât have any goddamn idea why police deception doesnât count as psychological coercion because it sure as hell sounds like it, but it doesnât.
The police can detain you for up to 48 hours without charging you; when that time is up, if no charges have been brought, they must release you. While I donât believe itâs specifically codified that the police must provide you with adequate food, water, and sleep; necessary medications; and bathroom access during this time, withholding any of those things is classified as coercion and will render any statements you make while interrogated under that coercion inadmissible in court.
While police cannot force you to incriminate yourself without violating your Fifth Amendment rights, police can collect biological samples like hair, blood, or saliva in many states. Maryland and California come to mind, but I canât find a unified list. In case of a suspected DUI, blood samples are legal in all 50 states through the implied consent laws tied to having a driverâs license.
Police can take your fingerprints as part of the standard booking process.
Plea bargains are tricky things to discuss, and discussion of them is best left to legal professionals, which I am not. Do not accept any plea bargains without talking it over with your attorney. Remember also that as public defenders are overworked, they may be more inclined, even just subconsciously, to take a bargain rather than enter what could become a protracted legal proceeding. The overwhelming majority of criminal cases are settled with plea bargains, including cases ending in wrongful convictions. Consider any bargain offered to you very carefully with the aid of a qualified legal professional.
Additional Resources
For legal education and questions:
The American Civil Liberties Union has a very well-organized breakdown of your civil rights here
The NLG has a short booklet in several languages called Know Your Rights: A Guide for Protesters which can be downloaded as a PDF or ordered in physical format
The ABA has an online legal clinic that will answer any legal questions you may have free of charge, as well as a list of tools and information organized by state you can use to suss out the answers for yourself
Bail funds:
The National Bail Fund Networkâs directory can point you to at least one active bail fund in any state, as well as a couple of national ones
The Bail Project is active in 31 cities nationwide at the time of posting; thereâs a map on their homepage that shows you which ones
In case of wrongful conviction:
The Innocence Project needs no introduction
The Innocence Network is a group of organizations dedicated to preventing and overturning wrongful conviction, the full list of which can be found here
If you can and wish to follow up on your detention with a civil suit and your lawyer doesnât handle such cases (or if youâve ended up on the receiving end of a suit), the Legal Services Corporation is a federally-funded nonprofit that can point you at a legal aid organization through this search function.
And thatâs about all Iâve got for you today. Iâd say âI hope this helps!â but I actually genuinely hope Iâm overthinking this whole thing and that most people do know about all the stuff I just talked about and that I look like an absolute idiot for going on about it at such length. Either way--good day and good luck!






















