What Does It Mean to Be Detained?
In a legal context, being "detained" in all likelihood means that you’re not free to leave the premises at that particular time. Someone, usually law enforcement, may be questioning you and holding you there for questioning, but for now you are not arrested or imprisoned. Someone may want to know more about your where-abouts, your purpose and/or your identity.
There are very strict rules about questioning detained individuals and how long that detention may last. An example is if you are stopped by a police officer for questioning. Under their interpretation of the law, he/she has the ability to temporarily detain you for a short period of time (somewhere around 90 minutes) to ask questions. After that, they do not have the right to hold you unless formally placed under arrest.
Despite the fact that it seems like you are not being illegally held , there are important considerations from a legal standpoint. The law gives great deference to questioning by law enforcement, but importantly, the law also requires law enforcement officers to conduct questioning fairly – and without coercion or duress. If you were detained by law enforcement officials and were questioned in an intimidating manner or likely could not have freely left the situation, you may have grounds for an abuse of power claim against that law enforcement agency. It’s important to remember that, should a legal action come about, it doesn’t matter if the police officer in question told you that you were "under arrest." Instead, the key element is whether you felt that you could leave that place, and the actions of the police officer or agency in question supports that you were indeed not free to leave that location.
The Legal Qualifications of Being Detained
"To lawfully detain someone—keep them from leaving—the officer must have probable cause or reasonable suspicion."
Probable cause is usually reserved for arrest. Probable cause means there is a fair probability that a crime has been, is being, or will be committed. Reasonable suspicion is a broader standard and allows officers far more latitude in stopping and questioning people. According to the California Court of Appeal in In re Tony C., (1978) 21 Cal.3d 888, probable cause exists when the facts and circumstances known to the officer are sufficient to cause a person of ordinary care and prudence to entertain an honest and strong suspicion that a particular offense has been committed. While reasonable suspicion is a lower standard, it nevertheless requires "some objective manifestation that criminal activity is at hand." During the stop, the officer may investigate a reasonable period of time, but it must be on the issue of reasonable suspicion and cannot be a mere fishing expedition. This is known as a Terry stop based upon the 1968 Supreme Court case Terry v. Ohio, 392 U.S. 1, 20-21 (1968). What is reasonable depends on the situation. Generally speaking, officers should avoid extending the detention longer than necessary to achieve its purpose. Examples of factors considered include: Just because officers stop someone and ask where the person was going and who they were with, does not make these questions reasonable. The court in Brown v. Texas (1979) 443 U.S. 47, 51 held it is the duty of the courts to scrutinize carefully the extent to which the police may induce a reasonable person to cooperate.
Rights of the Person Detained
The rights of individuals who are detained can differ from one state to another. In general, in the First and Second Circuit Courts of Appeals (which cover Connecticut), if a person is detained or held in a correctional facility, they cannot be kept there for longer than 60 days without being formally charged with a crime and allowed the legal rights afforded to defendants.
Those rights include:
- the right to be informed of what crime you’re being charged with
- the right to legal representation
- the right to meet with an attorney before being arraigned and formally charged
- the right to a preliminary hearing, which is an evaluation of the government’s case
- the right to a jury trial upon request (in most cases)
- the right to a speedy trial
If a person is detained without being charged with a crime and granted the expected rights, a criminal defense attorney can seek a writ of habeas corpus (a document asking a court to hear the case and review the facts) on the detained individual’s behalf.
Some jurisdictions don’t allow for the right of habeas corpus in cases involving illegal detention, but Connecticut state law does allow for it.
Other than habeas corpus, an individual detained without being charged with a committed crime can ask for a pretrial hearing as mandated by the Speedy Trial Act of 1974.
At the hearing, the government must bring forth evidence that the defendant should remain detained prior to his or her trial and isn’t a flight risk. If there’s no substantial reason to keep the individual behind bars, the government’s case for keeping them detained will be dropped.
It’s also possible that a judge might release a suspect before the pretrial hearing but add requirements that they wear an ankle monitor or await trial elsewhere instead of returning home — like a treatment center or in a relative’s home — thereby limiting the suspect’s freedom but preventing long-term detention.
Temporary and Indefinite Detention
Temporary and indefinite detention A related question is whether the statutory time limits apply to all detentions indefinitely or are still subject to the time limits set out in the Act: s 501CA(7) Immigration Act 2009, in Crim v Chief Executive of Department of Internal Affairs [1991] 2 NZLR 1, Cooke P referred to a possibly indefinite list of persons detained under s 8 and said at page 10, "While a lengthy list authorised by s 8 may be probable, a list for an indefinite time is impossible." Cooke P was not deciding the present question which was whether or not the time limits in ss 501CA(7)-(16) apply to all detentions indefinitely and so they do NOT . Section 501CA(7)-(16) applies time limits to relevant offences. It is possible s 501CA(7 ) is intended to apply only to temporary detention. Temporary detention allows the detention to be revocable by the Minister, under sections 501(5)(b) to 501(5)(d) acts of Channel Island or Singapore, Malaysia, Fiji or Tonga. Temporary detention should meet the requirements of a valid detention as discussed in the previous sections of this Blog. For a temporary detention, there is no maximum period of detention in section 501CA. But there is the possibility of periodic review of a temporary detention if s 501CA(5)(d) is applicable. Indefinite detention seems to cover all persons who are not otherwise temporarily detained.
Remedies for Unlawful Detention
If you or someone you know has been unlawfully detained, or if you believe that you have been unlawfully arrested, you have a legal right to seek the remedy of habeas corpus. "Habeas" means to have, and "corpus" means body (as in "the body of John Doe") Termed the writ of "greatest remedy" and the "great corrective," habeas corpus is governed by Mass. General Laws c. 248, §§1-32 and allows for release from illegal or unlawful custody. The parties named in these statutes are the custodian and the prisoner. A custodian is one who holds custody of another by actual and apparent authority. A prisoner is any person who has been illegally arrested, detained, ordered to be committed or held under confinement, having the right by law to prosecute a petition for a writ of habeas corpus. The Massachusetts statutes are a codification of the common law right to seek a writ of habeas corpus. G.L.c. 248, § 9 specifically provides: The prisoner may present a petition for a writ of habeas corpus to the superior court which is located in the county where the prisoner is imprisoned or is detained . . . . A single justice of the supreme judicial court shall, upon a hearing, determine whether the petitioner is entitled to the relief sought by the petition. Generally, any form signed by the prisoner and the person seeking the writ is regarded as sufficient. The petition must contain a statement indicating: 1) the name and location of the warden; 2) the warden’s official capacity or authority; and 3) the stated grounds for the application. Although a habeas corpus petition must be filed in superior court, such petition should be filed with the clerk’s office for criminal business (located at the Edward W. Brooke Courthouse in Boston) due to the specific time restrictions set forth in the statute. In addition to the Massachusetts habeas statute, there are a number of other statutes where habeas corpus relief is mentioned by name. These include statutes dealing with habeas corpus relief during military operations (G.L.c. 33, § 105A), the confinement of minors (G.L.c. 119, § 39E), drug convictions (G.L.c. 94C, § 32), civil commitment (G.L.c. 123, § 5), the confinement of veterans (G.L.c. 115, § 12), as well as in other statutes where the relief is provided. Each statute contains specific time constraints for the filing of petitions and traveling for a hearing. There are also a number of other constraints to the relief being sought.
Cases Highlighting Detention
The legal definition of "detained" has been interpreted in numerous notable cases throughout American jurisprudence. In one of the most famous cases involving detention, Writ of Habeas Corpus in 1842, the Supreme Court of the United States heard the case of Ex Parte Milligan, a Northern soldier who was arrested by a provost-marshal and tried by a military commission during the Civil War. The Court of course held that he should have been tried by a regular court, even though the war was going on and judicial proceedings were shut down. And of particular interest to practitioners was Justice David Davis’s concurrence, which elaborated on the concept of "detention," with his famous description of it as "an arrest and hold on the person by the operations of law, or what it calls itself—to civil supersedeas." The decision was a landmark to say the least, and the definition of "detention" has been used by legal practitioners ever since in cases concerning issues of habeas corpus, extradition, and probation.
The famous case of Wong Wing v . United States involved the issue of whether the defendant Wong Wing could be detained in the courtroom by federal law enforcement agents. The Court concluded that this activity constituted an unlawful "restraint" and therefore Wong Wing could not be detained. The Court went on to say that "manifestly the writ of habeas corpus is the only remedy for [Wong Wing’s] wrong."
In December 2011, the Plaintiff in the case of Wilner v. National Security Agency filed his Initial Settlement Papers with the Court, detailing his challenge to the constitutionality of the FISA. Among his allegations, Wilner claims that, contrary to the statute’s plain language, the NSA’s so-called program of "surveillance" under the statute is an extrajudicial program of "detention," held at various sites around the world. The initial briefings released by the Obama administration throughout 2009 referenced that detainees were knowledgeable about the telecommunications surveillance program, as were many at the time. According to Wilner, this situation jeopardizes U.S. citizens’ interests and security. The case remains active at the present time.