Stephanie G. Johnson Legal
Stephanie G. Johnson Legal

Am I Under Arrest?

 

am i under arrest?

 

 
 
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the big question

Am I under arrest?  Many of us have an idea of what being under arrest looks like from TV shows and movies: first there is the clear declaration, “You are under arrest”, followed by a recitation of the arrestee’s Miranda rights. “You have the right to remain silent...” But as is often the case, reality is not always a reflected in what Hollywood shows us.

The tier system is useful in understanding the differences between the types of interactions that occur between law enforcement and members of the public and the rights, causes, and obligations associated with each tier. It is also important to know that many encounters with law enforcement will start on one tier and can move in any direction to other tiers. 

Please note: The information provided is intended to help potential clients determine if Stephanie G. Legal is the right firm for them. This website is intended for educational purposes only and should not be considered, or taken as, legal advice. 


types of stops (Law Enforcement Encounters)

Tier 1 interactions are voluntary and consensual encounters between the police and the public. Like anyone else, a police officer can engage you in a conversation, person to person, for any reason or no reason.  Possible topics of conversation are not limited, and the police can ask to search you or your vehicle. At tier 1, you are under no obligation to answer any questions or continue the interaction, but many people do out of a fear of seeming rude or the desire to be compliant. In a tier 1 interaction you are free to leave at any time.

Tier 1 Summary:

Am I under arrest? NO

Am I free to leave? YES

What is the basis for this interaction? NONE


Tier 2 stops are investigative detentions. (These are commonly referred to as Terry stops.) The police may detain you based on a reasonable articulable suspicion.  You may be questioned briefly based on those suspicions, and the police may pat down your outer clothing in order to ensure their safety from any weapons you might have. This is also known as a Terry Stop. Tier 2 stops are not arrests (even though you are not free to leave) because the detention is limited in time and scope.

Traffic stops are also usually tier 2 stops because there is often a reasonable suspicion that a traffic violation has occurred. This is not considered an arrest because the person stopped will usually be released after a short time with a ticket or warning.

Tier 2 Summary:

Am I under arrest? NO

Am I free to leave? NO

What is the basis for this interaction?  A reasonable suspicion.


Tier 3 is a custodial arrest. You might be told that you are under arrest, you will not be free to leave, you may be handcuffed, and you may be placed in a police car. Tier 3 interactions are based on probable cause, which means that the police officer has (1) a reasonable belief (2) based on facts (3) that a crime took place (4) and that the person being arrested is the one who committed it.

Custodial arrest triggers your Miranda rights, which may be recited to you. The name Miranda refers to the 1966 Supreme Court decision Miranda v. Arizona which requires that any person in police custody be informed of their rights before being questioned as part of a criminal investigation. The warning must include a reminder of the right to remain silent, that any statement made can be used against you in court, the right to have an attorney present, and the right to have an attorney appointed to you if you cannot afford one. This is usually stated in the format we are all familiar with:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.

Tier 3 Summary: 

Am I under arrest? YES

Am I free to leave? NO

What is the basis for this interaction? Probable cause

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