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Is being detained under arrest or in custody???

Motofixxer

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But you're not under arrest you're detained


Actual custody has been defined to mean actual imprisonment or physical detention. State v. Schaller, 70 Wis. 2d 107, 111, 233 N.W.2d 416, 418 (1975).
https://scholar.google.com/scholar_c...=4,50&as_vis=1 Line 75 In Custody when the “ability or freedom of movement had been restricted” State v. Adams, 447 NW 2d 90 - Wis: Court of Appeals 1989



DETAIN: To retain as the possession of personalty. First Nat. Bank v. Yocom, 96 Or. 438, 189 P. 220, 221. To arrest, to check, to delay, to hinder, to hold, or keep in custody, to retard, to re strain from proceeding, to stay, to stop. People v. Smith, 17 Cal.App.2d 468, 62 P.2d 436, 438. (Blacks Law 4th Ed, Pg 535)

ARREST: To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand. Ex parte Sherwood, 29 Tex.App. 334, 15 S.W. 812. Physical seizure of person by arresting officer or submission to officer's authority and control is necessary to constitute an "arrest." Thompson v. Boston Pub. Co., 285 Mass. 344, 189 N.E. 210, 213. It is a restraints however slight, on another's liberty to come and go. Turney v. Rhodes, 42 Ga.App. 104, 155 S.E. 112. It is the taking, seizing or detaining the person of another, touching or putting hands upon him in the execution of process, or any act indicating an intention to arrest. U. S. v. Benner, Bald. 234, 239, Fed.Cas.No.14,568; State v. District Court of Eighth Judicial Dist. in and for Cascade County, 70 Mont. 378, 225 P. 1000, 1001; Hoppes v. State, 105 P.2d 433, 439, 70 Okl.Cr. 179.(Blacks Law 4th Ed, Pg 140)

SEIZE: seize,vb.1. To forcibly take possession (of a person or property). 2. To place (someone) in
possession. 3. To be in possession (of property).4. To be informed of or aware of (something). See
SEISIN; SEIZURE.(Blacks Law 8th Ed, Pg 4237)

SEIZURE: seizure,n. The act or an instance of taking possession of a person or property by legal right or
process; esp., in constitutional law, a confiscation or arrest that may interfere with a person's
reasonable expectation of privacy. [Cases: Arrest 68(4); Searches and Seizures 13.1. C.J.S.
Arrest § 45; Searches and Seizures§§ 8, 13, 20, 23, 70, 72.](Black's Law Dictionary 8th Ed, Page 4238)





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OC for ME

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RSMo 544.180. Arrest. — An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise. The officer must inform the defendant by what authority he acts, and must also show the warrant if required.
It appears that there is no distinction between detainment and arrest in Missouri. It appears that WI has their statute worded similarly.

Of course, submission may be defined differently depending on your point of view.
 

Grapeshot

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Detained = arrested = detained.

One is not free to go.

The nice officer does not have to read you your rights first, he does not have to tell the truth.
 

WalkingWolf

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NC a citizen is not allowed to arrest, only stop, and detain. They must not attempt to transport the detained. I will have to dig, but it is pretty clear that if an officer moves you from your location that is an arrest. Whether he is correct I don't know for sure, but the magistrate told me not to move a detained shoplifter at all. That would include taking them to the back room, once that is done it becomes an arrest, which is only legal for a LEO.
 

Motofixxer

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A citizen has no indicator, indicia, of authority.
You appear to be indicating a citizen can't make an arrest? Which appears to be false according to the 2 cases below indicating a common law authority. So if you're in a commonwealth like WI or NC is(I think) it appears one can make an arrest.

http://scholar.google.com/scholar_ca...=4,50&as_vis=1 State v. Slawek Section 337, 338
http://scholar.google.com/scholar_ca...50&sciodt=4,50 Waupaca County v. Krueger, Wis: Court of Appeals, 4th Dist. 2011
 
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WalkingWolf

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You appear to be indicating a citizen can't make an arrest? Which appears to be false according to the 2 cases below indicating a common law authority. So if you're in a commonwealth like WI or NC is(I think) it appears one can make an arrest.

http://scholar.google.com/scholar_ca...=4,50&as_vis=1 State v. Slawek Section 337, 338
http://scholar.google.com/scholar_ca...50&sciodt=4,50 Waupaca County v. Krueger, Wis: Court of Appeals, 4th Dist. 2011
Not in NC.

§ 15A-404. Detention of offenders by private persons.

(a) No Arrest; Detention Permitted. - No private person may arrest another person except as provided in G.S. 15A-405. A private person may detain another person as provided in this section.

(b) When Detention Permitted. - A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:

(1) A felony,

(2) A breach of the peace,

(3) A crime involving physical injury to another person, or

(4) A crime involving theft or destruction of property.

(c) Manner of Detention. - The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.

(d) Period of Detention. - The detention may be no longer than the time required for the earliest of the following:

(1) The determination that no offense has been committed.

(2) Surrender of the person detained to a law-enforcement officer as provided in subsection (e).

(e) Surrender to Officer. - A private person who detains another must immediately notify a law-enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law-enforcement officer. (1973, c. 1286, s. 1.)
 

solus

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here nc
Not in NC.
§ 15A-404. Detention of offenders by private persons.
(a) No Arrest; Detention Permitted. - No private person may arrest another person except as provided in G.S. 15A-405. A private person may detain another person as provided in this section.
(b) When Detention Permitted. - A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:
(1) A felony,
(2) A breach of the peace,
(3) A crime involving physical injury to another person, or
(4) A crime involving theft or destruction of property.
(c) Manner of Detention. - The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.
(d) Period of Detention. - The detention may be no longer than the time required for the earliest of the following:
(1) The determination that no offense has been committed.
(2) Surrender of the person detained to a law-enforcement officer as provided in subsection (e).
(e) Surrender to Officer. - A private person who detains another must immediately notify a law-enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law-enforcement officer. (1973, c. 1286, s. 1.)

WW, the real problem of even deciding how to detain a NC citizen under the statute you cited since per NCGS 14-34, Assaulting by Pointing a Gun, makes it a class A1 misdemeanor to point a unloaded or loaded gun at the citizen.
https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-34.html

class A1: https://www.ncleg.net/gascripts/statutes/statutelookup.pl?statute=15A-1340.23
 

Firearms Iinstuctor

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northern wis
Any one thinking about making citizens a arrest even if legal to do so.

Should consider all the facts and problems that goes along with such actions.

It is nothing to take lightly.
 

protias

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Dec 18, 2008
Messages
7,301
Location
SE, WI
Not in NC.

§ 15A-404. Detention of offenders by private persons.

(a) No Arrest; Detention Permitted. - No private person may arrest another person except as provided in G.S. 15A-405. A private person may detain another person as provided in this section.

(b) When Detention Permitted. - A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:

(1) A felony,

(2) A breach of the peace,

(3) A crime involving physical injury to another person, or

(4) A crime involving theft or destruction of property.

(c) Manner of Detention. - The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.

(d) Period of Detention. - The detention may be no longer than the time required for the earliest of the following:

(1) The determination that no offense has been committed.

(2) Surrender of the person detained to a law-enforcement officer as provided in subsection (e).

(e) Surrender to Officer. - A private person who detains another must immediately notify a law-enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law-enforcement officer. (1973, c. 1286, s. 1.)
Since this is the WI subforum, NC laws have to legal weight here.
 

OC for ME

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Back to cops...do cops in WI know the court cases in the op? Do they agree with them? Or, do they go with SCOTUS and their vile decision Terry v. Ohio and "detain" folks knowing that they are virtually free to do so without repercussions.
 

protias

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Messages
7,301
Location
SE, WI
Back to cops...do cops in WI know the court cases in the op? Do they agree with them? Or, do they go with SCOTUS and their vile decision Terry v. Ohio and "detain" folks knowing that they are virtually free to do so without repercussions.
lol, police knowing the law in the state... :lol:
 

WalkingWolf

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North Carolina
Since this is the WI subforum, NC laws have to legal weight here.
I was only using NC laws to show the difference between detention, and a arrest. Being stopped, and questioned is a detention, being restrained in cuffs, stuffed into the back of a police car, or moved from one place to another is an arrest, IMO.
 

cocked&locked

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PA
Detained = arrested = detained
Incorrect! An 'arrest' is a process by which a person is brought before a court (a summons is another one). A 'detainment' does not necessarily result in a person being brought before a court (such as with a Terry or motor vehicle stop).

That is just one major difference between an 'arrest' and 'detainment'. There are others.
 
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WalkingWolf

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North Carolina
Incorrect! An 'arrest' is a process by which a person is brought before a court (a summons is another one). A 'detainment' does not necessarily result in a person being brought before a court (such as with a Terry or motor vehicle stop).

That is just one major difference between an 'arrest' and 'detainment'. There are others.
That is not the common definition, seizing a person is an arrest. Now whether a person is is seized while being detained is up for debate. Consensual detainment IMO is not always an arrest. Cuff, and stuffed is an arrest. People are arrested, and released every day without being brought before a court. They will be later down the road, but for misdemeanors usually not.
 

cocked&locked

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That is not the common definition, seizing a person is an arrest. Now whether a person is is seized while being detained is up for debate. Consensual detainment IMO is not always an arrest. Cuff, and stuffed is an arrest. People are arrested, and released every day without being brought before a court. They will be later down the road, but for misdemeanors usually not.
Not trying to define terms. If you want a definition then go to Black's. Simply trying to educate. An arrest is not equal to a detention. and being placed in cuffs is not an arrest either. People simply detained are placed in cuffs all the time.

Seizing a person is part of the arrest process. But a person that is arrested must be brought before a court at some point. Being brought before a court is also part of the arrest process.

Comparing 'arrest' and 'detainment' is like comparing apples and oranges. 'Arrest' describes a process. 'Detainment' describes a condition.

By the way, there is no such thing in the law as a 'consensual detainment'. If you are referring to a 'voluntary encounter' then that, by definition, is not a 'detainment'.
 
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WalkingWolf

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Not trying to define terms. If you want a definition then go to Black's. Simply trying to educate. An arrest is not equal to a detention. and being placed in cuffs is not an arrest either. People simply detained are placed in cuffs all the time.

Seizing a person is part of the arrest process. But a person that is arrested must be brought before a court at some point. Being brought before a court is also part of the arrest process.

Comparing 'arrest' and 'detainment' is like comparing apples and oranges. 'Arrest' describes a process. 'Detainment' describes a condition.

By the way, there is no such thing in the law as a 'consensual detainment'. If you are referring to a 'voluntary encounter' then that, by definition, is not a 'detainment'.
Many people have been arrested, and never been to court. BUT their arrest status is still in the FBI database. Whenever someone is detained, and they do not object, IT IS consensual, the courts have said so over, and over again. And here is the real kicker, a person can be indicted, taken to court, prosecuted, and never arrested.
 
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cocked&locked

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Many people have been arrested, and never been to court. BUT their arrest status is still in the FBI database. Whenever someone is detained, and they do not object, IT IS consensual, the courts have said so over, and over again. And here is the real kicker, a person can be indicted, taken to court, prosecuted, and never arrested.
I post to educate the layman out there. If you do not want to accept my point of view that is on you. Show me one case where a court of law has used the term 'consensual detainment'. Show me one instance in American jurisprudence where a person has been lawfully arrested and never taken to court. The sole purpose of an 'arrest' is specifically to bring a person before the court. There are even rules about how long an arrestee can be detained without being brought before a court.

Your last statement just illustrates my point. Arrest is just one process to get a person before a court. A person can also be 'summoned' and prosecuted before a court without being arrested.

If you want to have an intelligent conversation, then fine. But please stop posting nonsense.
 
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WalkingWolf

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I post to educate the layman out there. If you do not want to accept my point of view that is on you. Show me one case where a court of law has used the term 'consensual detainment'. Show me one instance in American jurisprudence where a person has been lawfully arrested and never taken to court. The sole purpose of an 'arrest' is specifically to bring a person before the court. There are even rules about how long an arrestee can be detained without being brought before a court.

Your last statement just illustrates my point. Arrest is just one process to get a person before a court. A person can also be 'summoned' and prosecuted before a court without being arrested.

If you want to have an intelligent conversation, then fine. But please stop posting nonsense.
YOU claim to be something more than a lay person regarding the law. Bwhahahaha. It has come up in several cases where convictions were upheld when the person claimed to be seized, and the courts have ruled unless you voice your rights, IT IS CONSENSUAL.

There are literally hundred of cases, but here is just one, United States v. Douglass, No. 05-2608, 2006 U.S. App. LEXIS 27400 (7th Cir. 2006). As a so called expert you do not know what you are talking about, not one bit. If you are an attorney I would steer clear of your services.
 
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cocked&locked

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YOU claim to be something more than a lay person regarding the law. Bwhahahaha. It has come up in several cases where convictions were upheld when the person claimed to be seized, and the courts have ruled unless you voice your rights, IT IS CONSENSUAL.

There are literally hundred of cases, but here is just one, United States v. Douglass, No. 05-2608, 2006 U.S. App. LEXIS 27400 (7th Cir. 2006). As a so called expert you do not know what you are talking about, not one bit. If you are an attorney I would steer clear of your services.
http://caselaw.findlaw.com/us-7th-circuit/1384662.html

The above is a link to the case. I encourage everyone to read it for themselves so they can fully understand what I am about to say; and the mental midgets (Nightmare & Walking Wolf) that I am saddled with today.

To the Law Firm of M&M’s 1&2:

(1) Fortunately for me and my reputation (and unfortunately for your reputation), many people on on this forum already know that the law only recognizes 3 types of police encounters; and a ‘consensual detainment’ is not one of them, you fools.
(2) If you had bothered to read the case, or had more than a 3rd grade reading comprehension, you would understand that the holding of the case was that the encounter before Douglass drove off was ruled a ‘voluntary encounter’, not your mythical ‘consensual detainment’.

Did you two M&M’s also go to Mr. Charlatan’s law school? Or did you learn how to misrepresent cases all on your own? Oh, that’s right, you did not go to law school! You cannot read past the 3rd grade!

So, since you have a comprehension problem, let me make things simple for you. Let me put things in terms your simple minds can understand. You have just been cocked without any lubricant. LOL. And you can’t make this sh*t up!
 
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