When is a person actually considered to be in police custody or under arrest?
Bob: What gets evaluated by the judge and what the law says is would a reasonable person, under those circumstances, feel free to leave? So there’s a lot of things that play into that. The reasonable person is a theoretical reasonable person, it’s basically ‘would you feel free to leave under the circumstances’. And it gets to be a little bit of a gray area. One of the things that the judge will look at is ‘was there a show of force by the arresting officer’, ‘were they in uniform’, ‘were you sure they were police’, ‘what’d they say under the circumstances’? Did they say, “Get over here? Come here. Put your hands on the car”? I’ve had circumstances like that where police officers have done that and the judge has found this person is in custody and there are rights attached. Because you didn’t read them their rights, because you didn’t execute this arresting according to their constitutional rights, the evidence which you seized later on during their arrest is going to be suppressed. The case gets dismissed because of that.
