How Long Can The Police Hold Someone If They Are Not Under Arrest?


Unlawful Detention and Interrogation

This past weekend I got a call from someone telling me that her cousin was involved in a motor vehicle accident where someone died. She was being held at one of the Boston police stations. The caller was clearly intelligent. Her cousin told her that she could not leave the police station. The caller then spoke with one of the detectives who told her that her cousin “was not in custody” but also that “she could not leave the station”. Another lawyer from my office called the police station and the detective told just what the caller had told me. This prompted me to write about the question: how long can the police hold someone if they are not under arrest.

If You Are Not Free To Leave You Are Under Arrest

The standard in Massachusetts and throughout the country is the same in regard to defining an arrest. If a reasonable person in the shoes of the defendant would have believed that he was not free to leave he is under arrest. So naturally, when I heard what this detective said I was confused. So I called him myself. He repeated the same words to me. I asked him how he could keep her if she was not under arrest. He analogized her to a crime scene. He said “we freeze crime scenes. This is the same thing. She is not under arrest. We are just keeping her here until we get a warrant for her blood and her personal belongings. We are treating her like a crime scene”. The behavior of this detective constituted a patent violation of my client’s rights on many levels.

People Have Constitutional Rights That Must Be Honored

Unlike crime scenes, people have constitutional rights. You cannot be frozen like a crime scene. If you are not under arrest the police cannot hold you. The woman in this case should have been allowed to leave after the initial confrontation at the crime scene. She was unlawfully compelled to go with the police to the station and illegally held. Additionally, you cannot be detained by the police until they get a search warrant. You need probable cause to get a search warrant. That means that the officer seeking the search warrant must have a reasonable belief that you just committed a crime and the objects being searched contain evidence that a crime was committed.

In this case the police actions were reprehensible. If the cops thought the woman was impaired she should have been arrested and charged with OUI or motor vehicle homicide. Obviously the police did not have this belief or at least did not believe that probable cause existed to arrest her and charge her with a crime. Moreover, in Massachusetts you cannot be compelled to provide a blood sample or take a breathalyzer test. You can lawfully refuse to do so. Thus, getting a warrant to take blood is in and of itself unlawful.

Cases Like This One Should Be Dismissed

No charges have yet been filed in this case. Nor for that matter should they be. If however charges issue the entire case should be dismissed. There are countless defenses to this case all of which stem from gross violations of this woman’s constitutional rights.

If you have been charged with a crime call us. We can be reached anytime by calling 617-263-6800. If you are in trouble you need a lawyer. We know that we can help you.