Detainment / Arrest – Arrest or Detainment

A person who voluntarily responds to questioning and is not restrained is considered to be detained. A person may be detained by the police for further questioning in an investigation, and that person is not necessarily under arrest. While the police may do this, a private citizen [including a security officer] cannot unless he is investigating a probable theft, and then the detention must only be for a reasonable period.

It should be clear to the suspect that he is under arrest after you have communicated your intent to arrest him and affect actual or constructive detention. However, other actions may make a suspect feel that he is under arrest. If, because of your uniform, badge, hat, or words, the suspect concludes he must answer your questions or is not free to walk away, he may justifiably claim that he was arrested.

Guilty by association is not a lawful way to make an arrest. Let’s look at an example:

  • It’s 11 p.m., and while he’s making his rounds, a security officer finds a gate open. There are pry marks on the chain. About 50 yards from the gate is an old pickup truck parked by the side of the road. The hood is up, and two men are bent over the engine. The officer walks over and says, “All right, you guys, what are you doing here?” One of the men responds, “What’s it to you, pal?” The officer answers angrily, “Look you had better tell me what you are doing here or you’re in trouble!” One of the men gets in the truck and tries to start it. The officer asks, “Didn’t you hear what I said?” The other man says, “Leave us alone.” The officer moves to the front of the truck and grabs the man’s arm, stating, “You guys aren’t going anywhere until you answer a few questions.”

Analysis: Finding the gate open with pry marks does not necessarily mean there has been a crime. Next, there is nothing to tie the two men in the truck to any alleged crime. Furthermore, the security officer cannot demand the men answer his questions. By his action, the officer could well have caused the men to believe they were under arrest, particularly when the officer assaulted the man by grabbing his arm. What should the security officer have done?

First, he should take complete notes, including a description of the condition of the gate, and report his observations to his supervisor. If he can approach the two men without leaving his post unprotected, he should do so in a friendly manner. An accusatory approach seldom gets good results.

A Better Approach:

Remember that you are seeking the information that they have; it is your responsibility to get them to talk to you, and that does not happen when you are hostile. Most people have a difficult time refusing a request for help. 

Let’s try this approach!

“Hi! Got car troubles?” One of the men replies, “Yeah! This darn thing shorts out every once in a while.” The officer then says, “I need some help. I found a gate open a few minutes ago; have you seen anybody around the gate?” The men reply, “No, we haven’t seen anybody but you.” The officer asks, “How long have you been broken down?” “Oh, maybe five minutes.” “Well, thanks for your help. If you need to call for road service, I can make the call for you.” “Thanks anyway, but we’ll get it going.” The officer then walks away.

The security officer may not have gotten much information, but he had a chance to observe each man closely and check their activities without the risk of bad public relations or a false arrest suit.