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The Chicago police used to (or perhaps still do) take detainees to a site at Homan Square, question them, take them a different police site and then arrest them. Or at least that's what they claim. Can a LEO actually move a detainee miles from the point of initial detainment without arresting them? My intuition says that a LEO moving a detainee that far implicitly puts the detainee under arrest, even if the LEO doesn't make it official until later.

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  • The original Guardian article referenced by the TechDirt article you link to says that the people detained there had been arrested. There's also the technical difference between being arrested and being charged. However, being denied their rights makes this whole thing legally grey anything. Mar 9 at 10:34
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No

An arrest is the act of detaining a person or property by legal authority or warrant and has been made when a police officer or another individual makes it clear to the person that they are no longer a free person.

A person does not need to be physically touched to be placed under arrest as words alone are capable of bringing about an arrest if they establish that the person is no longer a free person.

Now, if a LEO asks you to accompany them, then, so long as you have the choice not to, you are not under arrest.

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    A good way to test if you are or are not under arrest is to ask the officer if you are free to leave the scene. If the cop says no, do not say anything except "Lawyer" and any other simple words to indicate you want to speak with one.
    – hszmv
    Mar 10 at 20:00
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This will vary by jurisdiction, but there are clear distinctions between being detained and being arrested.

For example, when you are caught speeding, you are detained but not arrested. You are held locally while the officer processes the citation and attempts to gain evidence for other offenses. You are not free to leave, and despite street lawyers on the internet, asking if you are free to go isn't automatically a get away from police card. Other examples may be questioning a potential suspect near the scene of a crime. The person being questioned is not free to leave, but is not arrested. Note that this type of detention is used overwhelmingly in the USA against minorities ("black man in dark clothing" can apply to whole swaths of society). While specific requirements will vary by jurisdiction, along with what someone who is questioned has to answer, these detentions should be short. If the officer finds probable cause, they may arrest the suspect and take them into custody. The consideration of if there were probably cause or not for arrest can be challenged in court.

Only courts can adjudicate whether police actions fall outside of detention. There is a concept of de facto arrest, which is probably what the Chicago Police actions were. If it looks like arrest (taking someone away against their will and holding them) it probably is.

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  • Should correct that you should wait until the officer that has mostly been dealing with you answers "am I free to go?" Until you get an answer, act as if you are under arrest. If the cops like you for a crime you didn't commit, shutting up and lawyering up are just as smart plays as they are if you did it.
    – hszmv
    Mar 10 at 20:04
  • @hszmv, some jurisdictions in the US allow the person being questioned to say nothing, others require answers to some basic questions. Most require the person to identify and state what they are doing I believe.
    – Tiger Guy
    Mar 11 at 4:27
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    Complying with a request for identity is generally a lawful order request of police. They can ask you in a polite way, but refusing could get you in trouble. The 5th Amendment protects against your right to self-incrimination, which can occur any time when you are talking to the cops. Rules of evidence allow the cops to use your testimony against you and only against you (out of court statements or hearsay is normally not admissible but there are exceptions... statements against interest are one such exception).
    – hszmv
    Mar 11 at 12:02
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    Complying officer's requests, even when they are wrong, is still advisable because they have a gun and have a better argument in court if the situation escalates further. Cops are allowed to lie to you, so don't take their word for it that you must answer. Just be sure that when you're in front of a judge that you have someone to pound the table about how the interaction was coerced.
    – hszmv
    Mar 11 at 12:05
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    It's not even that... the side of the road when an officer is about to give you a ticket is not a court room. That's the place to have the "I know my rights" argument. My brother is a cop. I know from sharing a bed room with him as a kid that he can be wrong at times... but starting that argument when he lights me up is only asking for trouble because at the time, I don't have a judge or a lawyer... and he has a badge and a gun.
    – hszmv
    Mar 12 at 17:06
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The general rule is that an individual is under arrest by an LEO when the individual is not free to leave. In criminal procedure jurisprudence this is known as, conveniently, "the free to leave test." Since your hypothetical said the LEO is 'moving' the detainee, I infer the detainee isn't voluntarily accompanying the LEO. So, I'm going to say your intuition is likely correct; an arrest has likely occurred in such a situation.

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