Investigative Detention or Custody – Why Does it Matter?


In a prior blog, I discussed interactions between police and citizens, noted the distinction between a mere encounter and an investigative detention, and used typical Penn State Underage Drinking investigations at a Penn State tailgate as examples of both. There is a third type of police-citizen encounter that occurs when a person is in custody. Generally, an officer will conduct an investigative detention if the officer suspects that a person has been engaged in criminal activity. If the officer’s investigation leads to a conclusion that the person did not commit an offense, then the person is released. However, if the officer’s investigation leads the officer to conclude that the person did in fact commit a criminal offense, then the officer may take the person into custody and file criminal charges. Custody does not necessarily mean that the person is actually handcuffed or physically arrested.

Investigative Detention & Custody in Penn State Marijuana Possession Case

To better understand the transition from an investigate detention to police custody, we can review a relatively routine scenario involving a Penn State

marijuana possession investigation. An officer conducting a routine patrol sees a group of people in an out-of-the-way area on campus, and, as the officer approaches, he detects the odor of burning marijuana. The officer often engages in a mere encounter when he approaches, requests identification, and questions the individuals. If the suspects attempt to leave, the officer would elevate the interaction to an investigative detention for drug possession by ordering the individuals to remain at the scene and provide identification. The Penn State officer would inform the suspects that he detected the odor of marijuana and then ask the students to voluntarily surrender any marijuana or paraphernalia that was in their possession. The students that accept responsibility and surrender the marijuana are generally told that they will be charged with misdemeanor Possession of Marijuana and Possession of Drug Paraphernalia. If the students were not cooperative, the officer would probably threaten to obtain a search warrant that would allow the officer to search the individuals for marijuana and paraphernalia.

Why Is the Distinction Important?

The distinction between an investigative detention and custody is often important for Miranda and right against self-incrimination purposes. The Fifth Amendment to the U.S. Constitution generally provides that a person cannot be compelled to testify against himself. Most people have watched an episode of COPS over the years and recall seeing the officers advise a person of his right to remain silent when the person is being arrested. Miranda warnings are required to be issued when a person is in custody and being questioned by the officer about the person’s involvement in criminal activity. If a person is not in custody, then the person need not be informed of his right to remain silent. This means that if the person is stopped as part of an investigative detention, then the officer is not required to issue Miranda warnings. However, if the person is in custody, then the officer is required to issue Miranda warnings. When an officer violates a suspect’s constitutional rights, the court will generally order that evidence found as a result of the violation must be suppressed and thereby not considered at a trial. For example, in one State College marijuana possession case that I previously handled, the officer conducted a search of the client that led to the discovery of the marijuana. The Centre County judge held that the search violated my client’s constitutional rights, ordered that the marijuana evidence must be suppressed, and the district attorney dismissed the charges.