Disclaimer: I am a huge Dallas Cowboys fan, so when I opened up my sports newsfeed earlier this weekend, I quickly became concerned. That’s what the twitter
stories and dime-a-dozen news sites are going for…instant attention. And yea, it worked on me, just like it works on everyone else.
As I clicked from link to link trying to figure out some credible source, for better or worse, to give me the skinny on exactly what happened to Ezekiel Elliott in Columbus, Ohio, I saw the same recurring theme. By most accounts, Elliott had been “detained” by law enforcement outside of a bar. As an experienced criminal defense attorney, that information calmed me down somewhat.
“But he was DETAINED!” you say. Well, yeah. But so was I on Thursday last week when a cop pulled me over for speeding and kept me on the side of the road so he could issue a ticket (it should have only been for 1-10 over, but oh well).
As with most issues in the law, and the terms that explain them, you can’t get too caught up in the common sense aspect of things.
Most hear the term detention and an automatic negative reaction ensues. Many revert back to their junior high and high school years to try and get an idea of just what exactly "detention" is. Well, it isn't quite up to snuff with the The Breakfast Club, but its not too far away, in some respects, either.
A "detention" for all intents and purposes occurs when an officer has reasonable suspicion to believe that a crime has been committed and thus momentarily prevents an individual's freedom of movement (just like when the officer seized my vehicle during the traffic stop - he had reasonable suspicion that I was speeding). A person can only be detained for the time necessary for the officer to complete the reason for the investigative detention. This notion gets trickier though when we try and think of a "detention" in relation to an "arrest" and vice-versa.
The common thought-process goes as follows: a person is arrested when a law enforcement officer has obtained probable cause that a crime was committed and the arrestee is "not free to leave" or is otherwise involuntarily moved by the officer. The two major points here are the evidentiary standard and the voluntariness aspect. A legal detention only requires reasonable suspicion that a crime has occurred, whereas an arrest requires probable cause. Moreover, a detention has a certain voluntariness to it: a person voluntarily consents to the detention, or else he or she will get arrested for obstruction of an officer (basically, if you don't consent to the detention and run or walk away, the cop will have probable cause that you have committed the crime of obstructing an officer during the course of his or her official duty, i.e. the investigation).
Still, the voluntariness aspect can get murky as well. A person may consent to an officer's request that her or she go with the officer or otherwise physically remove himself or herself from some place that he or she is lawfully allowed to be. A major issue with consent is whether or not there is a show of force or authority, or any type of coercion, on the part of the officer. There is an exception though for a short movement or restriction on movement for articulable safety and security reasons. Consequently, the notion of being "free to leave" doesn't play out very well for the suspect in any situation, because in reality you aren't really free to leave in either a detention or an arrest. Regardless, courts continue to look at this "freedom of movement" aspect as a factor in distinguishing a detention from an arrest.
With that in mind, it is more important to focus on the duration of the seizure: a cop can only only detain you for long enough to either confirm or dispel his or her reasonable suspicion or effectuate the purposes of the seizure itself (give you a speeding ticket). The duration of an arrest can continue for days, weeks, months, and years so long as all the proper protocol is followed.
So, long story short, Zeke was most likely detained if the officers stopped him, even for a brief moment, and even with his consent. It's not a big deal though. We have all been detained by law enforcement at some point in our lives, unless you are one of the few folks who somehow hasn't been stopped for even a traffic violation while driving.
Now, if it turns out that Ezekiel Elliott initiated the conversation with law enforcement, then he may not have been detained at all. But remember, even if you approach law enforcement, the situation can turn into a detention if the cops developed any reasonable suspicion and begin to investigate you, even briefly. It can also turn into an arrest even if you approach law enforcement and he or she develops probable cause that you committed a crime. Which almost always happens if the cop subjectively wants it to...which says a lot since it didn't happen to Zeke.