Detention vs. Arrest: How to Tell the Difference

If you are out on the streets minding your own business, and a police officer begins to question you, you might wonder if you are being detained or arrested. The two terms are sometimes used interchangeably, but they have specific legal definitions that are very different. If you are charged with a crime based on evidence that is found during this time, whether you were detained or arrested could have a huge impact on the way your case plays out.

In general, police officers are free to strike up a conversation with anyone they like. If a reasonable person would feel free to leave the situation at any time, it is neither a detention not an arrest. However, if a reasonable person would not feel free to leave, then the situation is either a detention or an arrest. Here is how to tell which it is.

Detention

A detention is a “brief and cursory” holding and questioning. This occurs when you are pulled over for a traffic violation or questioned about suspicious behavior. To legally detain you, the officer must have “reasonable suspicion” that you are or were involved in a crime. Detentions must last no longer than necessary and must be conducted with the least intrusive, reasonably available means.

Arrest

You can only be legally arrested if the officer has either a warrant or “probable cause.” Probable cause is a stricter standard than reasonable suspicion, and it means that the officer must have reason to believe it is likely that are you committing or have committed a crime.

If you are detained by a police officer for a prolonged period of time, the detention could turn into a de facto arrest. Likewise, if the officer finds evidence during the detention that triggers the probable cause threshold, the detention could become an official arrest. An arrest typically involves more severe restraints on your movement, such as handcuffing and placing you in the back of the police car, along with a verbal advisement that you are under arrest. However, if a reasonable person would consider the officer’s behavior to be consistent with an arrest, then the courts generally agree that an arrest has occurred.

No Clear Line

The reality is that there is no clear line between detention and arrest, leaving it to the courts to decide which occurred. A wide range of factors are used in making this determination, including:

• The amount of force used
• The number of officers involved
• The length of the stop
• The physical handling of the suspect

If you have been detained or arrested, it is important to seek representation from an experienced local attorney. The sooner you seek our help, the more we can do to help you win your case.

Ready to Get Started?

If you are involved in a criminal or family case, past president of the Montgomery County Bar Association, Andrea Kolski, has the background you need to win. For more information or to schedule a consultation,contact Nonstop Justice today at 832-381-3430.