What is the difference between detention and arrest?

The difference between detention and arrest is the police only need reasonable suspicion to stop an individual for detention. To formally arrest an individual, law enforcement officers need probable cause. Another big difference between detention and arrest is police have more opportunities to search an individual during an arrest than a detainment. Scroll down to learn more.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: May 31, 2021

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In the United States, the differences between a detention and an arrest are important because your rights change drastically from one to the other. In a detention, the police only need reasonable suspicion to stop an individual, and a reasonable person would feel as though they could leave in a short amount of time since there is no criminal charge at this time. This timeframe can vary a bit based on the circumstances, but the U.S. Supreme Court has held that 20 minutes or so is a reasonable timeframe for detaining someone. Reasonable suspicion means that there were objectively reasonable circumstances to suspect that the detained individual was involved in, or was about to be involved in a crime.

What Are Common Reasons for Detention?

In a typical detention scenario, law enforcement officers will temporarily stop a person in a public place without transporting the person to another location, for the purpose of (1) requiring the person to justify his presence and activity in the location and (2) to identify himself. For example, if a police officer sees a man loitering or otherwise acting suspiciously around an area of town that is known for drug sales, they may detain him for further questioning. If while detaining him, the police have reasonable suspicion that he may be dangerous, the stop may be accompanied by a pat down of the person for weapons. This does not mean that the police can immediately reach into pockets or search a bag without permission. However, if the police feel a “bulge” that they believe could be a weapon, they may reach in to grab it in order to protect themselves.

Other legal methods of searching during detention include using a metal detector, a drug-sniffing dog to find evidence of drugs, or a computer search to determine if the individual has any outstanding warrants for their arrest. A detention stop enables law enforcement officers, with minimal upset to public tranquility and intrusion into personal rights, to determine whether they should arrest a suspect with formal charges, investigate further, or take no action because their initial suspicion proved groundless. Further, because the intrusion into personal rights is minimal in detention, the police do not have to inform an individual of their rights or give Miranda warnings.

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When does detention lead to arrest?

To arrest an individual, law enforcement officers need probable cause. An arrest is characterized by the idea that a reasonable person would not feel free to leave due to the actions of the law enforcement officers. This usually means that the officers take the individual into custody. Custody can mean a number of things. An individual may be taken into custody by driving them back to a nearby police station. However, courts have also held custody to mean any situation in which an individual reasonably believes that they will not be able to leave within a short period of time. A law enforcement officer has probable cause to make an arrest when there are objective circumstances that lead a reasonable officer to believe that there is a high probability or substantial chance that the individual has been involved in, or will be involved in, criminal activity.

Once an arrest has occurred, before any questions are asked, law enforcement officers must provide Miranda warnings to the suspect. Miranda warnings advise the person in custody of his rights, including the right to remain silent, the right to legal representation, such as having a skilled defense attorney present during police questioning, and the right to have a criminal defense lawyer provided by the state if unable to afford one. If no questions are asked, other than questions to determine basic biographical information such as name and address, the warnings need not be given. Following an arrest, law enforcement will have more leeway to search an individual or their surroundings than they do during detention. This is because the level of suspicion has risen from reasonable suspicion to probable cause and the individual has been advised of their rights.

Incident to an arrest, the police have the right to search any area that, through inference, they believe may hold evidence of criminal activity. For example, when the police make a traffic stop and see drugs or contraband on the floor of the car, they will have probable cause to make a formal arrest of the driver or other individual in the vehicle. While they are in police custody, there may be a police search of the person, including reaching into his pockets or bag. Further, if there is probable cause to believe that the vehicle contains evidence of a crime, police have the authority to search in any area of the vehicle in which the evidence may be found and do not need the owner’s consent. The right to search an individual and their surroundings is limited, however, even after an arrest. For example, after arresting an individual following a traffic stop and searching their car, the police do not have the automatic right to then go to the individual’s home or place of employment and search those areas. If the police want to search these places, they must obtain a warrant.

What Are Your Rights During Detention or Arrest?

As a law enforcement officer’s level of suspicion rises, detainment and an arrest can often happen consecutively. Because being detained by police officers can turn into an arrest rather quickly, an individual may not know what their rights are at different stages of the detention and arrest. Further, police will often make an individual feel as though they cannot say no to a search or interrogation, even when they can. If law enforcement makes an illegal search that leads to an arrest, or if there is a search incident to arrest when the arrest was made without probable cause, the fruits of these illegal searches can be suppressed at trial. If you have recently been arrested and or searched, you should discuss your case during a consultation with a criminal defense attorney to make sure your rights are protected.

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