Detained vs. Arrested: What’s the Difference?

In legal terms, there are significant differences between a detention and an arrest. During and after a police interaction, the subject usually faces one of three situations: (1) investigative detention; (2) an arrest; or (3) neither detention or arrest, in which he or she is free to leave.

In common law, investigative detention simply refers to a method of holding someone while a suspicious situation is being checked out. When the detention continues beyond a certain time limit, it can be considered an arrest.

Arrests are usually made under the statutory authority found in Title 18 of the United States Code and its supplemental terms, in which an individual may be held for a prolonged period of time (longer than detention), be transported to the police station, or another location (subject to the right to counsel), and face a bail hearing.

The outcome of police interactions is not always “arrest vs detain.” The police officer has the right to ask a few questions, even if there is no obligation to answer all of them. This could be something as simple as a vehicle traffic violation. If, however, an individual reasonably believes he or she cannot leave, it may be considered detention.

So, let’s review deeply the difference between being detained vs arrested.

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What Is Detention?

Detention occurs when a person’s liberty is restricted due to physical restraint or when the state controls a person’s movements by force or demand, possibly having significant legal consequences and preventing or impeding his or her access to counsel.

Legal requirements for detention

Detention must be connected to a recent or ongoing criminal offense that the detainee is suspected of having committed. An officer must know the criminal offense. Suspicion alone does not constitute a valid basis for detention.

Police obligations upon detention

Unless there are statutory exceptions, a detainee has the right to counsel. In the absence of detention, the police may question a person without advising him or her of the right to counsel, even if the officer eventually intends to arrest the person.

Sufficiency of belief

When the officer has reasonable suspicion that the suspect is involved in a criminal offense, it may be sufficient to justify investigative detention or an investigatory stop. When the basis for the officer’s suspicion falls short of being objectively reasonable and probable, the officer cannot arrest the individual.

Duration of power

Taking someone into custody for investigative purposes is only permitted if it is deemed reasonable in the totality of the circumstances. Depending on the nature of the situation, what is reasonably necessary will vary based on multiple factors, such as:

  1. The intrusive nature of the detention
  2. The nature or severity of the offense
  3. The investigation’s complexity
  4. Immediate concerns about public or individual safety
  5. Whether the police can continue the investigation without detaining the suspect
  6. Police negligence
  7. Investigative tools not being readily available
  8. Police having information about the suspect or crime
  9. Whether the detention was proportionate to the circumstances, including its geographical and temporal scope.

What Is an Arrest?

What is arrest vs detain? A person is being arrested when he or she is deprived of his or her freedom of movement by law enforcement. Generally, a warrant is required for an arrest. In the event of an arrest without a warrant, it must be demonstrated that there were exigent circumstances and probable cause.

Probable cause is a reasonable belief that the suspect is guilty of a crime based on the facts available to the police officer.  An arrest without a warrant may be justified in certain situations, such as when there is a reasonable belief that a crime has been committed or that a crime is about to be committed.  A police officer might arrest a suspect to prevent the suspect from escaping or to preserve the evidence.  An arrest without a warrant may be invalidated, however, if the officer cannot demonstrate that there were exigent circumstances and probable cause.

The authority to make warrantless arrests is typically defined and regulated by statutes subject to the due process guarantee of the U.S. Constitution.  Unwarranted arrests are entitled to prompt judicial dispositions, generally made within 48 hours.

When someone is arrested vs detained, certain procedural requirements apply, the primary one being the issuance of the Miranda warning. 

Purpose of arrest

When the arrest occurs during a criminal prosecution, the purpose of the restraint is to either hold the person in order to answer a criminal charge or to prevent the person from committing an offense. 

Before interfering with individual liberty, there must be certain prerequisites met in both common-law and civil-law jurisdictions. If there is probable cause to believe that a criminal offense has been committed and that the person-of-interest is probably guilty, an arrest warrant may be issued by a court or judicial officer. Only the person or class of persons to whom the arrest warrant is issued may lawfully serve the warrant. A police officer or a private citizen may perform this duty in many states.

Arrests without warrants tend to occur more often. Those who commit or are attempting to commit crimes in a police officer’s presence may be arrested on the spot. Likewise, an officer may arrest a person if the officer has reasonable grounds to believe a crime has been committed and that the arrested individual was involved in the crime. In the United States, an indictment is sufficient for arrest because the return of an indictment makes a finding of probable cause. Arrests can also be made for individuals on probation or parole who violate their conditions of release, even if criminal conduct is not involved. Oftentimes minor offenses do not result in an arrest but can result in a summons notifying the accused of pending criminal proceedings.

Main Differences Between Detained vs Arrested

Having now established an understanding of the legal meaning of the two terms, let’s examine a comparison of the key differences between an arrest and detention:

DetentionArrest
Official detention occurs when someone is held for a limited period of time pending further investigation.Taking someone into legal custody in response to a criminal charge is the act of arresting or restraining him or her.
Reasonable suspicion can be used to detain a suspect.An arrest often requires solid evidence and an arrest warrant.
A person who is detained can be held without a formal charge only for a limited amount of time.A person who has been arrested remains in police custody until bail is granted or the case is brought before a court.
An individual’s criminal record is not affected by detention.The arrest appears on the individual’s criminal record.

Detainment

  • When someone is detained vs arrested, police will keep the individual in custody for interrogation, i.e., to find out more facts about a possible crime. An arrest, on the other hand, occurs when a police officer apprehends someone for allegedly committing a crime.
  • Suspects can only be detained if there is reasonable suspicion. On the other hand, to make an arrest, the police must provide solid evidence or valid proof.
  • When the crime involved is of a more serious nature, an arrest, rather than detention, will likely be made, and further investigations into the matter will proceed.

Arrest

  • An arrest can be made after relevant evidence of the crime is gathered against the detainee. The detainee is released if no evidence is found against him or her. If the arrested person is ultimately found guilty, he or she may be subject to imprisonment, fines, or both, according to the magistrate.
  • While detention doesn’t appear on a person’s criminal record, an arrest may appear on the criminal record.
  • Detention is a temporary measure in which the individual is detained for a limited period in order for the officer to decide whether to release or arrest the detainee based on the evidence collected. In contrast, if a person is arrested, he or she is usually held in custody until bail is granted or the case is brought to court.
  • When a person is detained, there are fewer opportunities for a search to be legally conducted than if an arrest is made, in which the police officer then has legal authority to search.

What Are Your Rights During Arrest or Detention?

The experience of being stopped by the police can be stressful and may end up going in the wrong direction. Here we briefly explain the relevant criminal law and the difference between being detained vs convicted. We also offer strategies for dealing with police encounters. To be clear, the responsibility for de-escalating a situation is not that of the individual, it is the police officers. You cannot always assume, however, that an officer will act in a safe manner or respect your rights, even after you assert them. Keeping calm and not displaying hostility to the officer may help reduce the risk to yourself. Despite their best efforts to put officers at ease, some individuals unfortunately still end up injured or killed.

Your rights:

  • You have the right to remain silent. For example, there is no duty to answer any questions about who you are, where you’re going, or what you’re doing. Exercise your right to remain silent by saying so out loud. In some states, however, an officer may arrest you for failing to identify yourself if you do not provide your name.
  • A police officer may pat down your clothing if he or she suspects a weapon is present. Generally, however, under the Fourth Amendment, you do not have to consent to a search of your belongings or yourself. You may not necessarily be able to stop the officer from performing the search against your will by withholding consent, but by objecting as soon as possible to the search, you may be able to protect your legal rights.
  • In the event you cannot afford a lawyer due to your personal economics, you have the right to a government-appointed attorney for your defense.
  • It is not necessary to show your driver’s license or answer questions about your birthplace, citizenship, or how you entered the country. Please note that different rules apply at international borders and airports, as well as to individuals with certain nonimmigrant visas, including tourists and business travelers.

Can I Refuse the Search of My Property?

It’s best to let the police in if they have a search warrant signed by a judge.

If the police ask for your consent without a warrant, politely refuse. Police do not need the warrant to search a home when a homeowner consents.

It is also possible for police to search homes without a warrant under some “exigent” circumstances.

The plain view doctrine

It is lawful for the police to search your home without a search warrant if they observe an illegal act outside your house. If evidence is clearly visible, they may search and seize it.

Search incident to arrest

The police can search for weapons, evidence that may be destroyed, or accomplices without a warrant if you are arrested for drug possession. If you are arrested for drug possession, the police may search your home, car, or body for additional drugs, like cocaine.

The police can conduct a “protective sweep” if they suspect dangerous accomplices are hiding in a specific building. During the search, they can legally seize evidence that is in plain sight, inspect places where accomplices may hide, and walk through the location.

Exigent circumstances

If the police fear that obtaining a warrant could threaten public safety and society in general or lead to the loss of evidence, they can conduct a search without a warrant. When evidence is likely to be destroyed, when a suspect is trying to escape, or when someone is injured, they can forcefully enter a home. Search warrants are not necessary to defend evidence, arrest suspects, or protect individuals.

Conclusion

Whatever happens, you can always reduce the risk to yourself. Stay calm and do not run, resist, or obstruct the officers. Never give false information or lie to the officers. Keep your hands visible to the officers at all times. Request a criminal defense lawyer immediately if you wish to remain silent. Do not explain or apologize. Do not say anything, sign anything, or make any decisions without consulting an attorney. It is your right to make a local phone call if you have been arrested. The police are not allowed to listen to your call if you call a lawyer. However, they may listen to other calls.

If You Feel That Your Rights Have Been Violated

  • You should write down all the relevant details that you can recall, such as the officers’ badges and patrol car numbers, the agency they belonged to, and any other information. Make sure you get the contact information for any witnesses.
  • Taking photos of your injuries is a good idea if you are injured during a physical assault and need medical attention.
  • File a written complaint to the agency’s internal affairs department or civil complaints board. In most cases, you can file an anonymous complaint.

If You Witness Police Abuse or Brutality

  • Use your phone to record a video of the event if you can do so from a safe distance. In public areas, you are entitled to observe and record events that are plainly visible, so long as you do not interfere with what the officers are doing.
  • Don’t hide the fact that you’re recording. Although police officers have no reasonable expectation of privacy in the course of their work, the people with whom they interact may have privacy rights that require notification of the recording. It is mandatory in many states to notify people that they are being recorded.
  • The police may not confiscate your phone or demand to view your pictures or videos without a warrant, and under no circumstances may they delete your pictures or videos. You should politely but firmly tell an officer that you do not consent to have your phone taken or that you will not comply with his or her order. Remind the officer that you are allowed to take photographs or videos under the First Amendment. There is a possibility that some officers may arrest you for refusing to comply with their orders, even though their orders are unlawful. Under these circumstances, the arrest will be illegal, but you must weigh the risks of such an arrest, including the risk that the officer may search you upon formal arrest, against the value of continuing to record.
  • You should write down everything you remember, including the officer’s badge and patrol car number, the relevant government agency, the number of officers present and their names, any weapons used, including less lethal weapons like tasers or batons, and whether any injuries were sustained by the suspect. Should the person who was stopped by the police decide to file a complaint or file a lawsuit against an officer, he or she may find your information helpful, in which case you should speak to that individual after the police leave.

Frequently Asked Questions

How long can you be detained in the USA without charges?

According to Current Law 2022, in most states, the police can hold you for a period of 48 to 72 hours without charging you. In some circumstances, the police may be able to hold you for longer.

How long can you be lawfully detained?

The prosecutor will usually decide criminal charges within 72 hours of your arrest under your “speedy trial” rights. This will determine whether you may eventually be convicted vs detained and released.

Some states adhere to this 72-hour limit. However, once arrested, you may have an arrest record even if no charges are filed.

What are my rights if I am arrested or detained?

Do not attempt to resist arrest, as you can face liability. During a detention arrest, you must be:

  • Told why you have been detained or placed under arrest, and what the police is investigating;
  • Told you have a right to a lawyer as soon as possible;
  • Told about Legal Aid, free legal advice (state-provided attorney), and
  • Allowed to speak in private with a lawyer of your choice as soon as possible;
  • If you are a juvenile, you have additional rights, including the right to contact your parents.
Article by Megan Thompson

Megan Thompson is a legal writer at Lawrina. Megan writes about different law practice areas, legal innovations, and shares her knowledge about her legal practice. As a graduate of the American University's Washington College of Law she is an expert of law in Lawrina's team and has a slight editing touch to all content that is published on the website.

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