Detained vs. Arrested: What’s the Difference?

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In legal terms, there are huge differences between an arrest and detention. During an interaction with the police, the subject is usually placed in one of three legal states: there are time limits beyond which detention becomes an arrest.

Investigative Detention

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


Arrests are usually the result of statutory power under Title 18 of the United States Code, allowing an individual to be held for a more prolonged period of time than detention, including transport to another location, subject to the right to counsel, and a bail hearing.

Neither Detention Nor Arrest

Interactions with police do not always result in arrests and detentions. The police have the right to ask you a few questions, even if you do not have to answer all of them. However, if it even implies that you cannot leave, it may be detention.

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 that may have significant legal consequences and prevents, or impedes, his or her access to counsel.

Purpose of Detention

Legal Requirements for Detention

Detention must be connected to a recent or ongoing criminal offense that the detainee is suspected to have 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, everyone detained has the right to counsel. In the absence of detention, the police may question a person without advising them of their right to counsel, even if they intend to arrest the person.

Sufficiency of Belief

When an officer’s grounds for belief fall short of being objectively reasonable and probable, he or she cannot arrest the suspect. When the officer has reasonable suspicion the suspect is involved in a criminal offense, it may be sufficient to justify investigative detention.

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, for example:

  • the intrusive nature of the detention,
  • the nature or severity of the offense,
  • the investigation’s complexity,
  • immediate concerns about public or individual safety,
  • if the police can continue the investigation without detaining the suspect,
  • police negligence,
  • investigative tools are not immediately available,
  • police have information about the suspect or crime, and
  • in what way the detention was proportionate to the circumstances, including its geographical and temporal scope.

What is an Arrest?

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

Based on the facts and information available to the police officer, probable cause is a reasonable belief that the suspect is guilty.  The arrest of a suspect without a warrant may be justified in certain situations, where 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 in order to prevent the suspect from escaping or to preserve the evidence.  An arrest without a warrant may be invalidated, however, if the police officer did not demonstrate that there were exigent circumstances and probable cause.

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

When someone is arrested, certain procedural requirements may apply, such as being issued the Miranda warning. 

Purpose of Arrest

When the arrest occurs during a criminal prosecution, the purpose of the restraint is either to hold the person for an answer to a criminal charge or to prevent him from committing an offense. A civil action is meant to compel a person to fulfill a demand made against him.

Prior to 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 charged 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 directed may serve a valid arrest warrant. A police officer or a private citizen may perform this duty in many states of the United States.

Arrests without warrants occur more often. Those who commit or are attempting to commit crimes in a police officer’s presence may be arrested. 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 is guilty. 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 of people on probation or parole who violate their conditions of release, even if they do not involve criminal conduct. Oftentimes minor offenses do not result in arrest but rather a summons notifying the accused of pending criminal proceedings.

Arrest vs. Detained: Key Differences

Having established an understanding of the meaning of the two terms, let’s examine the key difference between detain and arrest:

  • In a detention situation, police keep a suspect in custody to interrogate and find out the facts of the crime. An arrest, on the other hand, is when the police apprehend 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 is more serious, arresting the suspects is preferable to detention when the offense is less severe.
  • Upon gathering the relevant evidence against the detainee, it leads to his or her arrest, or the detainee is released if no evidence is found against him or her. However, if the arrested person is found guilty, he or she may be sentenced to imprisonment, fines, or both, according to the magistrate.
  • When someone is detained, it doesn’t appear on their criminal record, whereas when they are arrested, it may appear on their police record.
  • Detention is a temporary measure, and a person is detained for a limited period before releasing them or arresting them based on the evidence collected. In contrast, if a person is arrested, they can be held in custody until bail is granted or the case is brought to court.
  • When a person is detained, there are fewer opportunities for search than when they are arrested, when police have the authority to search.

What Are Your Rights During Arrest or Detention?

The experience of being stopped by the police can be stressful and go horribly wrong very quickly. Here we describe the criminal law and offer strategies for dealing with police encounters. We want to make this clear, the responsibility for de-escalating is not that of individuals, it is that of police officers. You cannot assume 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 officers may help reduce risk to yourself. Despite their best efforts to put officers at ease, some people still end up injured or killed.

Your rights:

  • You have the right to remain silent. For example, there is no need 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, an officer may arrest you for failing to identify yourself if you do not provide your name.
  • The police may pat down your clothing if they suspect a weapon is present but under the Fourth Amendment, you do not have to consent to a search of your belongings or yourself. You may not be able to stop the officer from performing the search against your will by refusing consent but by objecting as soon as possible before or during the search you may be able to protect your legal rights.
  • In the event that you cannot afford a lawyer, you have the right to a government-appointed attorney.
  • It is not necessary to answer questions about your birthplace, citizenship, or how you entered the country. Please note, different rules apply at international borders and airports, as well as to individuals with certain nonimmigrant visas, including tourists and business travelers.
Also read:What Happens at an Arraignment?

If you are charged with committing a crime, there are lots of different hearings you might have to attend. Going to court in the movie...


Reducing 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.

How to Respond if You Have Been Arrested versus Detained

  • You should request a 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 by police. 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 details you recall, such as the officers’ badges and patrol car numbers, the agency they belonged to, and any other details. Make sure you get contact information for any witnesses.
  • Taking photos of your injuries is a good idea if you are injured and need medical attention.
  • Complain in writing 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 what is happening if you are able to do so at 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 are interacting may have privacy rights that require notification of the recording. It is mandatory in many states to notify people that they are being recorded.
  • A police officer may not confiscate or demand to view your pictures or video without a warrant and under no circumstances may they delete your pictures or video. 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 their 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 illegal. Arresting you is illegal but you must weigh the risks of police 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 agency they came from, how many officers appeared, and their names, any weapons used, including less-lethal weapons like tasers or batons, and any injuries sustained by the suspect. In case the person stopped by police decides to file a complaint or file a lawsuit against the officer, they may find your information helpful if you speak to them after the police leave.
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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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