When you’ve been stopped by the police, it can be difficult to know what is happening – or whether you’re free to leave. That’s by design. Are you just being questioned? Are you being detained? Are you actually under arrest?
The distinction matters more than you may realize, because there are different legal standards the police have to meet depending on what’s happening.
Detention vs. arrest: How to draw the distinction
In general, being detained isn’t the same as being arrested, but it may not feel that way at first. Here are the main differences:
- The reason: A detention allows police to briefly investigate suspected criminal activity, while an arrest means that the police are taking someone into custody based on evidence of their involvement in a crime.
- The legal standard: Police only need reasonable suspicion, the lowest possible standard of evidence, to detain someone. An arrest requires probable cause to believe that you have committed a crime.
- Miranda rights: The police are not required to read you the Miranda warning against self-incrimination and informing you of your right to an attorney when you are merely briefly detained and asked questions, such as at a traffic stop. They do have to read you your rights when you are arrested before interrogation.
- Duration: Detention is short, and officers may only hold you long enough to ask a few questions and check a few facts. Arrest involves much more time and you will generally be taken to a stationhouse or jail for processing.
- Searches: The police may be able to perform a limited search, such as a pat-down to check for weapons, when you are detained. A much broader search can be done incident to an arrest.
- Right to counsel: If you are arrested, you have the right to an attorney, including a public defender if you cannot afford to pay for a private lawyer. That is not true for detention.
These differences can become important when determining whether police acted within the scope of their authority and the law. If officers detained you without legal justification or arrested you without probable cause, that can provide an avenue for defense. Evidence obtained as a result of an unlawful stop or arrest may sometimes be suppressed, meaning that the prosecutors can’t use that evidence against you at trial.
The police use intimidation as a weapon, but you can fight back with the help of a skilled defense attorney.