Detained vs. Arrested: What’s the Difference?

Updated December 15, 2023
8 min read
Detained vs. Arrested: What’s the Difference?

In legal terms, there are significant differences between being convicted vs detained. Common law dictates that investigatory detention refers to holding someone while a suspicious situation is being checked out. When the detention continues beyond a specific time limit, it can be considered an arrest.

Whereas, in comparison, an arrest is 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 time (longer than detention), be transported to the police station or another location (subject to the right to a state-provided attorney) 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 or even as severe as assault or possession of cocaine. If 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 convicted.

What Is Detention?

Detention happens when a person’s freedom is curtailed due to physical restriction or when the state restricts their freedom of movement by force or pressure. Detention may have serious legal repercussions and impede or limit their ability to contact a lawyer or be assigned a state-provided attorney.

Purpose of Detention

Legal requirements for detention

A recent or continuing criminal offense the detainee is accused of committing must be the basis for the detention. The police must know about the criminal charges being alleged. Suspicion by itself is insufficient to justify detention.

Police obligations upon detention

People being detained have the right to counsel or a criminal defense attorney, barring any legislative exclusions. Even if an officer eventually plans to make an arrest, they are still allowed to interrogate someone without informing them of their right to counsel in the absence of detention.

Sufficiency of belief

Investigatory detention or an investigatory halt may be permitted when the police have a good faith belief that the suspect is involved in a crime. The police officer is not allowed to make an arrest when the grounds for their suspicions are not objectively plausible and reasonable.

Duration of power

According to current law 2023, a person may only be detained for investigations if judged reasonably under all the circumstances. Depending on the nature of the situation, what is necessary will vary based on multiple factors, such as:

  • The intrusive nature of the detention;

  • The nature or severity of the offense;

  • The investigation’s complexity;

  • Immediate concerns about public or individual safety;

  • Whether the police can continue the investigation without detention arrest;

  • Police negligence;

  • Investigative tools not readily available;

  • Police having information about the suspect or crime; and

  • Whether the detention was proportionate to the circumstances, including its geographical and temporal scope.

What Is an Arrest?

People frequently believe that being detained and arrested is equivalent to criminal law. But what is the difference between arrest and detention?

While both situations include dealing with the police, an arrest entails being accused of a crime, while a detention just involves a brief police interrogation. Being arrested often implies being handcuffed, having your Miranda Rights read to you, and being taken into incarceration based on criminal charges. However, the circumstances of why a person is being arrested may differ.

When an officer has probable cause, there is good evidence supporting their suspicions that the subject has committed a crime. Probable cause must typically be established before the police arrest, search, or get a warrant, as the Fourth Amendment requires. An arrest may be made if law enforcement witnesses someone committing a crime in their presence. For instance, police can arrest you if they pull your car over for a traffic stop, and they can see that you are intoxicated.

When someone is arrested or detained, certain procedural requirements apply. Meanwhile, the police also have the power to place you under arrest if they get a warrant from a court. Police must, however, submit a formal affidavit to a court in order to get a warrant, indicating that there is sufficient proof of the criminal charges being alleged. In some situations, the police may request a warrant over the phone for the arrest.

Purpose of arrest

When an arrest occurs, the purpose of the restraint is to either hold the person or to prevent him or her from committing an offense.

Before interfering with individual liberty in the form of arrest or detention, certain prerequisites must be met in both common-law and civil-law jurisdictions. Suppose there is probable cause to believe that a criminal offense has been committed and that the person of interest is probably guilty. In that case, 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 crimes or are attempting to do so 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 a charge 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. Often, 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

Now, we are clear on the legal definitions of arrest and detention. Let’s compare the salient characteristics between these two terms.

  1. When someone is confined briefly during an ongoing inquiry, it is called official detention;
  2. A suspect may be detained if there is a reasonably valid reason to believe that he/she is a suspect;
  3. During detention, an officer is not compelled to recite a person their Miranda rights;
  4. A detained person can only be kept in custody for a short time without official criminal charges;
  5. Detention has no impact on a person’s criminal history.
  1. An arrest is taking a person or restricting them to legal custody due to a criminal charge;
  2. A warrant and strong proof are frequently needed for an arrest;
  3. After an arrest, police are not compelled to give the suspect their Miranda rights. However, if authorities want to question the person who was arrested, they must let them know of their right to representation and remain silent;
  4. When the police arrest someone, they keep them there until bail is approved or a court hearing is scheduled;
  5. The arrest is recorded on the person’s criminal history.

What Are Your Rights During Arrest or Detention?

When the police stop you, it can be a tense situation that could go wrong.

To be clear, it is the job of the police officers to defuse a situation, not the person involved. Yet, even after declaring your rights, you cannot always expect an officer to behave safely, respect them, or resist arrest. Reduce the danger to yourself by remaining composed and refraining from acting aggressively toward the officer. Despite their best attempts to reassure cops, some regrettable incidents nevertheless result in injuries or fatalities, especially today.

Below are your primary rights that you should always remember:

  • You have the 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 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.

  • If you cannot afford a lawyer due to your economics, you have the right to a state-provided attorney for your criminal 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 and to individuals with certain nonimmigrant visas, including tourists and business travelers.

Can I Refuse the Search of My Property?

Private individuals are shielded against arbitrary searches of their properties by the Fourth Amendment. Police officers are prohibited from legally searching someone or their property without a court’s written consent under the Fourth Amendment when looking into probable criminal behavior. Additionally, evidence gathered through unauthorized searches is not admissible in court.

Without a warrant, police cannot search your house or your possessions, although there are a few exceptions.

Consensual search

Police may search a person’s property without a warrant if the person freely and willingly consents to the search without being deceived or pressured. You have the right to object to an investigation, but the police are not required to tell you that.

In most cases, if two or more tenants are living together, one tenant cannot provide their agreement to search for parts of the property belonging to another tenant. However, a tenant has the option to allow a search of a home’s standard rooms, such as the living room or kitchen.

The Supreme Court also declared that a person cannot consent to a search of a home on behalf of a spouse and that a landlord is not permitted to provide consent to the pursuit of their tenant’s items. However, an employer might agree to a search of the workplace, which may include an employee’s workspace but not their possessions.

The plain view doctrine

Without a search warrant, the police may enter your house if they observe an unlawful activity and take evidence accordingly. The articles must still be illegal, though, according to the police’s standard of proof.

Search incident to arrest

To search in conjunction with an arrest, police do not require a warrant. The police have the legal right to protect themselves after an arrest by looking for weapons, potentially damaging evidence, or co-conspirators in the crime. Say a person is arrested for possession of cocaine; the police may search your home, car, or body for additional drugs.

If they believe dangerous accomplices are hidden in a building or facility, the police can perform a protective sweep. They are legally permitted to go around the property, look for potential hiding spots for conspirators, and seize any visible evidence during the search.

Exigent circumstances

Police may search without a warrant if they believe that the time it would take to get one would endanger public safety or result in the destruction of evidence i.e., exigent circumstances. For instance, if it seems likely that evidence is being destroyed, if a suspect is attempting to flee, or if someone is being hurt, the police may forcibly enter a property. The necessity for a search warrant is superseded by the police officer’s obligation to protect society or preserve evidence, make an arrest, or detain a suspect.


To summarize our discussion of arrest vs detention, these two terms have several critical differences. To put it simply, police need only have a reasonable suspicion to place someone in a person’s custody. Still, they need probable cause to lawfully arrest someone on certain criminal charges.

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Frequently Asked Questions

What happens if I’m detained?

The police can take one of two actions depending on what they discover during their investigation and interrogating the person in custody. They can free the person if they conclude that there is no reason to believe that a crime has been committed. Additionally, if the police believe there is probable cause, they may elect to make the arrest. The detention would not appear on the person’s record as an arrest.

What happens if I’m arrested?

After an arrest, someone is brought into custody. They are booked at the neighborhood police station, where their fingerprints, photos, and demographic data are entered into the agency’s database. Unlike detention, the arrest will also be recorded in the individual’s criminal history. If they are legally charged, they will also be imprisoned and given a court appearance date.

Do I have the right to remain silent?

After a detention or arrest, law enforcement personnel are not obligated to inform a person of their rights (unless the person is being questioned), but the person has the option to keep silent at all times.

How do I exercise my right to silence?

It is necessary to state explicitly that a person is exercising their right to remain silent. Individuals are free to remain silent during interrogation without being punished if they do so. It’s important to remember that staying silent protects you from saying anything that could be used against you later.

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