Difference between Detention and Arrest

You will often hear the phrase that ‘someone has been detained’ or ‘someone has been arrested’ when referring to detainment of an individual by law enforcement officers. The difference between arrest and detention is an important distinction to make, but it can be confusing because with both situations, they do share 3 very important elements: there is a legal justification for the action taken by law enforcement; there is a limitation of the individual’s freedom of movements, and; they both share the extension of legal authority over a person.[i] Additionally, a detention may eventually lead to an arrest or if done improperly a detention may become a de facto arrest. This confuses the distinction even more. However, there are several key differences between both.

1. Rights

Both arrest and detention do restrict an individual’s freedoms and their movements, but they do have different scopes of individuals’ rights to ensure civil liberty is protected. This is why there are very clear legal limits for officers in each scenario, although in practice these lines can become blurred. When an officer approaches an individual with questions, they are being neither detained nor arrested. They are allowed to do this whether or not they suspect that individual of a crime. But in this instance, an individual has a ‘right of silence’ and is legally allowed to refuse answering any questions. They are not allowed to lie to enforcement officers though; this would be considered obstruction.[ii]

If another scenario, when an officer approaches an individual to ‘stop’ and ask questions, this is sufficient to be considered detained. At this time, they must have suspicion that the individual has committed a crime and if the case goes to court, this must be proven by the officer. At this time, one would be restricted in their freedom of movement, but the officers would not be obligated to tell them what they are suspected of or if there is an intent to arrest. However, if they pull out a weapon or use a show of force, it is usually because they consider the individual to be a suspect. At this point, you may still refuse to answer any questions and remain silent, however, you must provide them with your name, address and date of birth. You may also request an attorney. You may also refuse to give consent for the enforcement officer to search your person, your vehicle or your home if they request it. They may still pat you down for weapons though. If consent is refused, the officer will have to make a legal justification if they continue to search you anyway.[iii]

An arrest is different from a simple detainment in several ways. With an arrest, the officer can hold you longer and transport you to the police station. While you may be stopped and detained simply on suspicion of a crime, an actual arrest can only occur when a state statute, city ordinance or federal law is violated. If this is a minor misdemeanor, you will not actually be arrested unless you refuse to provide your name, sign the citation or have a bench warrant for failure to show to previous court appearances or outstanding fines. The rights of an individual who has been arrested are very clear for legal reasons. You may refuse to answer questions. You have a right to be told the crime you are being arrested for and the nature of the charges. You must also be read your Miranda rights, which are constitutionally granted rights including the right to remain silent, the right to know that anything you do say can be used against you in court, the right to seek and attorney and discuss the case with them, and the right to have access to an attorney even if you do not have the means to pay for it. You also have the right to contact a person to let them know you have been arrested, the right to refuse any physical or chemical tests, the right to be tried in a timely manner, the right to a reasonable bail for certain crimes and the right to have an attorney present for all proceedings.[iv]

2. Types of arrest and detention

With an arrest, there is only one type of arrest and it happens regardless of the crime. This includes minor misdemeanors, misdemeanors, felonies and an outstanding warrant.

With detention, there are several types of legally defensible detentions. The most common would be when someone is suspected of a crime or proven guilty of a crime. However, there is detention called remand, which is when an individual is kept in custody while awaiting their judicial proceedings. There is also immigration detention, which occur when an individual has illegally entered a country without authorization. They are typically detained until they can be deported back to their home country. Detention can also be sought for those individuals with severe mental illness, also called involuntary commitment. This individual would typically be detained by law enforcement until court-ordered treatment is assigned to them by the court system, which can be inpatient or outpatient.[v] There is also preventative detention, which occurs when an individual is detained for non-punitive purposes. It is usually justified in instances when there are health risks to the public, or when it is done in order to protect the individual or others.[vi]

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