In a criminal matter, the police may detain or arrest someone.
People often use the terms “detention” and “arrest” interchangeably. However, these terms represent distinct legal concepts, each carrying different implications and rights for the individuals involved. If you encounter the police, however, the distinction between detainment and arrest may become unclear.
Detainment vs. Arrest
Let’s look closer at the nuances that differentiate a detainment from an arrest and the crucial distinctions that can affect your experience within the criminal justice system.
What is Detainment?
A detainment is when law enforcement holds an individual for a short time. Detentions can occur in various contexts, including traffic stops or street encounters. If police detain you, they believe you committed a crime, but they don’t have enough evidence to arrest you.
Police need more than just hunch to detain you. They must have a reasonable suspicion that you committed a crime. It is illegal for police to detain you without reasonable suspicion.
Law enforcement can detain you for a reasonable time without officially taking you into custody, so they can ask questions to determine if there is probable cause that you committed a crime. If they do have enough evidence to meet the threshold of probable cause, they must let you go.
What is an Arrest?
If police find probable cause that you committed a crime, they can arrest you. Arrest is a more severe and formal action taken by law enforcement. It involves depriving you of your freedom with the intent to charge you with a specific crime.
Once arrested, you have certain constitutional rights, such as the right to remain silent and the right to an attorney. When police arrest you, they typically take you into custody and book you into jail.
One primary distinction between detention and arrest lies in their duration. Detentions allow law enforcement to quickly assess a situation. Arrests, on the other hand, involve a longer deprivation of freedom and trigger a legal process that may lead to criminal charges.
Reasonable Suspicion vs. Probable Cause
Reasonable suspicion and probable cause are legal standards that play crucial roles in criminal law. While both standards relate to the legality of searches and seizures, they represent different levels of justification law enforcement officers must use.
Reasonable Suspicion
Reasonable suspicion is a lower standard than probable cause. It refers to the belief that a law enforcement officer has based on specific and articulable facts that lead that officer to believe someone committed a crime. It is often the standard required for a brief investigatory stop or detention. It allows law enforcement to briefly detain a person if they reasonably suspect that the person is, was, or will be involved in criminal activity.
The concept of reasonable suspicion is often associated with the Terry stop, named after the landmark case Terry v. Ohio. This case established that a police officer may stop and frisk someone if they have reasonable suspicion that they are or will be involved in criminal activity.
Probable Cause
Probable cause is a higher standard than reasonable suspicion. It requires more substantial evidence or facts that would lead a reasonable person to believe that a crime has been, is being, or will be committed.
It is the standard required for obtaining a search warrant, making a lawful arrest, or conducting a more thorough search of a person or their property.
In Nebraska, law enforcement officers must adhere to these standards to protect individuals’ Fourth Amendment rights against unreasonable searches and seizures. A court may refuse to admit evidence obtained without meeting the appropriate standard (reasonable suspicion or probable cause).
What Are My Rights After Arrest?
If law enforcement arrest you and ask you questions which could be incriminating, you are entitled to your Miranda rights, which is named after the Supreme Court case Miranda v. Arizona. Here are the fundamental rights you have after an arrest and if law enforcement ask incriminating questions of you:
The Right to Be Informed of Your Rights
A member of law enforcement must tell you your Miranda rights before conducting a custodial interrogation. This includes the right to remain silent, the warning that anything you say can be used against you, the right to an attorney, and the right to have an attorney appointed if you cannot afford one.
Right to Remain Silent
As mentioned in your Miranda rights, you may remain silent, and police cannot compel you to incriminate yourself.
Right to an Attorney
You have the right to an attorney. If you cannot afford one, the court will appoint a public defender to represent you.
Right to Know Charges
You have the right to know the specific criminal allegations against you.
Right to a Speedy Trial
You have the right to a speedy trial, so the government cannot unduly delay bringing you to trial.
Protection from Unreasonable Searches and Seizures
The Fourth Amendment protects you from unreasonable searches and seizures. The court may exclude evidence at trial that was obtained in violation of your Fourth Amendment rights.
Presumption of Innocence
You are presumed innocent unless proven guilty beyond a reasonable doubt.
Right to Refuse Searches
You have the right to refuse to allow law enforcement to search your person, belongings, or property, but police may pat down your clothing if they suspect a weapon on you. You should not physically resist the pat down, but you can refuse consent for further searches. Law enforcement, however, may search you or your property without your permission if they obtain a valid warrant or demonstrate probable cause.
Berry Law’s Team Provides You With Multiple Attorney Perspectives
Knowing the Difference Between Being Detained and Being Arrested: Exercise Your Constitutional Right to an Attorney
John S. Berry , Criminal Defense Lawyer
Criminal charges can result in life-altering consequences. If police arrest you because they suspect illegal activity, you need legal protection and guidance.
The criminal defense lawyers at Berry Law understand what law enforcement can and cannot legally do during an investigation, traffic stop, detainment, and questioning. We work every day to protect our clients’ constitutional rights.
