Detention Vs Arrest

Criminal Defense Lawyers

It is very important to note the difference between being detained and being arrested. Understanding the difference between these two is not entirely easy but can be very critical to your case. If you or someone you know has been arrested based merely on evidence that was found due to a law enforcement officers’ reasonable suspicion as opposed to probable cause, it is likely that this evidence will be inadmissible in court according to our friends at The Lynch Law Group.

When you are being questioned by a police officer, which is when you are in holding for “briefing”, this is considered detention. For example, if an officer enters a parking lot and happens to see two individuals arguing and based on reasonable suspicion, approaches them to ask a few questions, though you are not free to leave you are not under arrest until the officer has probable cause to arrest you.

When you are arrested, you will be taken into police custody which typically includes handcuffs, being informed of your arrest, and the reading of your Miranda rights.

There are different elements that determine when a detention has escalated into an arrest:

  • The need for police force,
  • Suspicion of suspect being armed,
  • And the length of the stop, amongst several other factors

The restraint of a suspect is often a key factor but does not always clearly indicate an arrest. If a person is being placed in handcuffs, this does not mean they are arrested. This restraint is sometimes influenced to ensure the safety of others. There have even been instances where excessive force, handcuffing, and placing a suspect in the back of a police car had to be done in order to continue a search.

If you are stopped by a police officer in public, and for a short while questions are asked and there is no transporting to another location, this is detention. So long as the police officer has reasonable suspicion to stop you or your loved one for questioning, this is fine. Reasonable suspicion occurs when there is reason to believe someone has been involved in or was soon to be involved in a crime.

When probable cause is had, law enforcement officers are able to arrest individuals. This person will not be able to leave at this time, unless it is by the actions of the police officers when they take the suspect into their custody. Probable cause is found when conditions lead a police officer to think someone has been involved in or will be involved in a crime. Once an arrest is made, officers have more freedom to search an individual or their things just so long as they have reason to believe there has been a potential crime.

If you have trouble understanding the difference between the two and feel your rights have been violated, it is best to speak with a skilled criminal defense attorney that can educate you of your rights and make sure you have an understanding of the law.

Welts, White & Fontaine, P.C.

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29 Factory Street Nashua, New Hampshire 03060
Telephone: (603) 883-0797 | FAX: (603) 883-8723 | [email protected]

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