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Detain Vs Arrest

Detaining Meaning

Being detained is a legal term for someone with authority, typically a law enforcement officer, who is holding or keeping someone in temporary custody. The detained individual is not under arrest however, they are not free to leave. Officers must have a reason to believe (reasonable suspicion) that the individual they have is involved in violating a crime, traffic infraction, violation of laws or regulations. Law enforcement officers are not the only profession with authority to detain someone. Loss prevention, security guards and other alike professions could prevent a shoplifter from leaving the premise. Many large corporations such as target, Walmart, or shopping malls choose to limit their workers; having them not use force if the suspect resists or takes off to reduce civil lawsuits.

An example of an individual being detained is as follows; is if there was a shoplifting that happened at the local grocery store, and they give out a description of the suspect and state that they walked east on water street. An officer then responds to water street and observes an individual matching the description of the suspect, so they pull over and detain the individual to investigate the incident. The officer then begins to ask basic questions such as were you at the local grocery store and did you take anything? The individual denies being at the grocery store. In the meantime, another officer goes over to the grocery store, looks at the video, takes a picture of the suspect from the video and then sends it over to the officer on seen with the detained individual. The officer on scene looks at the photo and can clearly see that they are not the same individual, so they tell them they are free to leave, and the officers continue to search for the actual suspect. In the above scenario, the individual was not free to leave, but they were also not arrested or charged with a crime.

Arrest Meaning

When law enforcement officers have probable cause that someone or a group of individuals acting together (Joint venture) have committed, are committing, or in some cases are going to commit a crime, they are subject to arrest. An arrest warrant issued by a judge will give officers more authority, such as going into someone’s home to arrest them. Check out our article on breaking probable cause down and the arrest function. When an individual is placed under arrest, this means that they are officially being charged with a crime. Taking someone into “custody” at the police department, asking them questions, and releasing them without any charges is more of a fictional portraying in movies/crime shows. Absent serious terrorist crimes or false arrest, the only way to keep someone in custody for committing a crime is if they are being officially charged. Officers can’t bring an unwilling murder suspect into an interrogation room, make them wait six (6) hours before detectives begin asking questions, and then releasing them when officers don’t have enough probable cause. Officers must adhere to the rights afforded to the suspect by both the constitution and their individual state.

Miranda Warnings When Detained?

When officers are questioning someone who has been detained they do not have to provide them their Miranda warnings. Miranda Warnings are a set of warnings law enforcement officers must advise a suspect/defendant of, when the circumstances rise to a minimum level. The basics of the Miranda warnings are to advise suspects of their rights not to self-incriminate themselves and to an attorney. There is a two (2) pronged test to determine whether Miranda warnings should be provided, custody and questioning.

Detained: Questioning for Miranda Warrnings?

Questioning is as simple as it sounds. If an officer is questioning you about the case, then that would satisfy one of the  two elements of Miranda Warnings. The officers can however ask you unrelated topics such as sport teams, kids, work while waiting for the scene/investigation to clear up.

Detained: Custody for Miranda Warnings?

Although on the face of being detained you are not free to leave, the courts do not consider it to rise to the level of custody. This means, if you are simply pulled over or stopped on the street, you would not be entitled to Miranda Warnings. There are certain times when an individual is not being charged with a crime but would be considered in custody and are looked at on a case-by-case basis. An example is if an individual meets a detective at the police department pertaining to an open investigation. The detective does not advise him of his Miranda rights, tells him he is not free to leave, shuts the door, and then begins questioning him, and subsequently arrests him. A reasonable person would feel as though they are not free to leave and are in the custody of the police as it has been made clear by the detective.

Key difference between detaining vs arresting someone - Conclusion

Just because someone is being detaining doesn’t mean they are under arrest or are going to be arrested. You can be detained for a variety of reasons with many of them resulting in nothing more than your release. Determining when someone goes from being detained to being arrested is actually a quite important determination. Many defensive lawyers motion to dismiss a case or statements based on the fact that their client (Defendant) was arrested and was not properly advised of their Miranda Warnings mentioned above.

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By Branden

Branden is a Police Lieutenant who has investigated numerous crimes. He has written and executed multiple search warrants, conducted various protective sweeps, pat frisks and exit orders. He has been involved in numerous police vehicle chases, fights, disturbances, foot pursuits, suspect/hostage negotiations and felony stops. He is trained with an assortment of weapons. He has spoken with countless victims, witnesses and suspects and is using his experience to better protect our communities and loved ones by sharing his knowledge through his writings.

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