The Difference Between Being Detained and Being Arrested By Law Enforcement

Posted by Tab Lawhorn | Sep 07, 2023 | 0 Comments

In encounters with law enforcement, it's essential to understand the distinction between being detained and being arrested. These two terms often cause confusion among the general public, but they carry significantly different implications regarding an individual's rights and the actions that law enforcement can take. As a defense attorney in Texas, I believe that educating individuals about this difference is crucial to protect their rights and ensure they can navigate such encounters knowledgeably. This blog will shed light on the dissimilarities between being detained and being arrested and what rights you have in each situation.

What is Detainment?

Detainment, also known as a "Terry stop" or "temporary detention," occurs when a law enforcement officer stops an individual briefly to question them based on reasonable suspicion that the person is involved in criminal activity. During a detainment, the officer may ask for identification and request information about the individual's activities. Detainment is typically brief and should not extend beyond the time necessary to confirm or dispel the officer's suspicions.

Key Points of Detainment:

  1. No Arrest: Being detained is not the same as being arrested. You are not under arrest during a detainment, and the officer should inform you that you are not free to leave temporarily.

  2. Reasonable Suspicion: Law enforcement must have a reasonable suspicion that you are involved in criminal activity to initiate a detainment.

  3. Limited Duration: Detainment is meant to be brief and should not continue without reasonable cause.

  4. No Miranda Rights: During a detainment, law enforcement is not required to read you your Miranda rights, as you are not under arrest.

What is an Arrest?

An arrest occurs when law enforcement takes a person into custody based on probable cause, which is a higher standard than reasonable suspicion. Probable cause means that there is enough evidence to believe the individual committed a crime. When you are arrested, you are no longer free to leave, and you will be taken to a police station or jail for booking and processing.

Key Points of an Arrest:

  1. Loss of Freedom: Unlike a detainment, you lose your freedom during an arrest. Law enforcement officers can use reasonable force to make the arrest if necessary.

  2. Probable Cause: Law enforcement must have probable cause to believe that you committed a crime before making an arrest.

  3. Miranda Rights: Upon arrest, law enforcement is required to inform you of your Miranda rights, including the right to remain silent and the right to an attorney.

  4. Booking Process: After an arrest, you will be taken to a police station for booking, which includes fingerprinting, photographing, and recording personal information.

Know Your Rights

Understanding the difference between detainment and arrest empowers individuals to protect their rights during encounters with law enforcement. In both situations, it's crucial to remain calm, cooperative, and respectful, but you should also know your rights:

  1. During Detainment: You have the right to remain silent and the right to refuse searches if not accompanied by a valid search warrant.

  2. During Arrest: You have the right to remain silent, the right to an attorney, and the right to have an attorney present during any questioning.

As a defense attorney in Texas, I advocate for the importance of knowing your rights when dealing with law enforcement. Being detained and being arrested are distinct situations, each with its own set of rights and procedures. If you find yourself in either circumstance, it is crucial to remain composed, assert your rights, and seek legal counsel if needed. An experienced criminal defense attorney can help safeguard your rights, ensure due process, and provide you with the best defense possible if you are facing criminal charges arising from a detention or an arrest.

About the Author

Tab Lawhorn

Attorney, Tyler Office Tab E. Lawhorn is a principal partner at Lawhorn & Malouf, PLLC in Tyler, Texas. Mr. Lawhorn represents clients in Tyler and throughout Smith County who are victims of a personal injury caused by negligence. He regularly handles matters involving car wrecks, trucking accidents, wrongful death and premises liability.


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