What is the Difference Between an Arrest vs Detainment?

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December 3, 2017

What is the Difference Between an Arrest vs Detainment?

Being stopped by the police is stressful.  Even when you know you haven’t done anything inherently wrong, the fact that you could have done something wrong and don’t know it is enough to make your blood rush.  A stop triggers your privacy rights under the Fourth Amendment of the Constitution, but not all stops are illegal.  Only unreasonable stops are illegal.  Use what you have (your rights, your voice and intelligence) to reduce your nervousness.  A stop falls into two categories, detainment/detention or an arrest.  When your ability to move forward has been restrained, you have been stopped.  Each type of stop comes with different expectations, therefore it is helpful to determine which one is actually occurring.


When a person is detained, their movement is restricted for a minimal amount of time, generally 10 to 15 minutes in order for the officer to issue a traffic citation.  Being detained is for investigatory purposes.  There is no set time.  The time will depend on how much useful information is provided to law enforcement.  If you provide an officer with helpful information, the officer will stay as long as the information is being provided.

Since a detainment is for investigatory purposes, it’s viewed as a minor inconvenience.  Keep in mind that officers are natural investigators.  It is an essential function of their job duties to monitor, review and identify various facts and circumstances.


Tip #1: You don’t want stops to be confrontational.  Coming to grips with  and acknowledging that an essential function of an officer’s job is to investigate is a helpful point to concede because you can show that you are respecting the officer’s position.


As an essential function of their job duties, they could be terminated for not performing their job functions.  Appearing to understand this job function can have its benefits because you’re not giving up your privacy rights and it’s very little to argue about.

An officer might say they can detain you for as long as they want.  This is inaccurate.  They can detain you for a reasonable time period.  It may be short or long depending on how much continued information is gained from your interaction.


Tip #2: Minimize your communication and movement so additional information is not provided.


An arrest is more formal.  An arrest occurs when there is sufficient evidence to determine that probable cause is present.  At this point, law enforcement has a right to hold you longer.  The ability to hold you for longer periods of time changes once you are arrested.  You can guarantee it won’t be 10-15 minutes.  The officer’s behavior may also change once you are arrested because there is reason to believe you have committed a crime.  The officer may have a particular disdain for certain crimes over others.  Even though the standard is, “innocent until proven guilty”, people have biases.

Understanding the difference between being detained and being arrested, gives you information you can use.  You are primed with questions to ask.  Your questions can help change the narrative during a traffic stop.  Knowing whether you are being arrested or detained arms you with an understanding of timing and the likely hood of making home the same evening.  If you are not being arrested and there is no valid reason for detainment, you are free to leave.


Tip #3: Ask to leave. Don’t just leave.

 Timing of Question

When is the proper time to ask whether you are being arrested or detained?  There are various moments during a traffic stop to ask whether you are being arrested or detained.

  1. At the beginning of the stop- All though asking at the beginning gets the question out of the way, facts and circumstances can change throughout the course of a traffic stop. You may not be under arrest at the beginning but could be under arrest 10 minutes later.
  1. When the officer is asking you to engage in some form of movement (i.e. stepping out of the car)- Stepping out of the car may lead you to ask, “why am I doing this?”.


Tip #4: Don’t immediately ask why.  This will likely cause frustration because you are questioning the officers authority.

           Asking whether you are being arrested is more of a specific question which can lead to a specific answer rather than a generalized question of “why”.


  1. At the end of the stop- Asking at the end can be helpful as a transition away from the traffic stop. If you got to the end of the traffic stop with no concerns, then asking whether you are being arrested doesn’t forward the communication in any meaningful way.  You are already on your way home.

You really want to know whether you are being arrested or detained so you know how to proceed.  If you are being arrested, you need a lawyer.  If you are being detained, then you may have to wait for a reasonable time period.

Tip #5: You may want to consider sitting in silence so you don’t incorrectly communicate something which ultimately has you spending more time with the officer than you would like. 

Asking for both

 A driver might ask, “Officer, am I being arrested or detained”?  Asking for both may not get you the result that you want.  Anytime you are being stopped by the police for a valid traffic reason you are being detained.  The length of time depends on what happens during the stop.  You may not want to waste a question on something you know the answer to.


Tip #6: Don’t be a nag by asking questions you know the answer to unless you are trying to get statements on record.


Ask questions to get vital information.  If you are being arrested, then law enforcement must be under the belief that probable cause exist.  Knowing the difference between an arrest or detention is helpful.  It lets you know how long you can anticipate the stop, whether you need a lawyer and most importantly whether you will be going home.


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