# Legal Dopers - A Question About Detention Vs. Arrest **URL:** \ **Category:** Factual Questions\ **Created:** [July 18, 2013, 4:07am UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812 "2013-07-18T04:07:32Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Zeke\_N.Destroi](https://avatars.discourse-cdn.com/v4/letter/z/4af34b/32.png) [@Zeke\_N.Destroi](https://boards.straightdope.com/u/Zeke_N.Destroi)\ **Post date:** [July 18, 2013, 4:07am UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/1 "2013-07-18T04:07:32Z")
I have commonly heard and read that, in America at least, one should never speak to a cop with being compelled to do so and that, further, if a cop questions you then you can ask if you are under arrest and, if not, are free to walk away. This is possibly (probably) an oversimplification. I was watching a re-run of Cops today during one segment a cop from North Las Vegas put a guy in cuffs and, while walking him to the squad car, said something very close to, “You are not under arrest, I am however, now conducting an official investigation. You are not free to leave.” Keep in mind that the guy in cuffs never asked about whether he was free to go or not. If he did then it was edited out. So my question is, can a cop in any / all jurisdictions forcibly detain someone who is not under arrest. If so, where and under what circumstances? Thanks in advance ---
**Author:** ![LinusK](https://avatars.discourse-cdn.com/v4/letter/l/258eb7/32.png) [@LinusK](https://boards.straightdope.com/u/LinusK)\ **Post date:** [July 18, 2013, 4:13am UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/2 "2013-07-18T04:13:15Z")
Yeah. Cops are supposed to have “reasonable suspicion” in order to detain someone, and “probable cause” to make an arrest. Reasonable suspicion is less than probable cause, and it still means you can’t leave. ---
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [July 18, 2013, 1:51pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/3 "2013-07-18T13:51:55Z")
The only real difference between detain and arrest is that detain has a lower standard of evidence and detainment should be much shorter. You can arrest someone and keep them about one day without charging them with a crime, but you can only detain someone for about twenty minutes. Resisting arrest or detention is a crime and you can be forcibly apprehended for both. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [July 18, 2013, 2:04pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/4 "2013-07-18T14:04:02Z")
We call them ‘Documented Dopers’ now-a-days. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [July 18, 2013, 2:24pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/5 "2013-07-18T14:24:11Z")
> [@Zeke\_N.Destroi](#): > > So my question is, can a cop in any / all jurisdictions forcibly detain someone who is not under arrest. If so, where and under what circumstances? I have this case in my head. Was Richardson under arrest or was it just a Terry Stop? The 4th AM controls, and as long as those strictures are met, individual state law can be stricter if desired by them. > **[949 F2d 851 United States v. Richardson | OpenJurist](https://openjurist.org/949/f2d/851/united-states-v-richardson)** The SC has made it clear that the touchstone of the 4th Amendment is “reasonableness”. A SEIZURE must be reasonable. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [July 18, 2013, 2:27pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/6 "2013-07-18T14:27:59Z")
> [@puddleglum](#): > > You can arrest someone and keep them about one day without charging them with a crime I have seen arraignment times for a few states, if still held in custody that is, at less than that. > [@](#): > > but you can only detain someone for about twenty minutes. I have seen detentions last 2-3 hours that were justified. It is fact specific, see United States v. Sharpe. Now, a prolonged detention can turn into a defacto arrest, even if those magic words are not uttered. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [July 18, 2013, 3:33pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/7 "2013-07-18T15:33:04Z")
My recollection is that while persons can be detained for Terry stops (which are woefully misused as by police as a matter of course), and information elicited by police questioning still counts as custodial and, therefore, is inadmissable in most circumstances if the suspect hasn’t been given his rights. Been a long time since I took Crim Pro, though, so I’m happy to be corrected. –Cliffy ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [July 18, 2013, 3:58pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/8 "2013-07-18T15:58:07Z")
Should be “ **any** information elicited…,” sorry. –Cliffy, again ---
**Author:** ![jtur88](https://avatars.discourse-cdn.com/v4/letter/j/e9c0ed/32.png) [@jtur88](https://boards.straightdope.com/u/jtur88)\ **Post date:** [July 18, 2013, 4:14pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/9 "2013-07-18T16:14:55Z")
> [@LinusK](#): > > Yeah. Cops are supposed to have “reasonable suspicion” in order to detain someone, and “probable cause” to make an arrest. Reasonable suspicion is less than probable cause, and it still means you can’t leave. “Reasonable suspicion” of what? It is my understanding that it needs to be reasonable suspicion that the person has committed a crime, or is in the process of doing so. Can a person be detained under reasonable suspicion that he is, say, a witness to a crime, or knowledgeable about the circumstances of or a suspect in a crime? It is also my understanding that, although they cannot demand identity papers, they can ask you to verbally state your name and your place of residence, compelling you to do that does not constitute detention, and you cannot walk away without doing at least that if requested. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [July 18, 2013, 4:45pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/10 "2013-07-18T16:45:12Z")
> [@puddleglum](#): > > The only real difference between detain and arrest is that detain has a lower standard of evidence and detainment should be much shorter. You can arrest someone and keep them about one day without charging them with a crime, but you can only detain someone for about twenty minutes. Resisting arrest or detention is a crime and you can be forcibly apprehended for both. The courts have never defined a precise time for how long someone can be arrested but not charged, or detained but not arrested. Just a reasonableness standard. Meaning, if you’re arrested and there’s some real reason you can’t be charged in 24 hours, like a meteor hit the courthouse, the cops don’t have to let you go after 23 hours 59 minutes and 59 seconds. If everything is in place, and the cops could charge you, but just don’t feel like it, then less than a day could be too long. Same with detention, if you are detained for a while and the cops are actually conducting the business they needed to detain you for, then fine. If they’re detaining you for fun then any amount of time is too long. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [July 18, 2013, 5:04pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/11 "2013-07-18T17:04:50Z")
> [@Cliffy](#): > > My recollection is that while persons can be detained for Terry stops (which are woefully misused as by police as a matter of course), and information elicited by police questioning still counts as custodial and, therefore, is inadmissable in most circumstances if the suspect hasn’t been given his rights. Been a long time since I took Crim Pro, though, so I’m happy to be corrected. > > –Cliffy See Berkmer v. McCarty and Pennsylvania v. Bruder, NON custodial for purposes of Miranda. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [July 18, 2013, 5:08pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/12 "2013-07-18T17:08:33Z")
> [@jtur88](#): > > “Reasonable suspicion” of what? It is my understanding that it needs to be reasonable suspicion that the person has committed a crime, or is in the process of doing so. Can a person be detained under reasonable suspicion that he is, say, a witness to a crime, or knowledgeable about the circumstances of or a suspect in a crime? Most generally, NO! > [@](#): > > It is also my understanding that, although they cannot demand identity papers, they can ask you to verbally state your name and your place of residence, compelling you to do that does not constitute detention, and you cannot walk away without doing at least that if requested. IF they COMPEL, if we use the word as it’s accepted usage in legal terms, then it IS a detention, see Hiibel v. Sixth Judicial District. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 18, 2013, 5:13pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/13 "2013-07-18T17:13:43Z")
> [@jtur88](#): > > “Reasonable suspicion” of what? It is my understanding that it needs to be reasonable suspicion that the person has committed a crime, or is in the process of doing so. Can a person be detained under reasonable suspicion that he is, say, a witness to a crime, or knowledgeable about the circumstances of or a suspect in a crime? As lawbuff says, no. _Reasonable suspicion_ is shorthand for “reasonable suspicion of involvement in a crime.” ---
**Author:** ![jtur88](https://avatars.discourse-cdn.com/v4/letter/j/e9c0ed/32.png) [@jtur88](https://boards.straightdope.com/u/jtur88)\ **Post date:** [July 18, 2013, 5:33pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/14 "2013-07-18T17:33:04Z")
> [@lawbuff](#): > > IF they COMPEL, if we use the word as it’s accepted usage in legal terms, then it IS a detention, see Hiibel v. Sixth Judicial District. My reading of Hilbel tells me that the police may require disclosure of identity. By “compel”, i mean “suggested by the man with the gun and the badge and the key to the cuffs.” ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [July 18, 2013, 5:39pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/15 "2013-07-18T17:39:54Z")
> [@jtur88](#): > > My reading of Hilbel tells me that the police may require disclosure of identity. By “compel”, i mean “suggested by the man with the gun and the badge and the key to the cuffs.” Hibbel only dealt with a person suspected of an offense, so to answer your quest about your word COMPEL when NOT under suspicion, that is subjective as to what a person feels he needs to do. If the police show such authority and persuasiveness as to induce a person into complying when they do not need to, that CAN be a Seizure. ---
**Author:** ![Zeke\_N.Destroi](https://avatars.discourse-cdn.com/v4/letter/z/4af34b/32.png) [@Zeke\_N.Destroi](https://boards.straightdope.com/u/Zeke_N.Destroi)\ **Post date:** [July 18, 2013, 6:36pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/16 "2013-07-18T18:36:59Z")
> [@lawbuff](#): > > I have seen arraignment times for a few states, if still held in custody that is, at less than that. > > I have seen detentions last 2-3 hours that were justified. It is fact specific, see United States v. Sharpe. > > Now, a prolonged detention can turn into a defacto arrest, even if those magic words are not uttered. In this case the person was not Mirandized. Should detention turn into de facto arrest; a)how is that change in status determined after the fact and b) how does that work with Miranda? > [@jtur88](#): > > “Reasonable suspicion” of what? It is my understanding that it needs to be reasonable suspicion that the person has committed a crime, or is in the process of doing so. Can a person be detained under reasonable suspicion that he is, say, a witness to a crime, or knowledgeable about the circumstances of or a suspect in a crime? > > It is also my understanding that, although they cannot demand identity papers, they can ask you to verbally state your name and your place of residence, compelling you to do that does not constitute detention, and you cannot walk away without doing at least that if requested. In this instance there was a drunk guy with blood on his hands, walking away from a woman with a possibly broken nose and a split lip. Cop cuffed him after buddy explained the blood by saying that he fell. Then the cop said something like “you are not under arrest. I have begun an official investigation. You are not free to leave.” I used the word detention to describe this but perhaps that was a poor choice of words? > [@lawbuff](#): > > See Berkmer v. McCarty and Pennsylvania v. Bruder, NON custodial for purposes of Miranda. For those of us who lack the time at present to read the case can you give a brief synopsis? > [@jtur88](#): > > My reading of Hilbel tells me that the police may require disclosure of identity. By “compel”, i mean “suggested by the man with the gun and the badge and the key to the cuffs.” While maybe not the legal definition, certainly a practical one to avoid intimate acquaintance with truncheons, boots, tazers and bullets 😃 Thank-you all for your considered and on point responses. If there are any Canadian Law-talking dudes that want to chime in on the differences in Canada I’m more than happy to learn more. Zeke P.S. - to whomever said, _We call them “documented dopers” around here_. I only just got that now. Nice one! ---
**Author:** ![Anotheruser1](https://avatars.discourse-cdn.com/v4/letter/a/ee7513/32.png) [@Anotheruser1](https://boards.straightdope.com/u/Anotheruser1)\ **Post date:** [July 18, 2013, 6:46pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/17 "2013-07-18T18:46:04Z")
Law enforcement today versus 30 years ago are a completely different ball game. Corruption is heavily influenced for all officers to detain a person, legal or not, in an attempt to “dig” until they find something incriminating so that an arrest can be made. Once arrested everything they have done up to that point becomes irrelevant because now they have charges that covers probable cause. Tyranny is as strong as ever in the USA today, most just refuse to accept the fact that they are being oppressed. ---
**Author:** ![Zeke\_N.Destroi](https://avatars.discourse-cdn.com/v4/letter/z/4af34b/32.png) [@Zeke\_N.Destroi](https://boards.straightdope.com/u/Zeke_N.Destroi)\ **Post date:** [July 18, 2013, 6:50pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/18 "2013-07-18T18:50:03Z")
> [@Anotheruser1](#): > > …most just refuse to accept the fact that they are being oppressed. Bloody Peasant! ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [July 19, 2013, 3:24am UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/19 "2013-07-19T03:24:36Z")
> [@Anotheruser1](#): > > Law enforcement today versus 30 years ago are a completely different ball game. Corruption is heavily influenced for all officers to detain a person, legal or not, in an attempt to “dig” until they find something incriminating so that an arrest can be made. Once arrested everything they have done up to that point becomes irrelevant because now they have charges that covers probable cause. Tyranny is as strong as ever in the USA today, most just refuse to accept the fact that they are being oppressed. Mighty optimistic or might young to think things were better 30 years ago. I recall an RCMP officer telling a drunk acquaintance of mine that the Canadian Vagrancy Act required him to identify himself, even though it had been declared unconstitutional many years before. Don’t expect olden-days cops were a font of fairness and verisimilitude. (He was a passenger in a car, I was driving and hadn’t touched a drop. He went from passed out - I was sitting funny to avoid sitting in his barf - to argumentative in no time flat, my other friends had to calm him down - but he did not get arrested. ) ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [July 19, 2013, 1:47pm UTC](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812/20 "2013-07-19T13:47:47Z")
> [@Zeke\_N.Destroi](#): > > In this case the person was not Mirandized. Should detention turn into de facto arrest; a)how is that change in status determined after the fact and b) how does that work with Miranda? Quoting from United States v. Sharpe, USSC 1985; A divided panel of the Court of Appeals for the Fourth Circuit reversed the convictions. Sharpe v. United States, 660 F.2d 967 (1981). The majority assume that Cooke “had an articulable and reasonable suspicion that Sharpe and Savage were engaged in marijuana trafficking when he and Thrasher stopped the Pontiac and the truck.” Id. at 970. But the court held the investigative stops unlawful because they “failed to meet the requirement of brevity” thought to govern detentions on less than probable cause. Ibid. Basing its decision solely on the duration of the respondents’ detentions, the majority concluded that **“the length of the detentions effectively transformed them into de facto arrests without bases in probable cause, unreasonable seizures under the Fourth Amendment.”** Miranda is only triggered basically for courtroom purposes. A police officer can ask any question before mirandizing a detainee, pre or post arrest. [Next page](https://boards.straightdope.com/t/legal-dopers-a-question-about-detention-vs-arrest/663812.md?page=2)