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Detained Arrested Difference

“The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu (2002) 534 U.S. 266, 273, citing United States v. Cortez (1981) 449 U.S. 411, 417; Terry v. Ohio (1968) 392 U.S. 1, 9.

In People v. Soun (1995) 34 CA4th 1499, 40 CR2d 822, the court clearly spelled out constitutional standards for permissible detentions and arrests:

Any police restraint of the liberty of an individual either by physical force or by an assertion of authority to which the individual submits, in circumstances in which a reasonable person would have believed he or she was not free to leave, will constitute a state “seizure” of the individual within the meaning of the Fourth Amendment. Such a seizure is normally characterized as either a “detention” or an “arrest.”

The distinction can be significant, inasmuch as the constitutional standard for a permissible detention “is of lesser degree than that applicable to an arrest”

A detention “‘may be undertaken by the police’ if there is an articulable suspicion that a person has committed or is about to commit a crime”, while probable cause for arrest is said to exist only “when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.” Thus in assessing the constitutional propriety of a seizure of the person it is essential initially to determine whether the seizure was a detention, or was an arrest, or was both a detention and, subsequently, an arrest.

If you have questions about detained arrested difference, contact San Diego Criminal Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Attorney