Law Office of Michael L. Fell
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Learn About the Precarious Difference Between Detention and Arrest

It sounds strange but it is true: The police can arrest you before saying that you are under arrest – and they sometimes do so unintentionally. Read on to learn how this can be, and what the difference is between being arrested and being detained. Then contact Law Office of Michael L. Fell at (949) 585-9055 for your free legal consultation.

Detention Versus Arrest

Legally speaking, holding a person “briefly and cursorily” to question them is considered detention. For example, if the police see someone who is acting strangely, the police can ask them a few questions. While the suspect is not free to leave, they are not under arrest – unless the police officer develops probable cause to do so.

Arrest refers to the police taking a person into custody in a way that more significantly restricts their movement. For most people this involves handcuffs and Miranda warnings, but not always.

What Does it Mean to Be Brief and Cursory?

The above paragraph may seem simple on the surface but the real complication comes from there being no clear definition of “brief and cursory.” The law says that a detention stop cannot be “longer than necessary” and that police must use the “least intrusive means that are reasonably available.” If the police hold someone too long or too intrusively, then the person may legally be under arrested even if the police have not intended to do so or said so.

The law finds that if a “reasonable person” would believe that the suspect felt they were under arrest, even if the suspect was not formally under an arrest, an arrest has occurred. In some cases, the judge will ask a few questions and decide if a reasonable, innocent person would have felt they were free to leave. If not, then an arrest has taken place.

The Courts Consider Many Factors to Determine Whether or Not an Arrest Has Taken Place

There are many factors the police will consider to determine if a detention has turned into an arrest. They will look at the amount of force used by the police, the manner in which the suspect was handled (for example, if they were put into handcuffs), the need for force, whether there was reason to suspect the victim had a firearm or weapon on their person, how many officers got involved, and how long the stop was.

The Difference Can Be Important

Many may wonder: Does it really make a difference if I was detained or arrested? Yes, it does. The main issue is that if you were arrested, then you have a legal right to get a Miranda warning. If you are under arrested and not given a Miranda warning, then anything you say is not admissible. This can be a deciding factor in a criminal defense trial. If you are not sure if you were arrested or detained, or if you need to talk to a criminal defense attorney for any other reason, contact Law Office of Michael L. Fell at (949) 585-9055 for a free legal consultation.

Law Office of Michael L. Fell - Criminal Defense Lawyer

Michael L. Fell

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No matter how daunting the criminal charges against you may be, the Law Office of Michael L. Fell can provide the aggressive and effective defense representation you need to secure the best possible outcome to the case. We will stand beside you each step of the way, passionately advocating for your rights and protecting your future against the consequences of undeserved or unduly harsh punishment.