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Arrests vs. Detainments vs. Voluntary Encounters . . . When am I Free to Leave?

Writer's picture: Roland SwansonRoland Swanson

The Fourth Amendment of the United States Constitution provides, in part, the right for citizens to be protected from unreasonable searches and seizures. Because normal, everyday interactions between citizens and law enforcement often involves some form of detention, it is important to know the difference between the different types of detention and what is considered permissible under each.

 

ARREST

 

An arrest occurs whenever there is a “seizure” of the person. This seizure can by actual physical restraint (e.g., placing a person in handcuffs) or by a totality of circumstances that would leave a reasonable person to believe they are not free to leave or terminate their interaction with law enforcement. An arrest results in an individual being formally taken into custody.

 

Generally, there are two ways in which arrests can be made: (1) by an arrest warrant; or (2) by a finding or determination of probable cause.

 

  • Arrest Warrants – An arrest warrant authorizes or allows officers to enter any place wherein the accused is reasonably believed to be present. The officer’s entrance is permissible through an arrest warrant, even if a separate search warrant does not exist. However, an arrest warrant must be supported by: (1) an indictment; or (2) a complaint, which states sufficient facts to show or otherwise support a probable cause finding wherein the person arrested or identified is reasonably believed to have committed the criminal offense described within the complaint.


  • Probable Cause – The overwhelming majority of felony arrests are made without a warrant. Most arrests are instead made by a probable cause determination of the arresting officer. Probable cause is generally defined as a reasonable ground to suspect that a person has committed or is committing a crime. Pursuant to the Fourth Amendment of the United States Constitution, probable cause must amount to more than mere suspicion or speculation. Reasonable, articulable suspicion must be present meaning the officer must be able to explain and justify their suspicion with specific facts.


An arrest is the most restrictive type of detention or interaction that exists between an individual and an officer. It is also normally the first step in an individual’s involvement with the criminal justice process.

 

DETAINMENT

 

Detainment is not as restrictive as an arrest but is more restrictive than a voluntary encounter. A detainment is generally short in nature and provides law enforcement with the opportunity to perform a brief investigation to determine whether a crime has occurred.  

 

Detainment During a Traffic Stop

 

Both drivers and passengers can be lawfully required or ordered to exit a vehicle and sit in a patrol car. Such instruction is not considered to constitute detainment, nor does it violate an individual’s Fourth Amendment rights. To the same extent, law enforcement is also authorized to require a driver to provide identification and question individuals regarding their destination and purpose for their trip.

 

What is not authorized during routine traffic stops, however, is a detainment that is longer than necessary for the officer to conduct a reasonable investigation of the traffic stop. To lawfully continue the traffic stop, an officer is required to obtain additional probable cause or reasonable suspicion that criminal activity is afoot. Detention beyond a length of time reasonably necessary for an officer to complete their issuance of a traffic ticket will generally be considered a violation of an individual’s Fourth Amendment constitutional rights against unreasonable searches and seizures.

 

Detainment During a Pedestrian Stop


Whenever an officer or law enforcement official performs an investigatory stop of a pedestrian, such encounter must not last longer than necessary. The necessary amount of time required to perform an investigative stop is usually based on an objective standard, as opposed to a subjective standard. An objective standard is based on facts and evidence while a subjective standard is based on characteristics such as feelings, opinions, and/or emotions. As such, courts will generally turn to the totality of circumstances in determining whether the length of the detention was proper.

 

Similar to a traffic stop, the duration of an investigatory pedestrian stop can extend if an officer or law enforcement official discovers additional suspicion, that is both reasonable and articulable, that criminal activity is afoot.

 

Knowing When to Stop

 

Although an officer or law enforcement official is authorized to detain an individual while conducting a traffic or pedestrian stop, the officer is not authorized to detain the individual indefinitely. For both traffic/car and pedestrian stops, once the lawful purpose of the stop has been completed, further detention of the individual(s) can become unconstitutional or otherwise illegal. This is known or referred to as an officer effectuating the purpose of their stop. Absent additional reasonable, articulable suspicion that criminal activity is afoot, justifying an extended detention, the officer is required to let the individual go free.

 

For example, imagine an officer pulls a driver over for speeding. The officer approaches the vehicle and requests the driver’s identification, registration, and insurance information. Additionally, the officer questions the driver as to where they are going and why they are going there. Not observing any illegal items or further infractions in plain view, the officer returns to his patrol car to run the driver’s personal information and write a traffic ticket. After the investigation of the driver’s information fails to reveal any warrants or anything justifying continued detention, the officer returns to the vehicle to hand the driver their speeding ticket. After handing the ticket over, the officer then proceeds to engage in further inquiry of the driver based on nothing more than a hunch or guess that something is wrong. The officer then instructs the driver to step out of the vehicle and performs a search of the driver’s body. While searching the driver’s pants pocket, the officer discovers drugs inside a cigarette carton. The officer then places the driver under arrest for possession of a controlled substance.

 

The discovery of drugs on the driver will likely be deemed illegal or unconstitutional because once the officer handed the driver the traffic ticket, the driver should have been permitted to leave. Instead, the officer continued his detention by asking additional questions and instructing the driver to exit his vehicle. In order to take these additional steps, the officer must have developed reasonable, articulable suspicion (not just a mere hunch) to justify the continued detention which, in this example, the officer did not.

 

VOLUNTARY ENCOUNTERS

 

Whenever an encounter between an individual and law enforcement is such that the person is free to disregard the encounter and walk away, there is no arrest nor detainment. This type of interaction is commonly referred to as a voluntary encounter. Voluntary encounters occur without an individual’s movement being restricted or the person being placed in handcuffs. A simple way an individual should be able to determine whether their interaction with law enforcement is voluntary or not is by asking the officer if they are free to leave. If the response is “yes,” the interaction is most likely a voluntary encounter.

 

Of an important note, however, is that if reasonable suspicion is gathered during an officer’s interaction with an individual, that interaction can change from a voluntary encounter to a detention or even an arrest.

 

THE SWANSON LAW FIRM IS HERE TO HELP


Due to the fact each type of interaction varies in meaning and carries different requirements and implications, it can be crucial for someone who has been charged with a criminal offense to contact an experienced and knowledgeable criminal defense attorney to ensure their interaction with law enforcement was proper and protect their interests and rights moving forward in the criminal justice process. If you or a loved one have been charged with a criminal offense, contact us today to schedule your free consultation.

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