Detained vs. Arrested: Understanding the Difference and When Your Right to Counsel Applies

In Arizona, it's essential to understand the distinction between being detained and being arrested, especially if you find yourself involved in a police investigation. Although both situations involve interactions with law enforcement, they have different legal implications—particularly regarding your rights, such as the right to legal counsel.

Detained: What It Means

A detention occurs when law enforcement temporarily restricts your freedom of movement in order to investigate potential criminal activity. Unlike an arrest, a detention is typically brief and does not involve formal charges. This commonly occurs during a Terry stop, where police may stop and question you based on reasonable suspicion that you may be involved in criminal activity.

During a detention:

• Police can ask questions and request identification.
• They may frisk you for weapons if they believe you are armed.
• The interaction should be brief, lasting only long enough to confirm or dismiss their suspicions.

Key Point: During detention, police do not need probable cause—only reasonable suspicion—to temporarily hold you.

Arrest: The Legal Threshold

An arrest is a formal action that results in your being taken into custody. It occurs when police have probable cause to believe that you have committed a crime. Probable cause means there is sufficient evidence to reasonably conclude that a crime has been committed, and you are likely involved.

When you are arrested:

• You will be taken into custody.
• Police must inform you of your Miranda rights, including your right to remain silent and your right to an attorney.
• Police may attempt to question you, but you are not obligated to answer without legal representation.

Once under arrest, any attempt to leave or resist may result in additional legal consequences.

When Does the Right to Counsel Apply?

The right to legal counsel is a fundamental protection, but its applicability depends on whether you are being detained or arrested.

• During Detention: In general, you do not have the right to an attorney during a brief detention. However, you are not required to answer questions, and you can request that any questioning cease until you have consulted with a lawyer.
• During Arrest: Upon being placed under arrest and subjected to custodial interrogation, your Miranda rights must be read to you. This includes your right to an attorney. Once you request legal counsel, all questioning must stop until your attorney is present.

Pro Tip: If you are uncertain whether you are being detained or arrested, politely ask, "Am I free to leave?" If the answer is "no," you are likely either detained or under arrest, and you should promptly invoke your right to legal counsel to safeguard your rights.

Why This Matters

Knowing whether you are being detained or arrested can significantly impact how you navigate interactions with law enforcement. By understanding when your right to counsel applies, you can better protect your rights and ensure fair treatment under the law.

If you or a loved one has been detained or arrested, it is critical to seek legal advice as soon as possible. At Chuck Franklin Law, we have over 37 years of extensive experience in criminal defense and are here to protect your rights every step of the way. Contact us today for a consultation.