Detention and Arrest

(510) 903-8090

If you have been arrested in Alameda County, may have come across the terms "detention" and "arrest".  This page explains what those terms mean.

What is the difference between "detention" and "arrest"?

From a legal standpoint, there are numerous differences between "arrest" and "detention".  From a practical standpoint, however, they are virtually the same thing.  For my client sitting on the curb in handcuffs, they feel like EXACTLY the same thing.  Yet, the legal distinctions are important.

A detention is a temporary.  Law enforcement has the authority to detain a person if they have "reasonable suspicion" that a crime has been committed by that person.  They are only permitted to detain a person for as long as is reasonably necessary to investigate the offense they are suspected of committing.  Detentions are also called "Terry stops", named after the seminal case on this point of law, Terry v. Ohio (1968) 392 U.S. 1.

An arrest is not temporary.  Taking a person into custody in the lawfully authorized manner is an arrest. (see PC 834; Wilson v. Superior Court (1956) 46 C.2d 291.)  If law enforcement has "probable cause" to believe that a citizen has committed a crime, they can place that citizen under arrest.

What is "reasonable suspicion"?

Reasonable suspicion is an objective, articulable, set of facts that would make one suspicious that a person has committed a crime.  If reasonable suspicion is present, then a person may be detained by a law enforcement officer.  The purpose of a detention is to give law enforcement sufficient time to investigate whether a crime has been committed by their detainee.

The reason the law permits a detention is logical.  When the police become aware that a crime may have been committed, or may be in progress, they usually do not have all of the facts yet.  Gathering facts and investigating crimes takes time.  If the police could not detain a suspect until they had probable cause to arrest, the suspect could simply run away while the police conduct their investigation.

However, if a citizen is detained longer than is reasonably necessary to investigate the offense they are suspected of, there may be legal grounds to challenge the detention.  A "prolonged detention" is illegal.  Under Penal Code section 1538.5, evidence illegally obtained by law enforcement may be suppressed (i.e., made inadmissible in court).

Example:  Oakland Police are called out on report of robbery that just occurred at the corner 7-Eleven.  The only description of the suspect provided is that he was of average build and was wearing a black hoodie.  Police arrive on the scene within minutes.  Outside of the 7-Eleven, there are four men wearing black hoodies.

Result:  In this scenario, the police have authority to detain all four men for as long as is reasonably necessary to investigate the robbery.

Example 2:  Same robbery investigation.  One of the detained men is ruled out as a suspect by the 7-Eleven worker who was robbed.  Yet, the police still order the man to sit on the curb.  He is not permitted to leave.  After two hours of investigation, the police finally tell the man he may leave.  When he stands up, a cop notices a baggy of cocaine on the ground where the man was sitting.  The man is then placed under arrest for possession of cocaine.

Result:  There is a strong argument here that the detention was prolonged.  The detained man was already ruled out as a suspect, but was still ordered to remain on the scene.  This set of facts should prompt a defense attorney to file a motion to suppress the evidence on the grounds that the evidence was obtained after a prolonged detention.

Detentions are supposed to be as brief as possible.  There are no per se rules that define whether a detention is too long.  To determine whether a prolonged detention has occurred, the court will analyze the totality of the circumstances.  In other words, these issues are decided on a case-by-case basis.

It is not uncommon in Alameda County for law enforcement agencies to detain people longer than they should in order to dig up any kind of evidence they can find.  Therefore, it is important that your Alameda County defense attorney be experienced and knowledgable in this area of the law.

What is "probable cause"?

This question is difficult to give a simple answer to, because the law doesn't provide one.  Every time an officer makes an arrest, the situation is unique. The circumstances that are known to the officer at the time will determine whether there is probable cause to arrest or not.  A quick rule of thumb that many use to assess probable cause is, "Has the person, more likely than not, committed a crime?"

After an arrest, if charges are filed, the court will make a separate determination about whether there was probable cause or not.  For felony charges, this is automatic and happens at the preliminary hearing.

Because probable cause will differ from case to case, most judges look at it as a "you know it when you see it" kind of legal issue.  Here are some examples of situations where most judges would agree that there was probable cause for arrest:

Example 1:  cops see a person late at night in commercial area with high burglary rate, he runs away when he sees their marked police vehicle; as runs, cops see him throw items away; after they catch him, they pick up the items he threw and they turn out to be stolen.

Example 2:  a house is burglarized and the crime scene investigators locate fingerprints; the fingerprints match a person in their database; the fingerprints do not come from anyone who lived there and the residents do not know this person.

What is a "consensual encounter"?

This is when the police ask you what your name is, how you're doing, if you saw the Raiders game, etc.  They do not need to suspect you of any wrongdoing to ask these types of questions.  Naturally, you have the right to refuse to answer, although it might be rude to do so.  Not all police officers are out to just arrest people for the fun of it (although it seems that some are).

Many consensual encounters are harmless and nothing comes of them.  However, a consensual encounter can quickly turn into a detention, or even arrest, or the officer lawfully observes something suspicious.

May I refuse to show ID?

There are certain activities in California that require one to carry ID (e.g., driving).  However, if you are simply out walking around Lake Merritt and an officer approaches you and demands to see your ID, you have the right to refuse.  Note, you may still get arrested anyway.  It wouldn't be a lawful arrest if that is the only thing they arrest you for, but that gets sorted out in court.

If you believe you have been unlawfully arrested for a crime in Oakland, Hayward, Fremont, or anywhere else in the Bay Area, you absolutely must have an attorney represent you in court. Contact us today for a consultation at our Oakland office.

Experience matters

Whether you are looking to take your case to jury trial or just want to get a great plea bargain, our office has the experience to make a big difference. We have handled a wide range of criminal cases from petty theft and DUI, to three strikes, sex crimes, and murder. With our office, you can rest assured that everything is being done to produce the best possible outcome for you.

Put your mind at ease with a free consultation

If you or a loved one has been arrested, you may feel confused, worried, and hopeless. But you do not have to go through this alone. Our office is committed to providing top-notch legal services for those accused of crimes. Call today. Get answers. Take action. You can rest assured that you will be treated with dignity and respect.