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Detained vs Arrested in New York

Last updated on: January 22, 2024

By Lebedin Kofman LLP

Understanding the difference between being detained and being arrested is essential when facing legal issues in New York. While both situations involve restrictions on your freedom, there are distinct legal implications and procedures associated with each. Knowing your rights and having access to proper legal representation can make a significant difference in navigating the complexities of the criminal justice system.

At Lebedin Kofman LLP, our team of experienced New York City criminal defense attorneys can help you navigate the legal complexities involved with dealing with a detainment or an arrest. We can also help with filing a claim against false arrests and other matters involving civil rights litigation. Learning about the legal differences is essential to protect your rights and ensure that your best interests are protected. To learn more, schedule a free consultation with one of our attorneys today at (646) 663-4430.

Top-Rated Manhattan Criminal Defense Attorneys Discuss the Differences Between Detention and Arrest


Detainment refers to the act of a law enforcement officer temporarily keeping an individual in custody without an arrest, to conduct an investigation, make an inquiry, or prevent an imminent crime. A detainment is a less severe legal procedure compared to an arrest. Most of the time, a detainment occurs when a police officer has reasonable suspicion that an individual may be involved in criminal activity, but they require further investigation before an arrest can occur.

During a detainment, the officer may hold an individual for a limited time and in a specific area. In the United States, for example, the Supreme Court’s ruling in the 1968 Terry v. Ohio case set forth the parameters for the “stop-and-frisk” procedure (also known as a “Terry stop”). This gives officers the authority to detain someone for questioning if they have reasonable articulate suspicion that the individual may be involved in or about to commit a crime.

However, the detainment period must be short, and officers are only allowed to ask questions or conduct a limited search (e.g., a pat-down for weapons) that pertain to their suspicion. Once the suspicion is dispelled or there is insufficient evidence for an arrest, the individual must be released.


An arrest occurs when a law enforcement officer takes an individual into custody, often because the officer has probable cause that the person has committed a crime. This means that the officer has solid evidence that supports their belief that a crime has been committed and the person in question was responsible for it.

During an arrest, the individual’s freedom is significantly restricted, and they are often handcuffed and transported to a police station for booking. Arrests typically require a higher standard of proof than detainments, and officers must read the person their Miranda rights (their legal rights, including the right to remain silent and the right to an attorney) upon arrest.

Unlike detainments, arrests can lead to formal criminal charges and potential consequences such as incarceration, fines, and, ultimately, a criminal record. It is the officer’s responsibility to ensure they have met the appropriate legal standards to make an arrest so that it can withstand later scrutiny in court proceedings.

The legal rights and protections afforded to individuals during detainments and arrests vary depending on the jurisdiction; however, several core rights and protections are generally upheld.

During a detainment, an individual has the right to remain silent, to not provide personal information aside from their identity, and to refuse a search of their belongings or person (unless the officer has reasonable suspicion that the individual is armed). Furthermore, the detainment must not last longer than reasonably necessary for the officer to investigate their suspicions.

During an arrest, the individual has the right to be informed of their Miranda rights, have legal representation, and be informed of the charges against them. The arrested individual is also generally protected from unreasonable search and seizure unless a search warrant has been obtained or the officer has probable cause for the search.

It’s important to understand the distinction between detainments and arrests to better comprehend the legal rights and protections granted to individuals in these situations. The balance between law enforcement’s need to investigate and address criminal activity and an individual’s rights and freedoms is a pivotal aspect of a fair and just legal system.

Reasons for Detainment or Arrest

Law enforcement officers have the power to detain and arrest individuals under certain conditions, primarily when they have reasonable suspicion or probable cause to believe that a crime has been committed. Understanding these concepts and being aware of one’s rights during detention or arrest is essential in ensuring that law enforcement acts appropriately, without infringing on individual rights.

Reasonable Suspicion and Detainment

Reasonable suspicion is a legal standard that allows law enforcement officers to briefly detain someone if they have specific, articulable facts leading them to believe that the person is, was, or will be involved in criminal activity. Reasonable suspicion is less than probable cause but must be based on more than a mere hunch or an individual’s appearance. It must be based on concrete facts and rational inferences from those facts.

During a detainment, individuals have certain rights, including the right to remain silent and refuse to answer questions. It is generally a good idea for individuals being detained to ask if they are free to go and to politely but firmly assert their rights when necessary. An officer can continue the detention only if they develop probable cause during the encounter.

Probable Cause and Arrest

Probable cause is a higher legal standard than reasonable suspicion and is required for law enforcement officers to make an arrest. Probable cause exists when the facts and circumstances known to the officer would warrant a prudent person to believe that a crime has been, is being, or will be committed and that the person to be arrested is involved in the criminal activity. Probable cause typically results from a combination of factors such as the officer’s observations, statements by witnesses, or information obtained from a reliable informant.

If law enforcement officers have probable cause to arrest someone, they can legally take that person into custody and typically transport them to a police station for booking and holding until a court appearance. An individual who is arrested has certain rights, such as the right to remain silent and the right to have an attorney present during any questioning. Moreover, in most cases, officers must obtain an arrest warrant from a judge before arresting someone for a crime, unless the arrest is made in connection with a crime committed in the officer’s presence or when the officer has probable cause to believe that a felony crime was committed.

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How Long Can Police Detain You Without Probable Cause?

Police detainment is a short-term encounter, often used by law enforcement to investigate potential criminal activity. It’s a process that doesn’t require a warrant and is less formal than an arrest. However, the question often arises, “How long can police detain you without probable cause?”

The U.S Supreme Court, in the landmark case Terry v. Ohio (1968), established the parameters for such detainments, also known as “Terry stops” or “stop-and-frisk” procedures. The duration of a detention should be reasonable, typically around 20 minutes, but there’s no specific rule set in stone. The actual length depends on the circumstances of each case.

The principle of reasonableness, judged on a case-by-case basis, is the key factor. Law enforcement can only hold an individual for as long as it takes for them to dispel or confirm their initial suspicion. Once the suspicion is dispelled, or there’s insufficient evidence to justify an arrest, the individual must be released.

During detention, police can only question the individual about their suspicions. They can also conduct a limited pat-down search for weapons if they have reasonable suspicion that the person is armed. This search should not be intrusive and should be restricted to outer clothing.

It’s crucial to remember that police don’t have the right to detain you indefinitely without establishing probable cause. If the detention extends unreasonably without the establishment of probable cause, it could be deemed unlawful, potentially leading to legal consequences for law enforcement and rendering any evidence obtained during such detainment inadmissible in court.

Violation of Rights during Detainment vs Arrest

While law enforcement officers are authorized to detain and arrest individuals when necessary, they must respect an individual’s rights during the process. Violations of these rights may lead to a court dismissing the charges against the accused and holding law enforcement officers accountable for their actions.

During a detainment, officers must respect an individual’s right to remain silent, and they cannot use excessive force when detaining someone. Additionally, officers can only conduct a pat-down search for weapons if they have a reasonable belief that the person may be armed and dangerous. If an officer continues the detention without developing probable cause, the detention may be deemed unlawful, and any evidence obtained as a result may be inadmissible in court.

During an arrest, officers must advise the arrested individual of their Miranda rights before conducting any custodial interrogation. This includes the right to remain silent, the right to have an attorney present during questioning, and the right to have an attorney appointed if the individual cannot afford one. Violating these rights may render any statements or confessions obtained from the individual inadmissible as evidence in court. Furthermore, officers must comply with the Fourth Amendment’s prohibition against unreasonable searches and seizures, meaning that they generally need to obtain a warrant before conducting any searches during an arrest.

Overall, understanding the concepts of reasonable suspicion, probable cause, and one’s rights during detainment or arrest is critical in ensuring that law enforcement conducts themselves within the bounds of the law and that individuals are aware of their rights in these situations.

Duration and Search Procedures

Understanding the duration and search procedures in cases of detainment and arrest is essential for both law enforcement officers and citizens. Knowing one’s rights and limitations within the law can help avoid misunderstandings and unnecessary escalation of the situation. 

Detainment Length and Limitations

Detainment refers to the practice of temporarily holding an individual by law enforcement while they conduct an investigation. Unlike arrest, detainment does not require a warrant and is typically used to determine if there is probable cause for an arrest. The duration of a detention should be reasonable and limited, with courts often citing a maximum time of around 20 minutes, but no specific rule exists. It is important to remember that the reasonableness of detainment length is determined on a case-by-case basis, considering the specific circumstances.

During detainment, law enforcement officers must abide by specific limitations. They can only detain someone if they have a reasonable suspicion to believe that criminal activity is afoot or that the person detained is involved in a crime. Furthermore, officers must restrict their questioning to the reasons for detainment and must not use deception or coercion to facilitate self-incrimination. Additionally, law enforcement cannot conduct a full search of the person or their property during detainment unless they have reasonable suspicion to believe that the individual is armed and poses a danger to the officer or others.

Arrest Procedures and Timeframe

An arrest occurs when an individual is taken into custody by law enforcement due to suspected involvement in a crime. Unlike detainment, an arrest is formal and results in the individual losing their freedom for an extended period. An arrest should be based on probable cause, which is a higher standard than reasonable suspicion required for detainment. Probable cause means that law enforcement has enough evidence to believe that the person has committed, is committing, or is about to commit a crime.

Arrest procedures typically include informing the individual of the reason for the arrest, reading them their Miranda rights, handcuffing, and transporting them to a police station for further processing. Depending on the jurisdiction and the severity of the crime, law enforcement may need a warrant to complete the arrest. The arrest itself should be conducted quickly and efficiently, with the use of force limited to what is necessary to bring the individual into custody safely.

The timeframe for an arrest is not explicitly defined, but it should be completed as soon as possible after law enforcement has established probable cause. Additionally, after an arrest, an individual has the right to a prompt initial appearance before a judge, typically within 48 hours, to be informed of the charges and their rights.

Searches during Detainment and Arrest

During detainment, law enforcement’s ability to search is limited. They can only conduct a “pat-down” search for weapons if they have reasonable suspicion to believe that the individual is armed and dangerous. This search should be limited to the outer clothing and must not be overly intrusive, such as reaching into pockets without cause.

However, during an arrest, the scope of searching expands. Law enforcement may conduct a search incident to arrest, which allows officers to search the arrestee’s person and immediate surroundings for weapons, evidence related to the crime, or contraband. This search is intended to ensure the safety of officers, preserve evidence, and prevent the destruction of contraband.

Duration and Search Procedures in Cases of Detainment and Arrest Details
Detainment Length and Limitations Detainment is a temporary holding of an individual for investigation purposes. Duration is reasonable and case-specific, with no specific maximum time.
Arrest Procedures and Timeframe Arrest is the formal custody of an individual suspected of a crime. Promptness is expected, based on probable cause. Initial appearance before a judge typically within 48 hours.
Searches during Detainment and Arrest Limited “pat-down” search during detainment for weapons if suspicion of being armed and dangerous. Search incident to arrest allows searching the person and surroundings for weapons, evidence, or contraband.

There may come a time during your interactions with law enforcement when it becomes necessary to seek legal assistance. For instance, if you believe your rights have been violated or if you are being charged with a crime, it is wise to consult with a criminal defense attorney.

If you feel that you are being detained without cause or that the officer is acting outside of their authority, it is well within your right to request that a supervisor or another officer be called to the scene.

If you are arrested, you have the right to request an attorney immediately. It is important not to make any statements to the police (beyond basic identifying information) without your attorney present. As the famous Miranda warning states, anything you say can be used against you in a court of law, so it is important to exercise caution when speaking with law enforcement once legal representation is involved.

When interacting with law enforcement, it is important to be compliant, communicate effectively, and assert your rights when necessary. By doing so, you can ensure a smoother and safer encounter with law enforcement officers, while protecting yourself and your rights.

Consequences of Detainment and Arrest

Detainment Consequences

Detainment differs from arrest as it is limited in scope and duration, usually lasting only for a short period and without any formal charges against the individual. However, the consequences of detainment can still have lasting effects on the individual involved.

  • Mental and emotional impact: When a person is detained, they may experience significant stress, anxiety, and fear. This is particularly true if the person is not familiar with the legal process or has a history of negative experiences with law enforcement. The experience of being detained can traumatize individuals, especially if they feel they have been wrongly accused or mistreated during the detainment process.
  • Loss of time: Detainment takes time, and during this period, the individual might miss commitments such as work, appointments, or family engagements. This could lead to conflicts in their personal or professional lives and have long-term consequences, especially if the person is unable to adequately explain the situation.
  • Civil rights concerns: While law enforcement officers must have reasonable suspicion to detain someone, this system is not always perfect, and instances of racial profiling, discrimination, or other civil rights violations may occur. In these cases, individuals may feel disrespected, targeted, or violated, which can lead to feelings of anger and mistrust toward law enforcement and the legal system.
  • Reputation damage: Word of the detainment may spread among friends, family, and colleagues, negatively affecting the person’s reputation and relationships. This may be particularly detrimental if the person was wrongfully detained or if it happens multiple times.

Arrest Consequences

An arrest occurs when a law enforcement officer takes an individual into custody based on probable cause to believe that the person has committed a crime. Being arrested can have more severe consequences than detainment due to the charges typically laid against the person at that time.

  • Loss of freedom: The most immediate and obvious consequence of an arrest is the loss of freedom. An individual who is arrested is taken into custody and may be held at a police station or correctional facility until they can appear before a judge for a bail hearing or trial.
  • Criminal charges: An arrest often leads to formal criminal charges being filed against the individual. These charges can result in various consequences, including fines, probation, community service, restitution to victims, and imprisonment if the person is convicted.
  • Employment issues: Individuals who are arrested may face challenges in their professional lives. Some employers have policies requiring employees to report arrests and may take disciplinary action or even terminate employment depending on the nature of the charges. An arrest can also hinder future job prospects, particularly in careers where background checks or security clearances are required.
  • Social stigma: Being arrested can lead to social stigma and negative perceptions from friends, family, and community members. The person may be viewed as a criminal, regardless of whether they are convicted or not, and face deteriorating relationships, isolation, or ostracism as a result.

Impact on Criminal Record

Whether an individual is detained or arrested, the incident may appear on their criminal record, various databases, or background check reports depending on the jurisdiction and circumstances of the case. A criminal record can have lasting consequences on an individual’s personal and professional life, making it harder to find employment or housing and potentially limiting their civil rights, particularly if they have been convicted of a crime.

In some cases, individuals may be eligible to petition for the expungement or sealing of their criminal records, which can mitigate the long-term impact of detainment or arrest. However, this process can be complex, time-consuming, and not guaranteed, meaning that the original consequences may linger long after the incident has passed.

Speak with a Skilled New York Criminal Defense Attorney from Lebedin Kofman LLP Today

If you find yourself detained or arrested in New York, it is crucial to seek the assistance of an experienced criminal defense attorney as soon as possible. Our team of skilled New York City criminal defense attorneys at Lebedin Kofman LLP can provide valuable guidance, protect your rights, and advocate for your best interests throughout the legal process.

In cases of detention, where you may be temporarily held by law enforcement for questioning or investigation, an attorney can ensure that your rights are respected and prevent any potential violations. They can guide you on how to respond to questioning and advise you on the appropriate course of action.

In more serious situations involving arrest, where you may be taken into custody and charged with a crime, an experienced criminal defense attorney becomes even more vital. They can assess the evidence against you, develop a strong defense strategy, and fight to protect your rights at every stage of the legal proceedings.

By working with a skilled attorney, you can increase your chances of a favorable outcome. They can challenge any unlawful actions by law enforcement, negotiate with prosecutors, and present a compelling defense on your behalf.

Don’t face the complexities of detention or arrest in New York alone. Take proactive steps to protect your rights and secure the best possible outcome by consulting with an experienced Manhattan criminal defense attorney from Lebedin Kofman LLP who can provide the necessary guidance and representation throughout the legal process. Contact us today at (646) 663-4430 to schedule a free consultation.

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