Can I Be Detained Without Also Be Arrested?

Any time you see the red and blue lights of a police cruiser come on in your rear view mirror, or are approached by the police for questioning, a dozen questions go through your mind. You might be wondering if you will be arrested, and if so, how you will defend yourself. Or, you might have concern over whether certain things you say will come back to haunt you later, and the thought of exercising your “right to remain silent” could cross your mind. Being arrested brings up all of these thoughts, and more, but what if you are not actually arrested and only detained?

The questions surrounding detention generally center on how long you can be detained, without an arrest, before you are allowed to be on your way. While the police do have the authority to detain you without actually making an arrest, there are some guidelines. For example, if you are pulled over for speeding, it is reasonable to expect that you will not be permitted to drive off until the officer finishes writing the citation. But, if you were detained longer than you believe was reasonable, you might consider the following:

• The initial reason for the detention. If the police detained you longer than was necessary to perform the initial reason for the stop (e.g. running a red light), the detention may be improper.
• New reasons for a detention. If, however, the police observed or suspected a new offense (e.g. smelling marijuana after conducting a traffic stop for running a red light), they continued detention may be okay.
• Whether a reasonable person, in your situation, would have felt free to leave. In many cases you are free to go, once the officer tells you that you can leave. In other cases, a reasonable person would have felt they could leave. And, in some circumstances, no reasonable person would have felt free to leave. Any time you voluntarily agree to hang around, you will be hard pressed to argue you were kept without reason.

The facts of each case are different, so you have to develop a defense that fits the specific circumstances of your case. When you believe you have been unlawfully detained, you have to show that you believed you were not permitted to leave without the officer’s consent and that no reasonable person in your situation would have felt free to leave. We can help by examining the factors present in your case and coming up with a defense that makes sense for you.

If you have questions about arrests, call our office for answers. Call an experienced criminal defense attorney in Key West.