Confusion about the difference between being detained and arrested can lead to unnecessary anxiety and mistakes during police encounters. Understanding these terms is crucial as they affect your rights and responses. Misunderstanding can lead to waived rights or inappropriate reactions, complicating your legal situation.

Our blog will clarify these legal distinctions, empowering you to protect your rights confidently and respond appropriately in stressful interactions with law enforcement. When in doubt, contact a Virginia criminal defense attorney for help.

Understanding Detention vs. Arrest in Virginia

Being detained means a police officer temporarily suspends your freedom while they question you or search you or your vehicle. Police have a right to detain you if they have reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur. Detention can occur anywhere, including in a traffic stop or a retail store.

You maintain rights during the detention. This includes the right to say nothing and politely refuse to answer. If you are exercising your right to remain silent, state so clearly and calmly. You are still required to provide your name and ID to the officer if asked.

If a police officer detains you, you should ask the officer two main questions:

• Why are you stopping me?
• Am I free to go?

Be compliant with them and avoid being combative. When you ask if you are free to go, the police officer must decide at that moment if you are being detained. If they say, “No, you are not free to leave…” that makes it far more difficult for prosecutors to question later if you were detained or if it was a consensual encounter in which you “should have known” you had the right to leave.

You also have a right to not consent to a search unless the officer has a warrant. If asked to be searched, clearly, calmly, and in the direction of the officer’s body camera, state that you are not giving them consent to search your vehicle or person. If they search your vehicle without your consent, your lawyer can argue to have any evidence from the search suppressed.

What Does “Arrest” Mean?

Being arrested involves a formal accusation of a crime and the officer physically taking you into custody. Arrests happen when a law enforcement officer has probable cause and believes you have committed a crime. Probable cause is a higher standard than reasonable suspicion. Most often, this leads to being charged with a crime.

Whenever possible, the goal is not to get arrested. However, some arrests are difficult to avoid (e.g., DUIs).

Circumstances and Legality

Understanding the arrest process is quite essential. What you do as a detainee can play a significant role in the outcome of your case.

Can Police Detain You Without Arresting You in Virginia?

Under Virginia criminal law, a police officer can temporarily detain you, briefly interrupting your liberty, to investigate certain criminal activities. Detention is not an arrest. Detentions may include:

• Verifying information about the incident
• Questioning witnesses
• Conducting a search of a person’s body for weapons

Detention should be brief. If the officer believes they have reasonable suspicion, they can detain you.

Can You Be Detained Without Being Told Why?

Yes, a police officer can detain you without providing immediate information about why. This falls under the U.S. Supreme Court’s decision to allow officers to detain a person if the police officer has reasonable suspicion, meaning they have reason to be suspicious a person has been, is, or is about to be engaged in criminal activity.

If the police officer has reasonable information to believe you were involved in a crime, they may detain you and do not need to tell you why immediately.

How Long Can Police Detain You in Virginia?

Detention is a temporary process. A police officer can detain you only as long as reasonably necessary to determine if there is probable cause to arrest you. There is no specific timeframe applicable, but it depends on how long it takes the officer to conduct an investigation.

What Happens After You Are Arrested in the Commonwealth of Virginia?

When you are arrested in Virginia, the following is likely to occur:

• You are taken into custody by law enforcement.
• You are transported to a jail.
• You appear before a magistrate, who determines whether you can be released from confinement pending trial or must remain in jail.

To make that decision, the magistrate will consider:

• Whether the arrested individual is likely to get into more trouble if released
• If the individual is likely to flee or not appear before the court for trial at a later time

In many situations, the magistrate determines the individual can be released pending the trial but will set specific terms and conditions. You may be released with:

• A signature promising to return, called personal recognizance
• An unsecured monetary bond, which means no money is paid at the time but could be owed if violated
• Secured monetary bond, which requires that payment in cash or a corporate surety bond is provided

If you are arrested, avoid being combative and follow instructions. Being cooperative increases the likelihood of getting a reasonable bond.

What Happens After I Hire a Criminal Defense Lawyer?

Hiring a criminal defense lawyer provides several key benefits to many people. Your attorney is likely to help you in the following ways:

• Provide an initial consultation: A conversation about the case and what you could be facing allows you to gain insight into the laws and potential defense strategies available.
• Investigate your case: Your defense attorney gathers all available information about your case and investigates any avenues available to create a defense for you.
• Explain the court process to you: Your attorney provides you with information at each step of the process so you know what to expect and what your legal rights are.
• Attend court hearings with you: Your lawyer will represent you during the legal process.
• Fight the charges: Your lawyer can argue against the charges, potentially sparing you from conviction.
• Negotiate a plea agreement: Your lawyer can argue for a reduced sentence or a plea agreement to mitigate your punishment. Your attorney’s experience negotiating plea agreements could be the difference between a life-ruining sentence and a slap on the wrist.

Your attorney is your ally and trusted resource. However, you have to do your part in this process. Communicate openly with your lawyer. Also, be mindful of what is happening around you after you are arrested. Calls from the jail are recorded, so if you talk about what happened over the phone, the police will likely hear what you are saying and can use that information.

What Are Miranda Warnings?

Miranda warnings are given prior to custodial interrogation, informing them of their constitutional rights. This includes:

• The right to remain silent
• The right to consult with an attorney and have an attorney present during questioning
• The right to have an attorney appointed to you if you cannot afford one

What Are Some Examples of Being Detained?

In the following scenarios, the police must have a justified reason for the detention. This means they must have reasonable suspicion that an alleged offense has occurred.

• Traffic stop: You are pulled over for a traffic violation. You are not under arrest, but the officer has the ability to detain you to ask questions if there is reasonable suspicion of a criminal offense.
• Terry Stop: Officers are not required to provide Miranda warnings when they stop you to ask questions. The officer has the right to conduct a pat down on the outer clothing for weapons only. They may search the reaching area for officer safety without having to articulate reasonable suspicion.
• Public Safety Concerns: You may be detained if a police officer sees you engage in a public safety violation or concern, such as disorderly conduct, public intoxication, or disturbing the peace.
• Investigative Detentions: An investigative detention occurs when an officer must conduct a brief investigation to determine if criminal activity has occurred. The officer may pat you down to look for weapons, and you may be temporarily handcuffed.

Why Clients Choose Randall & Bruch, PC

If you are facing criminal charges, having a law firm to guide you through the legal process is critical. Criminal records impact your future, but our law firm can help protect your rights and minimize costly mistakes.

Testimonials

“RPB law firm was professional and knowledgeable. By following their advice and pre-court preparations, they worked with me to get an adjournment and a successful outcome. I will definitely recommend highly.” — Dione W.

“AWESOME LAW FIRM! They are quick, professional, and extremely dedicated to their clients.” — Sandra D.M.

Know Your Rights Before It’s Too Late

Virginia law is complex, and if you don’t know your rights, you may find yourself making mistakes that could be costly to your future. Being informed about your legal rights is critical.

Randall & Bruch, PC offers a wide range of legal services to help you at every stage of the legal process. Whether you are facing felony or misdemeanor cases, contact your attorney for the support you need. Call us at 757-742-6115 or use our online contact form to schedule an initial consultation.