Detained vs Arrested: Probable Cause Explained

detained vs arrested

There is an often misunderstood but crucial aspect of criminal law: the difference between being detained and being arrested. Understanding these legal distinctions and the role of probable cause can be vital if you ever find yourself in a situation involving law enforcement officials. Join us as our Raleigh criminal defense attorneys offer valuable insights into the differences between being detained vs arrested in North Carolina.

Being Detained in NC

Detainment is a legal process during which an individual is temporarily held by law enforcement for questioning or investigation. Detention is different from arrest, although many people mistakenly use both terms interchangeably. When you are detained, you are not free to leave, but you have not necessarily been formally charged with criminal conduct. Law enforcement may detain you if the officer believes that you are involved in criminal activity or have information about a crime.

Your Rights When Detained

Even though you are not under arrest, you still have rights when you are detained, including:

  • Miranda Rights: Law enforcement must inform you of your Miranda rights before questioning you, including the right to remain silent and the right to an attorney.
  • Reasonable Treatment: You should be treated respectfully and without any use of excessive force.
  • Limited Duration: Detainment should not extend beyond a reasonable period needed to complete the investigation.

Duration and Limitations of Detainment 

In NC, the duration of detainment is limited by the Fourth Amendment of the United States Constitution, which protects against unreasonable searches and seizures. Being detained by law enforcement should be brief and only last as long as necessary for the investigating officers to determine if there is enough evidence to proceed with an arrest.

Being Arrested in NC 

Arrest is a significant legal process that involves the deprivation of an individual’s freedom due to allegations of criminal offense. Arrest is the legal act of taking a person into police custody based on probable cause to believe that the person has committed a crime. It involves the physical restraint of an individual’s freedom and is typically carried out by police officers.

Your Rights When Arrested

When you are arrested in NC, you retain certain constitutional rights, including:

  • Miranda Rights: Law enforcement is required to read you your Miranda rights, which include the right to remain silent and the right to an attorney. Anything you say can be used against you in court.
  • Presumption of Innocence: You are presumed innocent until proven guilty in a court of law.
  • Protection from Excessive Force: Law enforcement is not allowed to use excessive force during the arrest.

Procedures and Protocols During Arrest

The NC criminal process following arrest includes specific procedures to ensure fairness and protection of rights:

  • Probable Cause: Law enforcement must have probable cause, meaning a reasonable belief that a crime has been committed and you were involved, before making an arrest.
  • Warrant Requirement: While arrest warrants are often obtained before an arrest, if law enforcement has probable cause, they can make a warrantless arrest.
  • Notice of Charges: You must be informed of the charges against you when you are arrested.
  • Physical Restraint: Law enforcement can use reasonable force to make an arrest and ensure compliance, but excessive force is prohibited.
  • Searches: Law enforcement may conduct a search of your person and immediate surroundings upon arrest, but searches without a warrant are limited by the Fourth Amendment.
  • Booking Process: After arrest, you will be taken to a police station for the booking process, which includes recording your personal information and the details of the arrest.
  • Initial Appearance: In NC, you are entitled to an initial appearance before a judge, typically within 48 hours of arrest. During this appearance, the charges against you are formally presented, and bail may be set.
  • Bail and Release: In NC, after your initial appearance, you may have the opportunity to post bail, which is a financial guarantee that you will appear in court for your scheduled hearings. If you cannot afford bail, you may request a bail hearing to argue for a lower amount or other release conditions.
  • Legal Counsel: It’s highly recommended to consult a criminal defense attorney as soon as possible after being arrested. An attorney can provide legal advice, protect your rights, answer questions, and guide you through the legal process.

What is Probable Cause? 

Probable cause is a fundamental legal concept that refers to a reasonable belief that a crime has been committed or that a specific individual is involved in criminal activity. It is a standard of evidence that falls between mere suspicion and certainty, and it plays a crucial role in law enforcement procedures for being arrested or detained.

Importance of Probable Cause in Law Enforcement

Probable cause acts as a safeguard against arbitrary arrests and unreasonable searches. It ensures that law enforcement officers have a reasonable basis to take action against an individual. Without probable cause, individuals’ Fourth Amendment rights, which protect against unreasonable searches and seizures, could be violated.

Probable Cause and Detainment

In the context of detainment, law enforcement officers must possess a reasonable suspicion that an individual is involved in criminal activity to temporarily restrict their freedom.

Scenarios for Detainment Probable Cause include:

  • Suspicious Behavior: If an individual’s behavior is suspicious and suggests possible criminal activity, law enforcement might have enough probable cause to detain them briefly for questioning.
  • Witness Descriptions: If a reliable witness provides information linking an individual to a crime, it could establish probable cause for detainment.
  • Reasonable Inference: If law enforcement can reasonably infer from available evidence that an individual is connected to a crime, detainment may be justified.

Probable Cause and Arrest

For an arrest, a higher standard of probable cause is required. It involves more substantial evidence and a stronger belief that a crime has been committed and the individual is responsible for it. Probable cause for arrest must be based on facts and circumstances that would convince a reasonable person that the individual likely committed the crime.

Differences Between Detainment and Arrest

​​Detainment and arrest are two distinct legal concepts that involve the temporary restriction of an individual’s freedom by law enforcement. While both involve a level of restraint, there are key differences between the two in terms of their purposes, legal requirements, and implications.


The primary purpose of detainment is to allow law enforcement to briefly restrict an individual’s freedom for investigation or questioning purposes. It is often used to determine if there is reasonable suspicion or probable cause to proceed with further action, such as arrest. The purpose of arrest is to take an individual into custody based on probable cause to believe that they have committed a crime. An arrest signifies a higher level of suspicion and involves more substantial legal implications than detainment.

Detainment requires a lower standard of suspicion than arrest. Law enforcement needs only reasonable suspicion, which is a belief based on specific, articulable facts, that an individual might be involved in criminal activity. Arrest requires a higher legal standard—probable cause. Probable cause entails a reasonable belief, based on credible evidence and facts, that a crime has been committed and the individual arrested is likely responsible.


Detainment is usually of short duration and is intended to last only as long as necessary for initial questioning or investigation. It is a temporary restriction on an individual’s freedom. Arrest involves a longer duration of custody. After arrest, an individual may be taken to a police station, booked, and held until bail is posted or a court appearance is scheduled.


Detainment typically does not result in formal charges or a criminal record. It is a preliminary step to gather information and assess the situation. An arrest results in formal charges being filed against the individual. It carries legal consequences and can lead to court proceedings, potential penalties, and a criminal record.

Use of Force

Law enforcement may use reasonable force to detain an individual for investigative purposes, but excessive force is generally not justified. Law enforcement is permitted to use reasonable force to effectuate an arrest, but excessive force is subject to legal scrutiny.

Rights and Procedures

Individuals being detained retain some rights, such as the right to remain silent and the right to an attorney, but these rights are not as extensive as those afforded to individuals under arrest. When arrested, individuals are read their Miranda rights, which include the right to remain silent, the right to an attorney, and the understanding that anything they say can be used against them in court.

What to Do If Detained or Arrested in NC

Knowing what to do if detained or arrested in North Carolina is crucial to protecting your rights and ensuring a fair process.

  • Remain Calm: Stay composed and avoid any aggressive behavior. Cooperate with law enforcement, but remember that you have the right to remain silent.
  • Ask If You’re Free to Leave: Politely ask the officer if you are being detained or if you are free to go. If you’re being detained, ask the reason for your detention.
  • Invoke Your Rights: If you’re detained or arrested, you have the right to remain silent. Politely inform the officer that you wish to exercise this right. You can say something like, “I choose to remain silent. I would like to speak to an attorney.”
  • Provide Basic Information: You may need to provide your name, address, and identification, but avoid discussing the details of the incident without an attorney present.
  • Document Details: If possible, try to remember the officers’ badge numbers, patrol car numbers, and any details about the encounter. This information could be useful later if you need to file a complaint or defend your rights in court.
  • Contact an Attorney: As soon as possible, request the opportunity to contact a criminal defense attorney. If you don’t have an attorney, ask for a public defender.

Have You Been Detained or Arrested in NC? Contact Our Criminal Defense Attorneys Today

Have you found yourself in a challenging situation involving detainment or arrest in North Carolina? The legal process can be complex and overwhelming, but you don’t have to navigate it alone. Our experienced criminal defense attorneys are here to provide the guidance, support, and expertise you need during these difficult times.

Contact us today by calling (919) 239-8448 or filling out the contact form below to get started.



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