From the Incident through the System Legally: Knowledge Base of Legal Concepts

California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update: January 16, 1999
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DETENTION V. ARREST

A detention is a lesser intrusion upon the individual's privacy than an arrest. But what actually is a detention? A detention, from the word "detain," is a limit on the person's freedom by temporarily preventing his leaving. How much can you "limit" someone before you detain her? Where is the "bright line"? That line that once you cross over it, you have in fact detained someone? Good legal question. There is no definitive answer.

If a policeman walks up to you on the street and asks, "May I ask you a few questions?", have you been detained? The courts do not all agree on this one. All depends on the circumstances. In one federal case a judge argued in a dissenting opinion that any person of color approached by any white policeman would not feel free to say "no," and would, consequently, be "detained." Generally, the argument is that if you consider that a detention, then you take from the policeman the right of any citizen to ask a simple question of a stranger.

Consider the importance of the social context to this question. Suppose a man in a dark blue suit walks up to you and asks, "May I ask you a few questions?" in the airport at the site of a plane that has just arrived from Colombia. Are you detained? Do you feel that you can say "no," and walk away? Kind of depends on who you are, doesn't it? So this is a tough question where you have to consider the entire context. Technically, it's a detention if your freedom to walk away has been curtailed.

Nonetheless, a detention, preventing your leaving, asking you questions, is still much less than arresting you with the consequences that implies. An arrest means you are under official control. You may not leave the area at your will. A pat down search for weapons may be conducted if apparently necessary, and you will be booked. Clearly, the question is one of degree.

The courts require less substantiation of reasonable grounds to detain than to arrest. The Terry stop, [Terry v. Ohio], is a good example. The grounds the police gave for detaining suspects in Terry were that it was late night in a small shopping center, stores closed, car parked in shopping mall lot, several men standing around the car talking. The court ruled that was sufficient in Terry for the police officer to detain, that is stop the men to ask them for an explanation of their presence there. Those circumstances were not sufficient probable cause for arrest. The importance of this distinction is that once someone is detained they may be so fearful that they will engage in further suspicious behavior, try to run away, lie about their car registration, which police can check, give a false name, which police can also check, all of which may then add up to probable cause for arrest.

It is important to remember the distinction between detention and arrest when a private citizen arrests another private citizen. Review the requirements for such an arrest. Mere suspicion is not enough. And private citizens have no right to detain.

There is an interesting derivative of the detention concept that is particularly linked to shoplifting. The merchant, and by extension, his agents, the security guards, are given the right of detention for a reasonable period of time under reasonable circumstances if they have observed someone shoplifting their merchandise. The purpose is to permit quick recovery of their merchandise, and the right to detain is strictly limited. See the concept, merchant's privilege, in this guide.

In Cervantez v. J.C. Penny Co., Inc. (1979) 24 Cal.3d 579, 156 Cal.Rptr. 198, 595 P.2d 975, the Court discusses the distinction between the merchant's privilege and an arrest:

"Extension of the privilege to include the right of a merchant to arrest for a misdemeanor upon probable cause would effectively eradicate the clearly intended statutory distinction between the authority of a peace officer and of a private citizen to effect an arrest for a misdemeanor. [Footnote omitted.] It would also upset the delicate balance struck in Collyer [Collyer v. S. H. Kress Co. (1936) 5 Cal.2d 175, 54 P.2d 20] between the individual's right to liberty and the property owner's right to protect his property. A privilege to detain was deemed sufficient to protect the property owner's private interest in preventing the theft of his property (see also People v. Zelinski, supra, 24 Cal.3d at p. 364, 155 Cal.Rptr. 575, 594 P.2d 1000), whereas a privilege to arrest a person who had not in fact committed an offense in the merchant's presence solely on the basis of probable cause would constitute a substantial further encroachment on the individual's right to liberty. . . . "Although the line may at times be a fine one, there is a well-settled distinction in law between an arrest and a detention. A detention is a lesser intrusion upon a person's liberty requiring less cause and consisting of briefly stopping a person for questioning or other limited investigation. (See Dawkins v. City of Los Angeles (1978) 22 Cal.3d 126, 132-135, 148 Cal.Rptr. 857, 583 P.2d 711; In re Tony C. (1978) 21 Cal.3d 888, 892-896, 48 Cal.Rptr. 366, 582 P.2d 957.)"

Footnote 5, Cervantez, supra.