A detention is a brief stop where an officer temporarily limits your freedom to look into something, while an arrest is the officer taking you into custody under the law. The line between the two matters: an arrest can lead to booking, a record, and formal charges, while a detention that ends without an arrest generally should not.

California law defines an arrest as taking a person into custody as the law allows, and a separate section says how an arrest is made.

Penal Code 834 says: "An arrest is taking a person into custody, in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person." Penal Code 835 describes how it is carried out: "An arrest is made by an actual restraint of the person, or by submission to the custody of an officer. The person arrested may be subjected to such restraint as is reasonable for his arrest and detention." So an arrest requires either physically restraining you or your submission to an officer's custody, done in a way the law allows.

What is a detention, and how is it different?

A detention is shorter, less formal, and does not by itself put you into custody the way an arrest does.

Officers use a brief stop to look into a situation, such as asking questions about what happened, without going as far as taking a person into custody under Penal Code 834 and 835. California law itself recognizes this difference after the fact in at least one place: when an officer arrests someone and then releases them because there are not enough grounds for a complaint, or after delivering them for drug treatment, mental health care or social services with no further proceedings wanted, Penal Code 849(c) says "the arrest shall not be deemed an arrest, but a detention only." The firm's answer on whether a release once sober is still an arrest explains which releases that rule covers and what it means for your record.

When can police arrest you without a warrant?

An officer needs one of a specific set of grounds to make a warrantless arrest, not just suspicion that something might be wrong.

The firm's guide to Penal Code 836 covers those grounds, including an offense committed in the officer's presence or probable cause to believe the person committed a felony, in more detail than fits here.

Does a store or security guard "detaining" you work the same way?

No. A merchant's power to hold a suspected shoplifter is a separate, narrower privilege under a different statute, not the same as a police detention or arrest.

The firm's answer on store detentions covers what a store can and cannot do before police arrive, including how that power relates to a private person's arrest.

Why this difference matters for you

Whether an encounter was a detention or an arrest can affect whether you have an arrest record, what an officer was allowed to do, and what happens next.

An arrest that leads to charges moves toward arraignment, the first formal court date. The firm's answer on what happens at a California arraignment covers that next step. A detention that an officer ends without an arrest generally should not create the same record, though the specifics depend on what was written down and why the stop happened. If you are unsure which one happened to you, that is a good first question to bring to a lawyer rather than guess from memory.

Frequently asked questions

Can an officer search me during a detention?

What an officer can search during a brief stop depends on the specific facts of that stop and is a separate legal question from whether the stop itself was a detention or an arrest. Ask a lawyer about the specifics of your situation.

Does a detention go on my record?

When police arrest and release someone without filing charges, Penal Code 851.6 requires a certificate describing the event as a detention and says references to it as an arrest must be deleted from the arresting agency's and the Department of Justice's records.

How long can police detain me before it becomes an arrest?

There is no single fixed number of minutes in the statutes covered here that converts a detention into an arrest. What matters is whether the officer has taken you into custody under Penal Code 834 and 835, not the clock alone.

Can I be arrested without being told I am under arrest?

Penal Code 835 makes an arrest a matter of actual restraint or submission to an officer's custody, not of particular words. But Penal Code 841 requires whoever makes the arrest to tell you of the intention to arrest, the cause and the authority, unless there is reasonable cause to believe you are in the act of an offense or are being chased right after one or after an escape.

What should I do if I think I was arrested, not just detained?

Ask directly whether you are under arrest or free to leave. If you are under arrest, booking and a court date may follow, and it is worth contacting a lawyer before answering further questions.

Is a traffic stop automatically a detention rather than an arrest?

A traffic stop often starts as a brief detention, but it can turn into an arrest if the officer develops the grounds for one, such as those described in Penal Code 836. The two are not mutually exclusive over the course of one encounter.

Talk to a lawyer

The Law Offices of David S. Chesley offers a free consultation, is available 24/7, and offers payment plans. Se habla español. Call (800) 755-5174 or use the contact page to talk about what happened during your stop and what it means for your case.