The McHenry County Criminal Defense Lawyer

(847) 854-7700        

The McHenry County Criminal Defense Laywer

(847) 854-7700        

Being Detained Vs. Being Arrested


In an arrest, a police officer, state trooper, or sheriff restrains your freedom of movement because of your possible involvement in a criminal offense. The arresting officer may take you into custody, or you may be stopped, verbally or physically, for questioning about a crime.

A warrant for arrest is a written order signed by a judge directing the police to arrest the person named in the warrant. If a judge issues a warrant for your arrest, the police may arrest you in your home or in a public place. At the time of your arrest, the arresting officers should inform you they have a warrant and produce the warrant for your review.

Without your consent or extraordinary circumstances, the police cannot arrest you in your home without a warrant. The police can arrest you without a warrant if they have probable cause to believe that you committed an offense in their presence, or when an individual informs an officer that you have just allegedly committed an offense.

You can be arrested for committing a misdemeanor, which is a lesser crime. Some examples of misdemeanors are: disorderly conduct, driving under the influence of alcohol, driving without a valid driver’s license, assault, battery, domestic battery, criminal damage to property, indecent exposure, theft, retail theft, resisting a police officer, stalking, and deceptive practice.

The police can also arrest you without a warrant if they have probable cause to believe that you have committed a felony, a more serious crime, in their presence, or when an individual informs an officer that you have just allegedly committed an offense. Some examples of felonies are: arson, burglary, forgery, kidnapping, armed robbery, murder, possession of stolen motor vehicle, sexual assault, trespass to residence, obstructing justice, possession or delivery of narcotics, home invasion and unlawful discharge of a firearm.

In addition, a citizen, such as a security guard or store owner, may detain you if you have committed, for example, the offense of retail theft, in their presence. In this instance, they must promptly turn you over to the police.

If you are arrested for a felony without a warrant, you are entitled to a prompt hearing (preliminary hearing) to determine whether or not the arresting officer had probable cause (the minimum level of required evidence) to arrest you. However, you may not have an opportunity for a preliminary hearing, where your attorney can cross-examine the arresting officer and challenge the State’s evidence. The State is allowed to avoid a preliminary hearing by submitting evidence, in secret, to a grand jury which will return a bill of indictment against you.

Being Detained Versus Being Arrested:

A police officer may detain a person, without arresting the person, if the officer has articulable suspicion that the person is engaging in criminal activity. For example, a police officer may request identification and conduct a limited search for weapons (for the officer’s safety) if the officer observes a person pacing in front of a closed store late at night. This is called a “Terry Stop.” Or, a store owner or employee might detain a person for a short time if they have a strong reason to believe that the person has stolen or was attempting to steal something from the store.

Resisting Arrest

An arresting officer may use reasonable force necessary to arrest you, but is not permitted to use excessive force or brutality. Even if you are innocent, you should not resist arrest. You risk being injured, and could be charged with the offense of resisting arrest. Even if you are later found not guilty of the charge(s), the arrest was not illegal if the arresting officer complied with the requirements of the law.


Ordinarily, the police must have search warrant before conducting a search. However, after you have been arrested, the police may search your person and the immediate area around you without a warrant. This is known as a “search incident to arrest.” The police may also search, if at the time of arrest, the arresting officer observes contraband. If the arresting officer finds items that are illegal to possess, such as a gun, drugs or drug paraphernalia, at the time of arrest, the arresting officer will retrieve the item(s) and charge you for unlawful possession of the item(s). The arresting officer may also take your wallet, identification, money and other personal items from you at the time of your arrest, for inventory purposes, and maintain the items in a secure place until your items can be returned to you, or used as evidence against you. It is important to verify that all of the items the officer removed from you are inventoried on a written list.

Get the representation  you deserve with Attorney David Franks

Contact FKM&A Law today at (847) 854-7700