Here are a few basic things to keep in mind whenever you’re dealing with the police.
Thanks to thirty years of cop shows, nearly everyone is familiar with the following sentences uttered by police when arresting a suspect:
- You have the right to remain silent.
- If you do say anything, what you say can be used against you in a court of law.
- You have the right to consult with a lawyer and have that lawyer present during any questioning.
- If you cannot afford a lawyer, one will be appointed for you if you so desire.
- If you choose to talk to the police officer, you have the right to stop the interview at any time.
These are called “Miranda warnings,” based on the case of Miranda vs. Arizona, and they inform suspects of the rights granted by the Fifth Amendment to the United States Constitution. Police are required to provide Miranda warnings at certain points during and after the arrest.
If a person is in custody, the police must read them their Miranda rights if they want to question the suspect and use the suspect’s answers as evidence at trial. The Miranda requirement is only triggered by custody, which means they are deprived of their freedom of action in any significant way. If a person is not in police custody, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. Police officers routinely question suspects after carefully letting them know that they are not under arrest and are free to leave—that way, officers don’t have to provide Miranda warnings.
If the police fail to provide Miranda warnings, the case is not automatically thrown out of court. Instead, nothing a person says while in custody can be used as evidence against the person at his or her trial. Officers must provide Miranda warnings whenever they interrogate someone who is in custody. “Interrogation” includes not only express questioning, but also any words or actions that police officers should know are reasonably likely to elicit an incriminating response.
Stop and Frisk Searches
A “stop and frisk” search occurs when a policeman stops a person on the street and carries out a pat-down search for weapons. Police are permitted to do this whenever they have a reasonable suspicion that you may be engaged in criminal activity. When frisking a person for weapons, police may feel a something other than a wallet, phone or keys, which could trigger a suspicion that you’re carrying illegal drugs, which may turn into sufficient cause for a more intensive search. If that search reveals an illegal substance, the officer may arrest you.
The best advice any lawyer can give is to keep quiet after being arrested until you consult with an attorney. Most people wind up talking, if only to fill the silence. Police are very good at getting people to talk, which often results in someone revealing information that can later be used as evidence against them.
If you’re approached by a policeman, you have the legal right to refuse to answer questions, and if you think you’re a suspect in any sort of crime, you should refuse to answer any questions until after consulting an attorney. This is a constitutional right, and you can’t be arrested for staying silent. However, you should be aware of several exceptions to this rule.
Loitering. Policemen generally have the right to question you if they suspect you of loitering, which is generally defined as “wandering about from place to place without apparent business, such that the person poses a threat to public safety.” If you’re just standing around doing nothing in particular, a policeman can demand identification and ask what you’re doing. If you refuse to answer, you can be arrested for loitering.
Traffic Stops. Another situation in which you may have to answer police questions is when they pull you over for a traffic violation. In that case, they have the right to ask for your driver’s license and registration, and if you refuse, this may trigger an arrest based on the suspicion that you’re driving without a license (along with committing the traffic offense).
Invoking Your Right to Silence
Even if you’ve been given the Miranda warning regarding the right to silence, keeping silent afterwards is not enough to invoke that right. You need to affirmatively state that you’re invoking your right to silence, and have nothing further to say.