Do I Have To Answer Questions If I am Stopped by the Police?
No, you don’t, not under any circumstances. But note this twist that surprises some people: the safer you feel, the more likely you are to incriminate yourself. So, what should I do if I am stopped by police? I’ve discussed this before, but it merits fine tuning.
Not Under Arrest:
If you are stopped by police and talk to them and you are free to leave—such as if you are not in a squad car or police station, or if you have been told you are not under arrest or are not a suspect in a crime—what you say to the police can be used against you without a prior Miranda warning or an opportunity to have your lawyer present.
Under Arrest:
Once you’re under arrest or “in custody,” the police cannot use what you say against you unless you have been Mirandized first and told that you have a right not to speak and to have an attorney present. The basic distinction between whether you are or are not under arrest is whether you are free to leave.
But it is not illegal for the police to allow you to feel free to leave so you will talk to them–then they arrest you five minutes later. In a case the Minnesota Supreme Court released today, Alfunda Scruggs was told he was a witness in a murder, not a suspect, so, even though he was kept in a locked interrogation room at the police station for an hour and then questioned in that locked room, the court ruled that he was not in custody and did not have to be told of his Miranda rights. He should have known he could leave.
Yes, Scruggs was probably guilty. But the Innocence Project has achieved exonerations in over 300 cases of people who were wrongly convicted and later proven innocent by use of DNA. On average, the wrongly convicted spent nearly 14 years in prison. Eighteen had been sentenced to death.
It happens.
I Got a DWI. When Was I Under Arrest? What Should I Do?
Most of my clients tell me that they were not given their Miranda warning until long after they were stopped by the police. In a “typical” DWI, the suspect will be stopped, questioned in the car (“have you been drinking tonight?”), given field sobriety tests (heel-to-toe walk, follow the pen with your eyes), handcuffed, placed in the squad car, driven 20 minutes or so to a police station, and questioned some more before being Mirandized. Anything you say during this process can and will be used against you even though you were not advised of your right to remain silent or to have a lawyer, because you were not under arrest yet (even the handcuffs do not constitute arrest if the police say that the handcuffing was “for officer safety”).
Don’t talk to police without your lawyer present.
Chris,
Police are not in the business of sorting things out. They’re in the business of arresting people. There’s a reason that the Miranda Warning says that what you say “can and WILL” be used against you, not “can and MAY BE.” I’ve never read a police report for a DWI for example that didn’t say “slurred speech and strong smell of alcoholic beverage” when the client spoke. If you speak to a cop and the conversation isn’t recorded you have no idea what he’ll say you said later. Finally, false confessions are an extreme example of what happens when people talk to police. http://www.barrysedwardslaw.com/2011/06/false-confessions/. More often, statements you make to police, whether recorded or not, can AND WILL be used against you.
The thing that you fail to understand is that your advice will be misinterpreted by the vast majority of the general public. Most people that are stopped by the police are questioned briefly and released because the police are able to determine that no action is required. If they refuse to answer questions, the police (if they have some suspicion) are not able to alleviate their suspicion and are then forced to further detain the subject. If you have done something unlawful, you don’t have to self incriminate, but if you have done nothing wrong it only serves to escalate the situation if you refuse to communicate in an open and honest manner with the law enforcement personnel that are attempting to obtain information.
The other way that failure to communicate with police makes matters worse is where people refuse to give information because they don’t want to be involved. They witness an event that is under investigation such as an assault and yet they claim that they have seen nothing or refuse to comment at all because they are afraid of the police due to bad advice like yours. If you have done nothing wrong, the police are there to help. Their purpose is to protect the population as a whole and investigate crimes to apprehend the guilty. It is the responsibility of the court to make final determination of guilt base on evidence collected and assign punishment. Some individual officers lose sight of this, but to give people bad advise such as yours only interferes with the proper operation of the system.
Chris,
Here’s a great vid about why talking to the police is very problematic: https://www.youtube.com/watch?v=6wXkI4t7nuc