Police Questioning of People Who Haven’t Been Taken Into Custody
1: Can a police officer stop me on the street and question me even if I have done nothing wrong?
Yes. Even if an officer has no reason to suspect that you have done anything wrong, the officer can approach you to ask questions, ask to search you or ask to search any objects in your possession (such as luggage).
As long as the officer doesn’t say or do anything to suggest that you are legally compelled to answer questions or consent to a search, the officer hasn’t done anything wrong. (U.S. v. Drayton, U.S. Sup. Ct. 2002.)
However, as explained in the next question, you usually don’t have a legal obligation to
answer police officers’ questions and you have a right to refuse officers’ requests to conduct searches.
2. Am I legally obligated to answer a police officer’s questions?
No. Refusing to answer a police officer’s questions is not a crime. Of course, people often do voluntarily assist the police by supplying information that might help the police make an arrest.
But the Fifth Amendment to the U.S. Constitution guarantees the right to silence. A police officer generally cannot arrest a person simply for failing to respond to questions.
3. Can I walk away from a police officer who is questioning me?
Unless a police officer has “probable cause” to make an arrest, or a “reasonable suspicion” to conduct a “stop and frisk, a person has the legal right to walk away from a police officer. However, at the time of the encounter, there is no real way to tell what information the officer is using as a basis for his or her actions.
In fact, an officer may have information that gives him or her a valid legal basis to make an arrest or to
conduct a stop and frisk, even if the individual is, in truth, innocent of any wrongdoing. If that is the case, an officer may forcibly detain an innocent individual who starts to leave the scene of an interview.
Common sense and self-protection suggest that people who intend to walk away from a police officer make sure that the officer does not intend to arrest or detain them. A good question might be, “Officer, I’m in a hurry, and I’d prefer not to talk to you right now.
You won’t try to stop me from leaving, right?” If the officer replies that you are not free to leave, you should remain at the scene and leave the issue of whether the officer had a legal basis for detaining you for the courts to determine at a later time.
4. If I start to answer a police officer’s questions, can I change my mind and stop the interview?
Yes. You can halt police questioning at any time merely by indicating your desire not to talk further.
5. A police officer told me that if I didn’t answer the officer’s questions I’d be arrested for loitering. Is that legal?
In certain circumstances, it may be. Laws in many states define loitering as “wandering about from place to place without apparent business, such that the person poses a threat to public safety.” Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person’s activities.
If the person fails to comply, the officer can arrest the person for loitering. Therefore, the refusal to answer questions is only a problem if the officer has also observed the person to be loitering.
6. An officer who pulled me over for a traffic offense said that I’d be arrested if I didn’t supply identification. Is this legal?
Yes. Traffic offenses such as speeding and unsafe lane changes are generally classified as infractions, for which drivers are given citations in lieu of arrest. However, an officer has the right to demand personal identification—usually a driver’s license and the vehicle registration.
A driver’s refusal to supply the information elevates the situation to a more serious offense, for which the
police officer can arrest the driver. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.
7. An officer pulled me over for suspicion of drunk driving and questioned me about where I’d been and what I’d had to drink. Can I be arrested for refusing to answer these questions?
No. An officer has the right to conduct a field sobriety test of a suspected drunk driver. But the driver has the right to refuse to answer questions.
In such a situation, the validity of an arrest would depend solely on the person’s driving pattern and performance on the field sobriety tests.
8. If I don’t have to answer questions, does this mean I can sue a police officer for trying to question me?
No. Even in the complete absence of probable cause to arrest or suspicion to conduct a stop and frisk, police officers have the same right as anyone else to approach people and try to talk to them. Of course, if the person refuses to talk, the officer must stop.
9. Doesn’t a police officer always have to read me my “Miranda rights” before questioning me?
No. A “Miranda warning” essentially advises people of their constitutional right to not answer questions and to have an attorney present if they do decide to talk to police officers.
But the Miranda warning is required only if the person being questioned is in custody. This means that statements by a person not in custody may later be used against the person in court even though no Miranda warning was given.
10. A police officer wants to question me about a crime I know I didn’t commit. Can I harm my own interests by talking?
Quite possibly. It is often perfectly sensible and socially desirable for innocent people to cooperate in a police investigation. However, they should be aware of the risks. Here are several important questions to ask yourself before agreeing to a police interview:
a. Even if I haven’t done anything wrong, how sure am I about the events that the police officer is asking me about?
Unfortunately, people who haven’t done anything wrong are sometimes mistakenly accused of crimes.
Equally unfortunately, these same innocent people may unwittingly add to the evidence against them if they talk to police officers before they are prepared to do so. Individuals who are unprepared to talk about certain events may become confused and answer incorrectly, especially when confronted by police officers.
These individuals may then want to change what they’ve said to “set the record straight.” But the police (or a judge or jury) may regard the change of story as itself suspicious and indicative of guilt. Thus, even individuals who want to cooperate with police officers ought to make sure that they have a clear recollection of the events about which the officers are asking. Individuals who are unsure of what to do should at least ask the officer to return at a later time.
b. Might the police learn about any unrelated crimes I have committed as a result of the interview?
People may talk to police officers because they are confident that they can demonstrate that they are not involved in the crimes that the officers are investigating. However, they may unwittingly disclose information implicating themselves in other criminal activity.
c. Will previous contacts I’ve had with the police possibly lead them to distort what I say?
People who think that they may be police targets (perhaps because of past criminal records) should be especially careful about voluntarily talking to a police officer.
Police officers sometimes distort people’s oral statements, either because the officers are lying or because they have heard only what they want to hear. By repeating in court only part of a person’s statement or changing a few words around, a police officer may make an innocent remark seem incriminating.
d. How knowledgeable am I about the law governing the events about which I’m being questioned?
People sometimes unwittingly provide evidence of their own guilt because they inaccurately believe that their behavior does not amount to criminal conduct.
They may think they are explaining their innocence, while the police officers are using their explanation to amass evidence of a crime.
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