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Legal Issues and Criminal Defense: When are you required to talk with police?

Think back to the last time you were pulled over by a police officer or approached by a police officer in public. Did you immediately become nervous? A nervous reaction is common when people are required to interact with law enforcement officers, regardless of whether or not they are obeying the law. Police officers understand that many people have this reaction and they use it to their advantage. In addition, many people think that they have to talk to an officer and answer their questions when asked. This article is intended to shed some light on the rights of citizens when it comes to encounters with the police.

When Does Miranda apply?
I have recently had many conversations with clients who complained that the police never read them their “rights”. In Miranda v. Arizona, the United States Supreme Court held that a person must be informed of the right to remain silent and to an attorney, and that what he says may be used against him any time law enforcement officers question a person who has been taken into custody or otherwise deprived of his freedom of action in any significant way. These are now commonly referred to as “Miranda warnings.” Miranda warnings are only required if the defendant is in custody and subject to interrogation. “In custody” is not synonymous with handcuffs. A person is “in custody” for purposes of Miranda if a reasonable person in similar circumstances would believe he is not free to leave. Typically the officer must exhibit some physical force or show of authority to restrain the liberty of the person. Therefore, if the police do not restrain the liberty or exert some physical force or show of authority, the courts look at the interaction as a consensual encounter. In addition, if a defendant is merely arrested and not questioned by police, then the Miranda does not apply. If a defendant is questioned without being properly advised of his rights, the remedy is that any statements made cannot be admitted into evidence.

There is no obligation to talk with police
There is no law that requires a person to talk to police or assist in their own investigation. Many people understand that they have a right not to testify against themselves during trial; however, do not understand that this right extends to talking with police. The law only requires a person to provide identification, when requested by police. A person does not have to answer any other questions. Typically when an officer performs a traffic stop, he/she will ask the driver a serious of questions. The officer will compare those answers to the information they may already have and make a determination of whether there is reasonable suspicion to believe the driver of the vehicle is engaged in unlawful activity. If the officer believes reasonable suspicion exists, then the officer can legally detain the driver to further investigate. This includes having a K-9 unit perform an exterior sniff of the vehicle to detect the presence of narcotics. However, if reasonable suspicion does not exist, then the officer cannot detain the driver longer that what is reasonably necessary to complete the purpose of the traffic stop. A police officer cannot use silence or refusal to ask questions to satisfy the reasonable suspicion requirement. Therefore, if the person does not answer questions, then the likelihood of the officer finding reasonable suspicion significantly decreases.

Written by:
Russell W. Brown, Jr.
Attorney At Law
9211 Broadway
Merrillville, IN 46410

Posted: 11/12/2013

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