Even if an officer has no reason to suspect that you have done anything wrong, the officer can approach you to ask questions and ask to search you or objects in your possession (such as a purse or briefcase). As long as the officer doesn’t suggest that you are legally compelled to talk or agree to a search, the officer has done nothing wrong (U.S. v. Drayton, U.S. Sup. Ct. 2002). At the same time, you are generally not required to answer a police officer’s questions or allow a police officer to search your person or your belongings.
Can I Walk Away?
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 know what information the officer is relying on. In fact, an officer may have information that provides a valid legal basis to make an arrest or to conduct a stop and frisk, even if the person stopped is actually innocent of any wrongdoing. In that situation, an officer may forcibly detain an innocent person 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 should first 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 the necessary legal basis to detain you for the courts to determine at a later time.
Must the Officer Read Me My Miranda Rights?
A “Miranda warning” is required only if a suspect is in custody and the police intend to interrogate the suspect. In other words, both “custody” and “interrogation” have to occur for Miranda rights to kick in. One upshot of this requirement is that a statement by a person who is not in custody, or a statement made voluntarily rather than in response to police interrogation, is admissible in evidence at trial even if no Miranda warning was given.
Example: Officer Dave Bouncer is investigating a barroom brawl. The bartender indicates that a patron named Bob Sawyer might be able to identify the instigator of the brawl. When Officer Bouncer interviews Bob, Bob makes statements implicating himself in the brawl. Officer Bouncer did not read Bob his Miranda rights. Nevertheless, if Bob is charged with a crime concerning the brawl, Bob’s statements to Officer Bouncer will be admissible as evidence. At the time Officer Bouncer spoke to Bob, Bob was not in custody. Thus, the evidence may be admitted even though Officer Bouncer never gave Bob any Miranda warnings.
Talking to the Police Might Help You
Police officers may be as interested in clearing the innocent as in convicting the guilty. People can often clear their names as well as help the police find the real perpetrators by answering a few straightforward questions. For example, assume that Wally, a possible suspect, can demonstrate that “I was at dinner with Andre” at the moment a crime was committed. Wally both removes himself as a suspect and enables the police to concentrate their efforts elsewhere.
And legal rights aside, the truth on the street is that people often can make life easier for themselves by cooperating with police officers—as long as they don’t have a good reason not to. “Contempt of cop” has resulted in the arrest and even physical injury of more than one innocent person. When innocent people who are pulled over or questioned by police officers stand on their rights too forcefully, events can sometimes get out of control rather quickly.
Excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.