I. Police Questioning of People Who Haven't Been Taken Into Custody

This section deals with police attempts to question you in situations in which you have not yet been placed in custody.

These commonly include:

• on-the-street, in-your-face questioning
• car stops for traffic violations
• investigatory visits to homes or offices, and
• telephone conversations.

(See Section II for police questioning after you have 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 and ask to search you or objects in your possession (such as a briefcase). So 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, a person is generally not required to answer a police officer’s questions or allow a police officer to conduct a search.

2. Is it a crime to refuse a police officer’s request for identification?

Possibly. Many states have “stop and identify” laws. Under these laws, if a police officer reasonably suspects that a person has engaged in criminal activity, the officer can detain the person and ask for identification. A person who refuses to provide identification commits the crime of resisting an officer’s lawful order (Hiibel v. Nevada, U.S. Sup. Ct. 2004).

Also, laws typically require drivers who are stopped for speeding and similar infractions to provide identification when an officer requests it.

Case Example: Jones is standing outside his parked truck. Noticing that Jones fits the description of a man who took clothing from a nearby store about a half hour earlier, Officer Juarez asks Jones for identification and questions Jones about where he’s been for the last half hour. Jones refuses to say anything to the officer.

Question: Has Jones committed any crimes by refusing to answer?

Answer: Since Officer Juarez reasonably suspected that Jones might have stolen the clothing, Jones’s refusal to provide identification would violate a “stop and identify” law. However, Jones has a constitutional right under the Fifth Amendment to remain silent. Jones cannot be punished for refusing to answer the officer’s other 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 (see Chapter 3, Question 4), or a “reasonable suspicion” to conduct a “stop and frisk” (see Chapter 2, Section VI), 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 her actions. In fact, an officer may have information that gives 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 his 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.

Case Example: Officer Icia Yu is dispatched to Upscale Meadows after a resident calls the police to complain that a woman has been walking back and forth along the streets for over an hour, with no apparent purpose. From a distance, the officer observes the woman for a few minutes, and sees her stopping occasionally to peer into residents’ back yards. Believing that she may be planning a burglary, Officer Yu confronts the woman, asks for identification and asks her to explain what she is doing in the neighborhood. The woman refuses to respond.

Question: Can Officer Yu arrest her?

Answer: Under loitering laws in effect in many states, yes. Officer Yu had reasonable grounds to believe that the woman posed a danger to the community. Since she didn’t identify herself or explain why she was in the neighborhood, the officer could arrest her. Had the woman responded to Officer Yu, the officer might not arrest her for loitering. However, she might be subject to arrest for a different offense, such as trespass (unlawful entry on someone else’s property).

6. 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. (See Chapter 24 for more on drunk driving and field sobriety tests.)

7. 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.

Case Example 1: Officer Stan Doff knocks on the front door of Dee Fensive’s home. When Dee answers the door, the officer says, “I’d like to ask you a few questions about a robbery that took place across the street a few minutes ago. Have you noticed any suspicious people hanging around the neighborhood lately?” Dee indicates that she does not want to talk and closes the door. Officer Doff then leaves.

Question: Has the officer violated Dee’s rights?

Answer: No. The officer has a right to try to question Dee. When Dee indicated that she did not want to talk, the officer ended the interview. The officer’s actions are legally proper.

Case Example 2: Martinez is arrested for assaulting Police Officer Haskell. Martinez is shot during the altercation, and very seriously injured. Therefore, Officer Haskell has Martinez taken to a hospital emergency room. A second police officer, Officer Chavez, questions Martinez while he is receiving medical treatment, and Martinez admits to Officer Chavez that before Officer Haskell shot him, he was trying to grab Officer Haskell’s gun. Officer Chavez should have but failed to advise Martinez of his Miranda rights before questioning him. (See Question 13.) However, Martinez is never charged with a crime and the statements he made to Officer Chavez are never offered against him in court.

Question: Can Martinez sue Officer Chavez for violating his civil rights and receive money damages?

Answer: No. Because Martinez’s statements to Officer Chavez were never offered into evidence against Martinez in a criminal trial, Officer Chavez did not violate Martinez’s constitutional rights. In other words, suspects cannot recover money from police officers simply because the officers’ questioning violates Miranda. On the other hand, suspects’ civil rights are violated and suspects can sue and receive money damages when police officers use “egregious” questioning methods, such as torture or other methods of brutality (Chavez v. Martinez, U.S. Sup. Ct. 2003).

8. Doesn’t a police officer always have to read me my “Miranda rights” before questioning me?

No. A “Miranda warning” (see Section II) 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 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 though no Miranda warning was given.

Case 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.

Question: If Bob is charged with a crime concerning the brawl, will Bob’s statements to Officer Bouncer be admissible as evidence?

Answer: Yes. At the time Officer Bouncer spoke to Bob, Bob was not in custody. Thus, Miranda warnings were not required as a condition of admissibility.

9. 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 my 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.

Case Example: While voluntarily answering a police officer’s questions and denying any involvement in a burglary that took place on May 15, Sol Itary nervously mentions that he was using illegal drugs with someone else at another location.

Question: If Itary is charged with possession of illegal drugs based on other evidence, can the prosecution offer Itary’s statement to the officer into evidence?

Answer: Yes. Itary voluntarily spoke to the officer, so the statement is admissible.

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.

Case Example: A humorous example of police officer distortion occurred in the 1992 comedy film, “My Cousin Vinny.” In the film, a police officer questions a college student who has been arrested for killing a grocery store clerk. The stunned student, who at first thought that he had been arrested for shoplifting a can of tuna fish, repeats in a dazed, questioning voice, “I shot the clerk?” In court, however, the police officer makes it sound as if the student confessed to the murder by testifying that the student asserted, “I shot the clerk.” In real life, of course, police distortion is no laughing matter.

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.

Case Example: Moe gets into a fist fight with Curly, which results in a severe cut to Curly’s head. A police officer contacts Moe, seeking his version of the fight. Thinking that he acted in self-defense, Moe fully describes his version of events. However, as the police officer interprets Moe’s story, Moe used excessive force, and the officer arrests Moe for aggravated assault. Had Moe more clearly understood the law, he might not have talked to the police officer.

10. Can it ever help me to answer a police officer’s questions?

Yes. 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—so 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.

11. A police officer wants to talk to me about a crime that I took part in. Is it ever a good idea to try to talk my way out of it?

Usually, no. The golden rule of defense is that suspects who think that they may be implicated in a crime should keep their mouths tightly shut. Suspects all too frequently unwittingly reveal information that later can be used as evidence of guilt. The right to not incriminate oneself, guaranteed by the Fifth Amendment to the U.S. Constitution, is especially powerful in this situation, and a suspect should politely decline to answer questions, at least until consulting with an attorney.

12. A police officer wants to ask me about a crime that a friend or relative of mine committed. What do I risk by providing false information?

A lot. When people lie to the police or otherwise intentionally assist a known criminal to avoid arrest, they may be charged as “accessories after the fact.” They can also be charged with obstruction of justice. Obviously, the decision as to whether to furnish information leading to the arrest of a relative or close friend is a personal one. However, a person who chooses not to do so should simply decline to answer an officer’s questions rather than lie. Rarely, if ever, would an individual who simply declines to give information to a police officer qualify as an accessory after the fact.

Case Example: Cain comes running into his brother Abel’s house, and tells Abel that he, Cain, just robbed a market and that the police might be on his tail. A few minutes later, a police officer knocks on Abel’s door and asks him if Cain is in the house. Abel responds, “No, he left town permanently to go back east weeks ago.”

Question: Is Abel subject to criminal prosecution?

Answer: Yes, Abel might be prosecuted as an accessory after the fact. By affirmatively misleading the police, he has aided Cain in avoiding arrest. To protect himself while not giving up his brother, Abel might have said, “I’m sorry, I can’t talk to you about that.” (Admittedly, the police might view such a response as a red flag that Cain is close at hand. Abel must rely on his own balancing of personal risk, private loyalty, and public duty.)

Next: II. Police Questioning of Arrestees

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