A friend of mine was in a fraternity when he was in college. Like most college boys, he did some pretty stupid things, including stealing a large sculpture from a yard “because it looked cool.” The next day, after installing the sculpture in the frat house, he was pulled over and taken to the police station for questioning. They never told him why he was being questioned. Logically, he assumed that he had been nabbed for the theft of the sculpture. He was sweating bullets. The police kept questioning him with nonspecific questions, left him alone for periods of time, and came back to pepper him some more.
Unknown to my friend, the police had no clue about the theft. Turns out, a different person with the exact same name in the same city was a drug dealer. While my friend got pulled over for a benign reason, several very serious warrants appeared when the police ran his name. The police held him for hours until they finally figured out that my friend and the suspected drug dealer were completely different races.
So, without providing legal advice specific to any set of facts, let’s consider things my friend could have done to be sure his rights were protected and he was in a position to achieve the best possible outcome to his situation. Here’s some tips on what should you do if you’re stopped or arrested by police.
1) At all times, be polite and respectful. Sarcasm, rudeness, and defiance will only make this stressful situation worse.
Ask if you are free to leave
2) Ask if you are free to leave. My friend said he was arrested, but to a college kid, a man with a gun and a badge saying “please come with me” can feel like an arrest without actually being an arrest. Ask if you are free to leave! If you are not in a police station, politely inform the officer that you have a previously scheduled appointment which you cannot miss. Do not accompany police to the station! If you are at the station, stand up and head towards the door. Police must have reasonable suspicion to detain you. If the police try and stop you, ask again if you are free to leave and keep asking until you get a straight answer. Police must have probable cause to arrest you. An arrest triggers your Miranda rights, including the right to remain silent under the 5th Amendment. If you are not under arrest, any further conversation is at your peril, even your request to not answer anymore questions. The United States Supreme Court held that your pre-arrest silence can later be used against you as an indication of guilt. See Salinas v. Texas, 133 S.Ct. 2174 (2013). If you are not under arrest—leave. If you are under arrest, your Miranda rights will apply, and you can assert your right to remain silent and your right to speak with an attorney.
Ask for the reason for your arrest or questioning
3) Ask why you are being arrested/questioned. The police do not have to tell you this information, but sometimes they will. It just depends. Keep in mind, the police could omit reasons for questioning you or even lie. While it depends on the situation, this question could help establish your ignorance regarding lines of questioning.
Know when to ask for an attorney
4) If you are under arrest, ask to speak with an attorney and invoke your 5th Amendment right to remain silent. You must affirmatively invoke these rights. Then stay silent. Do not speak to anyone unless it is your attorney. Once you do this, interrogation must stop. You can waive your rights by speaking with police any time after you assert your right to remain silent. In Berghuis v. Thompkins, the U.S. Supreme Court determined that saying “yes” in response to an officer asking if a suspect “believed in God” amounted to a waiver of the suspect’s right to remain silent. 560 U.S. 370 (2010). While the Miranda warnings a suspect receives are designed to be an obvious warning to a suspect, waiving your rights under Miranda does not require the same level of formality. Waiver can be implied by your conduct. Speaking with anyone who is not your attorney can waive your previously asserted right to counsel and right to remain silent, allowing interrogation to resume.
Every situation is different. Who knows what would have happened if my friend had asserted his rights to leave (if he was not under arrest), to remain silent, and to speak to an attorney. As it turned out, he did none of the above, but at least knew to say as little as possible until the police revealed why they were questioning him. In the end, he was released without charges (and returned the sculpture to its proper home the next day).
When you are in the moment with a police officer or detective questioning you, it may be difficult to resist the urge to “help” or to clear your name, but you must remember that the police do not necessarily have your best interest in mind. The police are trying to solve a crime and/or protect the community. Know your rights: either leave or call an attorney who will protect your interests.