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Most Americans are familiar with the “right to remain silent” and that police need a warrant to search your things. But there is often a disconnect between knowing these rights and having the confidence to assert them. People often think that refusing to answer questions or refusing to give consent for officers to conduct a search makes them seem suspicious, and that by complying, they may get themselves out of trouble.
Unfortunately, answering questions or allowing a search can get a person in more trouble. You may give an answer that you think is innocent, but which actually incriminates you in some way. Or, you may think officers won’t conduct the search since you were willing to give permission, but they will. So, when you are approached by the police or pulled over during a traffic stop, it’s important not only to know these crucial rights, but to have the confidence to assert them and tell an officer, “No.”
WHAT ARE MY RIGHTS?
The Fifth Amendment says that no person can be “compelled in any criminal case to be a witness against himself.” In other words, a person has the right to remain silent. This means that in a criminal trial, you can’t be forced to testify against yourself. But it also means that before you’re brought to trial or arrested, the police cannot force you to say things that could be used against you later. So, whether you are approached by the police on the street, on your doorstep, or pulled over in a traffic stop, you are free not to answer any of their questions.
Similarly, the Fourth Amendment protects people from “unreasonable searches and seizures,” unless the police have a warrant supported by probable cause that the person committed a crime. This means the police cannot come into your home without a warrant (unless there is an emergency or the police are chasing a criminal). It also means that they cannot search your car without a warrant (unless they can plainly see or smell evidence of a crime). If you are on foot, police officers cannot search your person unless they have reasonable suspicion that you committed a crime or have reason to think you might be armed. This is known as a Terry stop, or a “stop and frisk,” and is allowed for officers to make sure you’re not armed with anything that could potentially harm the officer.
The general rules to remember are that the police cannot force you to answer any question or force you to consent to a search of your home, car, or person. In fact, in Wisconsin, if you’re approached by police on the street, you don’t even have to identify yourself. (Note that a traffic stop is a bit different in that you do need to provide identification and proof of insurance if you are pulled over in a lawful traffic stop.) Keep in mind, however, that you should always be courteous and polite to police officers. It is not normally a good idea to try to correct or stop the officer, or argue with them. If the officer is mistaken about the law, or an exception to these rules applies, the officer has the burden to support the mistake or exception in court.
SO WHAT SHOULD I DO WHEN CONFRONTED BY POLICE?
First, stay calm. It can be nerve-wracking to be confronted by the police. You should remain polite, calm, and respectful. If you are on foot, do not walk away and do not fidget with anything in your pockets that might make the officer think you have a weapon or something suspicious. If you are pulled over in your car, signal and then slowly pull to the shoulder or a safe side street, roll down the window, turn off the engine and music, and keep your hands on the steering wheel. Once the officer approaches you and asks for your license and registration it is a good idea to ask the officer to reach for them.
Second, assert your rights. Whether the police approach you on foot, during a traffic stop, or at your front door, you can and should politely refuse to answer questions. Many people recognize that it is unwise to answer a question like, “Where were you last Saturday.” However, you should also avoid answering questions that might seem“simple” or “harmless” such as, “Where are you headed,” “What’s going on tonight,” or, “Do you know John Smith?”
In a traffic stop, do not answer questions like “Do you know why I pulled you over,” or “Do you know how fast you were going?” All an affirmative answer does is give the officer more evidence to issue you a ticket, or worse, admits guilt. A response like, “I’m going to decline to answer any questions” lets the officer know there’s no point in continuing the interaction. Similarly, “I do not consent to any search” clearly informs the officer that if he or she wants to conduct a search, they must get a warrant. If an officer insists on performing a search, do not argue, but make it clear that they are doing so without your consent. An officer performing a search without a warrant will have to support their reasons for doing so in court.
Third, politely end the encounter. If the interaction continues and the officer keeps asking questions or says they do not want to have to “go through the hassle of getting a warrant,” do not back down. Remember, your rights are guaranteed by the Constitution, and you can continue to politely refuse. If the pressure continues, you can ask the officer, “Am I free to go?” If you are not detained, feel free to walk away. If you’re in your car, wait until the officer indicates you can leave and wait until the officer is back to his or her car in order to safely drive away. If you are detained, it’s critical that you comply with all instructions at that point. You still should not answer any questions or consent to any searches, but you don’t want to resist arrest. If you’re arrested, don’t answer any questions, ask to speak with an attorney, and don’t waive any of your rights. You can unknowingly waive your rights by starting to answer questions, signing forms, or giving consent for the officers to search something. Do not argue with the police at any time. Your attorney will do that for you.
If you decide to answer questions, you should do so only after consulting a criminal defense attorney. Have your attorney present for any police interview. If the police initiate questioning, you should clearly and unequivocally assert your right to have an attorney present. You can use phrases like, “I’m not answering questions without an attorney present” or “I want an attorney.” Questions or statements such as, “Do I need a lawyer?” “I think I should get an attorney” or “Maybe I should speak to an attorney before answering questions” have been found by numerous courts to be insufficient to assert your right to have an attorney present during questioning. In other words, if your request to have an attorney present is unclear or unsure, it is not enough to force the police to stop their questioning and get your attorney for you.
WHAT NOW?
Remember your legal rights and don’t be afraid to assert them. You do not want to give the police evidence by answering questions or allowing them to search your things. If the police are building a case against you, make sure they do it without your help. Remember, the law is behind you and in place to protect you. Be calm, polite, and don’t argue. If you find yourself with a traffic citation, believe you have been detained without cause, had your things searched without your consent, or wind up with a case in court, you can fight it in court by eliminating any evidence that the police obtained illegally.
Finally, you should seek the advice of trained attorneys. If you have questions about the issues discussed above, the legal professionals at West and Dunn would be glad to discuss whether the firm can assist you. Please feel free to call us at 608-490-9449 or contact us online.
