Everyone who’s watched a TV cop show knows the line:
“You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have that attorney with you for all questioning. If you cannot afford an attorney one will be appointed to you. Do you understand these rights as I have read them to you?”
Because of this TV trope, many clients come to us under the impression that if the officer didn’t read them their rights then their arrest was unlawful, and their case can get dismissed. Unfortunately, it’s not that simple. So, what is that trope about? Why do the police sometimes say it? When do they have to give you advisements? and what you should do if you’re questioned by the police.
In 1966, the US Supreme Court made the landmark Miranda decision which required officers to inform a person of certain constitutional rights whenever the officers want to conduct a custodial interrogation. The main constitutional rights that they must tell a person about are the right to remain silent and the right to an attorney.
There are two main parts of a custodial interrogation. First, a person must be in custody – that is, actually under arrest. You can debate whether or not you’re under arrest based on whether a reasonable person would believe that any restrictions on their freedom will not be temporary, but for a practical consideration you are under arrest when the officers tell you that you’re under arrest. Second, a person must be interrogated – that is, actually asked questions. Again, you can debate whether an action by the police is designed to provoke a response, but practically any discussion about the investigation with a subject is a form of questioning.
When the police want to question you, perform a custodial interrogation, the US Constitution allows you to not answer any questions and to have the police stop trying to ask you questions – that’s your right to remain silent. It derives from your right to not have to testify or make any evidence against yourself. By invoking that right, the police have to stop asking you questions and cannot start asking you questions again unless you initiate the conversation.
During a custodial interrogation you also have the right to have an attorney present. This is because an attorney has a working knowledge of the broad spectrum of your constitutional protections when you’re the subject of an investigation. If you demand an attorney, similar to the right to remain silent, the officers cannot interrogate you without the attorney present. In practice, if a person demands an attorney the police will usually stop the questioning just as if you claimed your right to remain silent – they’re not going to go out of their way to bring in your attorney at that moment.
If a custodial interrogation occurs and a person is NOT advised of their rights, then any information given by that person can be suppressed in court. Suppression is a legal tool that allows the court to prevent a jury from hearing certain kinds of unlawfully acquired evidence. Because a custodial interrogation without Miranda warnings violates a person’s constitutional rights in a very fundamental way, it wouldn’t be fair for a Judge to allow the police to use the information against that person in a court of law.
Many interactions with the police do not involve a person in custody, so the Miranda warnings are not required. Most common to this situation are roadside stops and stop and frisks. A roadside stop is when an officer pulls a person over for being suspected of a traffic offense (DUI included) or the officer is investigating an accident. Stop and frisks are conducted when an officer has a suspicion that a person committed a crime. Both situations are considered temporary detentions, not arrests, for the purpose of conducting a brief investigation to either confirm or dispel the officer’s suspicion of a crime. During these brief investigatory stops the officer does not have to advise you of your rights, they may ask you questions, and they may pat you down for weapons. During the interaction they can ask you for consent to search you, your home, your car, and anything else you have under your control at the time. While the officer doesn’t have to advise you of your rights, YOU STILL HAVE YOUR RIGHTS. That means that you don’t have to answer any of the officer’s questions, you don’t have to consent to any searches (beyond the pat-down for weapons), and you can tell them that you’d like an attorney.
For either a roadside stop or a stop and frisk situation Miranda warnings are not required. That means that anything that you tell the police can be used against you. Any questions that they ask and that you answer are used by the police to build their case against you. And because this is not a violation of your fundamental constitutional rights, those entire conversations can be shown to the jury in your trial.
What do you do if you’re stopped by the police?
The first situation is likely a stop and frisk or a traffic stop situation. The officers do NOT need to advise you of your rights, but you also don’t have to help them at all. The following phrases can be helpful:
• “I don’t really want to answer your questions. Sorry. I’d just prefer not to.”
• “With all due respect officer, I’d prefer not to. Thanks.”
• “I’d like to go now please. May I go now?”
• “No, I don’t consent. I’d just prefer if you didn’t search.”
• “This whole situation is making me uncomfortable; I’d like to have a lawyer before you go any further.”
And this one is very useful…
• “Officer, is that a command or a request?”
The reason that last one is so useful is that you can get an obstruction charge for not abiding by a lawful command during a traffic stop or stop and frisk, but you never need to abide by a request.
The second situation is where you’re under arrest, in an interrogation room. Here they DO need to advise you of your rights and you DO need to waive your rights before they can ask you anything of substance.
First, they’ll have you sit in the room, alone, likely handcuffed, on an uncomfortable chair for between 10 minutes and about 2 hours. There is no clock in an interrogation room. Then one or two investigators will come in, unhandcuff you, offer you water and snacks, and then present you with a waiver of rights form. It will state that you have the right to not answer any questions, that you can stop the questioning at any time, and you can have a lawyer if you want one. They’ll make some speech about how they just want to know the truth; they have one side and it looks bad for you, but they know that you’re not that bad. “They just want to know your side of the story!” In reality the objective of the police officers in an interrogation room is to (1) get you to waive your rights firmly and for the record, then (2) get you to make a full confession. They don’t want to be your friend; they want you to help them dig your own grave.
The form itself should be your first red-flag. Anytime the police want you to give up your rights means that you are in trouble. You have the right to remain silent – DO IT. You have the right to an attorney – GET ONE.
The “help me help you” line should be your second red-flag. If you call the police, more than likely they’re actually trying to help you. If you don’t call the police, they want to arrest you and prosecute you. The “help me help you” line is designed (along with the interrogation room setting) to short-circuit your critical thinking skills and develop a trust bond between you and the officer. The officers know that this trust bond is the most effective way to get a confession from you. Make no mistake, nothing you tell the officers at this time can help you – it will only hurt you.
You don’t need to sign the rights waiver. You don’t need to answer any of their questions. Neither the police nor the prosecutors can use your refusals against you.
Be respectful but be firm. Don’t talk to the cops.
If you or someone you love is facing criminal charges and was interrogated by the police then please call to arrange a consultation. The attorneys at Perrotta, Lamb, and Johnson are well-versed in custodial interrogation theory and practice. We have reviewed hundreds, if not thousands of hours of interrogation tapes and have successfully argued to suppress evidence based on the theories discussed here. Please call, we want to help.