The Criminal Law Handbook: Know Your Rights, Survive the System

Introduction

The overbearing police interrogation designed to wrench a confession from a quivering suspect is an enduring dramatic image. Though the image is largely a relic of the past, police officers do question individuals in a variety of circumstances. For example, aside from seeking a confession, police officers may question an arrestee to uncover information about additional suspects, or officers may simply seek information from people they have no intention of arresting. This chapter examines common situations in which police officers are likely to ask questions, and describes the typical legal consequences both of talking and of remaining silent.

Tip: Prosecutors can be counted on to use your words against you. Even a seemingly innocuous or innocent explanation may appear to link you to a crime when your words are recounted by a police officer. Your statements to a police officer may return to haunt you throughout your entire case, from the charges, to the amount of bail, to the trial itself. People who have even a remote suspicion that they may be accused of a crime should never talk to police officers before first talking to a lawyer.
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 onthe 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.


Do You Have to Report a Crime to the Police?

Generally, neither a crime victim nor a witness who sees a crime take place has a legal obligation to report the crime to the police. Though a crime is an offense to the public as a whole, reporting is usually a matter for people's individual consciences and circumstances. However, you should be aware of the following:

* Laws in many states do require some individuals to report particular types of crimes. For example, teachers, social workers, and medical professionals may have to report suspected child abuse.
* You may be guilty of a crime as an "accessory after the fact" if you take active steps to conceal either the crime or the perpetrator. For more information about this, see Chapter 12, Section III.
* A few states, including Ohio, Massachusetts, and Washington, have enacted laws that make it a crime to see a felony occur yet fail to report it. Few prosecutions have taken place under such laws.

For background information about mandatory reporting laws, see Eugene Volokh, "Duties to Rescue and the AntiCooperative Effects of Law," 88 Georgetown Law Journal 105 (1999).


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.