When Stopped By Police You Must Assert Your Rights Clearly or Risk Waiving Them…

Why would you talk to a police officer who stopped you? There are several reasons. First, you feel like you have nothing to hide and you want to explain your way out of the situation. Second, you are confused by the Miranda warnings. This article is designed to help clarify Miranda in one key aspect — the invocation of your rights must be unequivocal. In other words, keep your answer simple.

Before I turn to the Miranda rule, I want to share something personal about the first reason. I sympathize with the first reason. Human beings naturally want to explain things. I have certainly felt the temptation when stopped by police officers. Avoid the temptation. Even if you are innocent or confident in your speaking ability, there is absolutely nothing to gain by talking with police.

You should always be polite to police officers, but keep this in mind. Police are allowed to lie to you and tell you that if you talk you won’t get into trouble. Remember only the prosecutors are authorized to make deals, not police officers.

Now, let’s talk about the Miranda rule as created by the United States Supreme Court in Miranda v. Arizona (1966) 384 U.S. 436. A typical Miranda warning is “ 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 have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights? ” In border states, including Texas, New Mexico, Arizona, and California, suspects who are not United States citizens are given an additional warning “If you are not a United States citizen, you may contact your country’s consulate prior to any questioning.”

It may look clear cut, but there are a few things that are confusing about this warning even to a lawyer. First, when are police officers required to give the warning? The short answer is, only during a custodial interrogation. Custodial interrogation means that you are being questioned while you are in custody or you believe that in the surrounding environment you are not free to leave. Even if you are a lawyer, custodial interrogation is ambiguous.

This leads to next question, How can you protect yourself when you are stopped by a police officer? Luckily, the answer is simple. Invoke your rights, keep your answer simple and then keep quiet.

Keep your answer simple. Just say, “Officer I do not want to talk to you about anything.” “I want to talk to a lawyer now.” “I do not give my consent to any search.”

Assertion of your rights must be unambiguous. Davis v. United States (1994) 512 U.S. 452. If you are not clear and to the point, you ran the risk of waiving your rights. Consider the example of the Davis case. The defendant in Davis, said “Maybe I should talk to a lawyer.” The United States Supreme Court held that this answer was ambiguous and allowed the statements Davis made after this invocation of rights to be allowed into evidence.

You maybe asking, “So does that mean that I can say absolutely nothing to police officers?” The answer is NO.

First, of all, do not fail the attitude test. Always be polite to police officers to avoid tense situations. One of my law school professors always reminded his students about the dangers of getting too excited about constitutional liberties and ignoring the real world. In the real world, police officers have a tough job, and if you answer them in a disrespectful manner they will come down on you hard because you failed the attitude test.

Second, if a police officer stops you while you are walking, and asks you for identification, it is probably in your best interest to provide such information. If you are driving and you get pulled over, produce your license , registration and insurance information. Then tell police the magic words, (see keep your answer simple above), put your hands on the wheel and keep quiet.

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