August 28, 2020 | Criminal Defense
Interactions with the police can be frightening and tense. You do not want to say something that can make matters worse, but you do not want the police officers to arrest you for obstructing justice. It is always a good thing to remember that you can remain silent and can have a criminal defense attorney present during questioning.
However, before you exercise your right to remain silent, there are some questions you may want to ask to determine what is happening.
1. Am I Being Detained?
It is important to know if police officers are detaining you after a traffic stop or during any other interaction. When the police detain you, you are not free to leave. You cannot get out of the police car or walk out of the police station.
You are free to leave if the police officer confirms you are not under detention. However, if the officer confirms that you are being detained, you must remain where the officer tells you to stay until the officers complete their investigation.
You may also ask how long the police officers intend to detain you. However, most police officers will not give you a direct answer. If you are detained, it is best not to answer questions.
2. Am I Free to Go?
Before walking away from an officer or leaving the scene, ask the officer if you are free to go. If you are not being detained, the answer should be “yes.”
While you are not required by law to tell the police you are leaving, it may avoid problems if you politely and respectfully tell the officer you intend to leave. If the officer tells you that you are not allowed to leave, ask for an explanation since you are not being detained.
3. Do You Have a Search Warrant?
The police may ask you if they can search your vehicle, home, or person during an encounter. If a police officer tells you that he or she is going to conduct a search, ask the officer if he or she has a search warrant. If the officer does not have a search warrant, you can refuse the search.
An officer does not need a search warrant to pat you down to make sure that you are not carrying a weapon or dangerous object. That is different from conducting a search.
If an officer continues with a search even though the officer does not produce a search warrant, tell the officer once again that you do not consent to the search.
However, be cautious of trying to interfere with the officer as that could cause the situation to escalate. Contact a defense lawyer immediately to discuss options for suppressing the evidence based on an illegal search.
4. Am I Under Arrest?
If you are being detained, ask if you are being arrested. The officer must have a reasonable suspicion that you were involved in a crime to detain you. Detention is generally used to investigate a potential crime or situation to determine if the officer has probable cause to make an arrest.
An officer must have probable cause for an arrest or have an arrest warrant signed by a judge. Once you are arrested, you are booked and processed. If a judge grants bail, you can post bail to get out of jail while your case is pending.
5. Can I Speak to a Lawyer?
The Sixth Amendment to the United States Constitution guarantees the rights to a lawyer for criminal defendants. Asking if you can speak with a lawyer is different from asking for a lawyer. If you ask if you can speak with a lawyer, the police may tell you that you can and continue to ask questions.
You need to state that you are exercising your right to an attorney clearly. Tell the police officers that you want to talk with an attorney and have an attorney present with you.
If you cannot afford an attorney, the court should appoint an attorney to represent you. You are not required to answer any questions until you have the chance to talk with your lawyer.
6. Would You Please Refrain From Asking Me Questions Until My Lawyer Arrives?
Once you ask for an attorney, questioning by police officers or detectives should stop immediately. However, that is not always the case. Some officers may continue to ask questions.
If that happens, firmly state that you will not answer any further questions until your attorney arrives. Once you ask the police to stop questioning after you asked for an attorney, you do not need to say anything else. Even if the police continue talking to you and asking questions, you can remain silent until your attorney arrives.