My advice: Just ask the cop. If (s)he says No; sstart walking. Whenever asked a question, answer first with the question: "Am I under arrest?"
Almost all my clients are lay people but all understand LE's answer.
Works every time and it discourages questions and arrests. Shows a more savvy person and gives LE zero. Just be quiet about it.
We hear time and time again from the lawyers among us, "If you're arrested, Keep quiet!!" But what about before the arrest? Whether it's a simple traffic stop, or being questioned about your whereabouts or the reason you're in a specific location, just what do you HAVE to tell the cop?
For example: I know I have to present my license, reg and insurance to the cop on a traffic stop. When he asks, "Do you know how fast you were going?" or "Where were you going?". am I within my rights to respond, "Sorry, I don't answer any questions - it's my right to remain silent and I exercise that right!" or do I have to answer certain questions? Just what are the limits? Do they very from state to state? (I heard something not too long ago about some southern state being able to charge you with "Failure to answer a lawful question by an officer" if you refused to answer questions during any investigation, including traffic stops.)
Thanks for any responses!
Kinda of a Catch 22..you are entitled to your rights..but use common sense..Where are you going..How fast were you going etc..might get you a ticket or could not get you a ticket if you were to answer.
You are better off not saying anything if arrested...and when asked a question..and your response..I refuse to answer on grounds..etc..could make that moment tough for you..and give reasonable cause to detain you..if they suspected you of something.
You generally do have the right to remain silent, but the protection against using your statements or silence against you in court doesn't kick in until you are in custody. You are considered to be in custody when a reasonable person in your shoes would realize that he is not only being questioned but also that he won't be allowed to leave any time soon. This is the rule whether or not the police have said you are under arrest or have handcuffed you. Of course, if the police have done something like that, that would be pretty good reasont to believe you're in custody.
So, if the police ask routine questions and you sit silently, you could later find yourself in trial watching the officer testify about his questions and that you refused to answer. Then the prosecutor will argue that your silence is evidence that you knew you were guilty of a crime.
That last part is not actually true. The police cannot testify that you did not answer a question. Miranda comes into play when two elements are present: (1) you are in custody (2) you are being questioned. Failure to answer can never be used against you. If it could, the state could take a constitutional protection and wield it against you ("he didn't answer so he must be guilty"). I've seen judges declare mistrials because the cop said on the stand that the defendant "wouldn't answer" or "invoked his right to remain silent." The other important point is that anything you say can be used against you--whether you were Mirandized or not--if it wasn't in response to police questioning. Anything you volunteer is admissible because Miranda doesn't apply to voluntary statements (legally deemed "admissions" or "spontaneous utterances").
I would have responded to this one sooner, but I didn't notice it until now.
WileEcoyote is wrong. The police can testify that you didn't answer a question if you were not in custody at the time. Once you are entitled to Miranda protection they can no longer do this (whether they actually read you your rights or not), but up until that point any non-response is fair game.
The mistrials WileEcoyote mentions must have involved questioning after the defendant was in custody. As my prior post said, though, if the police are questioning someone who isn't in custody then their silence can be used against them.
"For example: I know I have to present my license, reg and insurance to the cop on a traffic stop. When he asks, "Do you know how fast you were going?" or "Where were you going?". am I within my rights to respond, "Sorry, I don't answer any questions - it's my right to remain silent and I exercise that right!""
All you have to say is "No". As in, "No, Officer, I don't know how fast I was going".
And on that note sweetie...an attorney friend of mine gave me simple speech to memorize in any possible "situations" with ellie...i'm not an attorney but it makes perfect sense to me 
"Officer, it is not my intention to flunk the atitude test, and I understand you are just doing your job, however, I am invoking my 5th amendment privilege against self-incrimination and choose not to answer any questions. Also, I would like to call my attorney. Would you please let me know when you will allow me to call him/her? Thank you."
Sometimes atitude really counts for a lot I think...
Hugs,
Violette
A similar thing happenned to me once. I was stopped for speeding and the officer asked me "Do you know how fast you were going?"
Now, to me that sounded like a Catch-22 question designed to entrap me into either 1) Admitting that I DIDN"T know how fast I was going (I believe the law requires you to know what speed you're going otherwise how could you possibly observe speed laws? -or- 2) Admitting that I was breaking the law by being fully aware that I was exceeding the speed limit thereby incriminating myself -or- 3) lying outright to the LE who just pulled me over for flying past his radar at light speed and sweetly telling him I was doing 55. This, to me, sounds like an unfair question. The only way I was ever able to get out of such a question was to deny deny deny and create doubt in the officer's mind by telling him I saw a car exactly like mine zip past me and that I believed he had accidentally pulled over the wrong car by nabbing me. This, of course, will not work at night when you're the only car on the road. It did, however, create sufficient doubt for him to let me go on a busy Long Island Highway in the middle of the day. Anyhow.....I'd be interested to know if I'm required to answer such an entrapping kind of question. Any ideas you Legal Eagles out there?
It depends on at least two things:
1. have you been placed under arrest or merely, say, stopped for speeding; and
2. the nature of the charge.
If the charge is for a vehicular infraction only for which there is never an arrest, give them all the documents and answer the way the prior poster suggested: No, Office, I don't know that ... whatever.
If the charge is more than a vehicular or traffic infraction or it could become one, i.e., you've been ddrinking or there's a controlled substance in the car, prior to your arrest answer no questions other than name rank, serial number and ID. After you;ve been placed under arrest, immediately ask for your attorney and politely decline to answer any questions until you speak with him or her.
In the more serious case, everything you say will be written down (or worse, mis-quoted) and used against you at trial or in pre-trial plea bargaining.
Remember: the burden of proof is on the DA. Don't help him out.
Careful here -- "have you been placed under arrest" is not nearly as easy to figure out as you might think. You can legally be under arrest long before the officer says anything about arresting you. Laypeople (probably a term that can be taken in different ways on this site) often have very clear ideas about when they would be considered under arrest, but they are often wrong.
I have always been under the impression that anytime the cop detains you, you are considered to be under arrest.
Arnold
-- Modified on 12/22/2003 12:01:38 PM
This is a common mistake. In fact, most people who are stopped by the police aren't under arrest. Police can stop potential witnesses, etc. to ask routine investigative questions or to conduct routine traffic stops, and these encounters are not arrests. Exactly when they become arrests depends on the facts of each case, but it boils down to a question of whether a reasonable person would believe he would be allowed to just walk away within a very short time.
My advice: Just ask the cop. If (s)he says No; sstart walking. Whenever asked a question, answer first with the question: "Am I under arrest?"
Almost all my clients are lay people but all understand LE's answer.
Works every time and it discourages questions and arrests. Shows a more savvy person and gives LE zero. Just be quiet about it.
What if the officer replies "No, but I'd like to ask you some questions."
Politely decline to answer. If arrested, request your lawyer before speaking at all other than name, rank and serial number.
ACTUALLY A TRAFFIC TICKET IS A FORM OF ARREST AND AS SOON AS HE DETERMINES THAT HE IS GOING TO ISSUE ONE IS WHEN YOUR RIGHTS GO INTO EFFECT.
You are not necessarily under arrest if the police detain you; you are merely in custody. If you are detained as a suspect the police must recite Miranda to you, otherwise any answers you give to their questions will be inadmissible in court. Miranda can be, and often is, read to suspects who are not under arrest. The arrest itself is more of an administrative function for processing suspects into the court system. The best way to tell if you're under arrest? If they're taking your photograph and fingerprinting you in a room full of men and women in blue, then you're probably under arrest.
"The best way to tell if you're under arrest? If they're taking your photograph and fingerprinting you in a room full of men and women in blue, then you're probably under arrest."
Why the qualification? There's no "probably" about it.
But can a cop flat out lie about everything? If you were not read your rights, how can it be proven? All the cop have to say is "yes, I read it to him/her".
One different thing to keep in mind: the Constitution says you can't be made to testify against yourself, but that just protects you from a criminal perspective. There can be other government-entangled consequences for not cooperating.
For example, daily reality probably makes you think of being able to drive on public roads, as a right. But it's really not a right, which is why you have to have a driver's license. It's technically a privilege. Privileges can be taken away, and the Constitution doesn't have a damned thing to say about that. That's why refusing a breath test can result in immediate loss of driver's license -- you're essentially violating the terms of an agreement that you had voluntarily entered into with the state.
This topic reminds me of .........When I took a CCW (carry concealed weapon) permitting course in Arizona, my class was instructed by high ranking state police (LE). The members of my class were other upstanding private citizens. If involved in a shooting we were told to reply in a simple respectful fashion, regardless if under arrest.
1. Politely decline to answer any questions other than who you are and ask if you may leave to make an important phone call.
2. If you may not leave and the questioning continues, inform the party asking the questions that you are having chest pains and request to see a doctor.
I agree with the advice they gave us. I think the point they were making was that these above two comments sound a lot better in court than the typical. “I’m taking the 5th on all questions” and “I need to see a Lawyer before I answer any questions,” but this last paragraph is only my opinion.
This sounds like good advice. Since I have a heart history, it might even be the truth.