The vast majority of encounters between police and the public ends quickly and without incident. It is a part of their job as protectors of the community for law enforcement officers to have the power to interact with civilians and, when necessary, to question them in order to gather information to aid them in performing their sworn duty.
For someone approached by the police either on the street, at home or at work, such encounters can be intimidating. It is, therefore, essential for you to know your rights when questioned by the police and to have a clear understanding of how to protect those rights.
Your Rights and the Constitution
The U.S. Constitution and California laws give you the right to move about without being unreasonably interfered with by police and other law enforcement officers from state or federal agencies. While law enforcement officers have the authority and the power to approach you and ask you questions, you have the right, in most instances, to refuse to answer them. Politely telling an officer that you do not wish to answer any questions should end the encounter.
The so-called “stop and frisk” you might have seen on TV is usually not an accurate portrayal of what the law and the Constitution actually permit police to do. Police, based upon their training and experience see situations differently than most people. For this reason, the U.S. Supreme Court decided a police officer observing suspicious behavior without having evidence to support his or her suspicion may approach and question the individual to determine if criminal activity might be present.
An investigative stop is not, however, the equivalent of an arrest, but if a police officer tells you that you are not free to go, you are being detained. While you continue to retain the right not to answer questions, the officer can insist that you identify yourself.
Questioning Following an Arrest
Although you have the right not to answer police questions prior to being arrested, if police take you into custody on a criminal charge, they must advise you of your rights under the Fifth Amendment as follows:
- You have the right to remain silent.
- Anything you say can be used against you in court.
- You have the right to speak to an attorney and to have the attorney present during any questioning.
- If you cannot afford an attorney, one will be appointed to represent you.
Whether police read you these rights or not, you should politely refuse to answer any questions not having to do with your name, address, date of birth and other identifying information before speaking to an attorney.
Once you tell the police you wish to speak to an attorney, all questioning must stop until your attorney arrives. Just because the police stop questioning you does not mean you can let your guard down. Anything you say, even if it is not in response to a question, can be used against you in court. For example, someone placed in a holding cell to await the arrival of an attorney begins a conversation with another person also being held by the police. If anything of an incriminating nature is said by one prisoner to the other, it can be used by police.
Consult with a Criminal Defense Lawyer
If you suspect you are under investigation by law enforcement or if you have already been arrested, you should consult with a California criminal defense attorney before speaking to the police. Police officers and detectives are highly trained and skilled in the interrogation and questioning of suspects, so you want an experienced criminal defense attorney looking out for your rights and wellbeing.