If you were approached by a police officer at this very moment and asked to answer some questions, what would you do? Would you cooperate fully, even if some of the questions you were asked felt uncomfortable or unnecessary?
When dealing with the police, it is absolutely vital that you understand your constitutional rights. In the United States, everyone, whether a citizen, a resident or a visitor, has certain rights and responsibilities when speaking to the authorities. If you don’t have a full understanding of these legal rights and obligations, you may find yourself in a situation you hadn’t anticipated – even if you’re completely innocent of any wrongdoing.
Interviews and searches
If your only knowledge about police practices comes from watching cop dramas, you might believe that a police interview only begins when you’ve entered a police station and taken a seat in an interrogation room with a one-way mirror on the wall, or possibly only after you’ve been read your Miranda rights.
This is a terrible misconception. In the real world, a police interview begins the moment an officer asks you a question. This can take place anywhere – at your door, on the street, in your workplace or at a traffic stop. Location doesn’t matter.
Let’s imagine that you’re approached by a police officer while at home. You answer the door and exchange a few friendly words. Then the officer asks you whether you’re willing to answer a few questions. Can you refuse to answer his questions?
Absolutely. It’s probably a good idea to first ask the officer about his objectives, but if you don’t like his line of questioning, you have the right to hold your silence. This is the “right to remain silent” that starts off the Miranda warning speech given at the time of arrest. You have that right whether or not you’re under arrest or even under suspicion.
Your right to refuse cooperation with the police extends to searches. Under normal circumstances, unless the police have a warrant to search your home, they can’t enter, search or remove any item from your home without your permission.
Consent
If you give your consent to an interview or a search, you have the right to revoke your consent at any time. The only legal and effective way to revoke your consent is to make an unequivocal statement that you aren’t willing to cooperate any longer. If you wish, you can also ask the police to return at a later time so you can get a better handle on the situation and consult an attorney before proceeding.
All of the above rights are guaranteed by the Fourth and Fifth Amendments to the United States Constitution. The Fourth Amendment promises freedom from “unreasonable searches and seizures” of “persons, houses, papers, and effects”, and the Fifth states that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… nor shall be compelled in any criminal case to be a witness against himself.” In other words, you don’t have to consent to a warrantless search, and you don’t have to answer a question posed by the authorities if, by doing so, you might incriminate yourself.
But I’m not guilty of anything! I thought only guilty people exercise their Fifth Amendment rights.
It doesn’t matter whether you’re guilty or innocent of a particular crime; your words can still incriminate you. Remember, the police aren’t perfect. They might be eager to arrest someone – anyone – on a particular charge, and they may misinterpret your words to imply your guilt. If you think you face the slightest danger of self-incrimination in the course of an investigation, shut your mouth and consult with an attorney.
Exceptions to the above rights
Probable cause
The Fourth Amendment guarantees the right to freedom from unreasonable searches, but it also gives authorities the power to obtain a warrant for a search “upon probable cause… and particularly describing the place to be searched, and the persons or things to be seized.” This “probable cause” to conduct a search is usually derived from prior evidence of criminal activity having taken place at a private residence.
The second part of the statement requires authorities to present a warrant to search specific individuals and seize specific items before entering the house. Essentially, this means that the police don’t have the right to simply barge in and start dumping out all of your drawers without a reasonable suspicion that those drawers might hold evidence of illegal activity.
In other words, if the police have a warrant issued by a judge and backed by probable cause, you cannot legally bar them from entering your home or vehicle to carry out a search, but a search warrant doesn’t give the police free reign to trash your house.
The plain view doctrine
The concept of plain view holds that if a police officer can clearly see evidence of criminal activity in your residence, your car or any other personal space, he can investigate and seize that evidence without the need for a search warrant.
Imagine that an officer has just arrived at the entrance of a private home to question the resident. If a resident opens the door and the officer sees drug paraphernalia lying on a table in view of the doorstep, he can, and probably will, barge in without permission and confiscate the evidence. Simply put, if the police can see it, they can take it. The plain view doctrine is tailored to allow police to stop criminal activity whenever they see evidence of it.
Emergency situations
If your car has been involved in an accident, emergency workers have the authority to enter and search your vehicle, and any contraband or evidence of criminal activity found in the course of their work can be used against the driver in court. The police also have the authority to enter a private residence without a warrant if they’re in the course of a pursuit.
When to cooperate with police and when to refuse
Of course, there are times when you’ll want to fully cooperate with the police. If you’re looking for a missing family member, for example, you gain nothing by refusing to speak to the police.
If you feel the police are following an uncomfortable or unreasonable line of questioning, however, don’t hesitate to assert your Fourth and Fifth Amendment rights. They’re in the Constitution for a reason. You can always decide to resume cooperation with a police investigation after you’ve consulted with an attorney. Whether or not you’re concerned about self-incrimination, though, you have a practical obligation to understand your constitutional rights. You never know when you might need to use them.
