JUST SAY NO
No. Two letters. One syllable. Seems like a relatively simple word to say.
And yet, as any police officer will tell you, people have a tremendously hard time saying “no” to the police.
Can I talk to you for a second? Do you mind if I search your car? Understanding you have a right to remain silent, do you want to answer my questions?
The answer to these questions, under almost all circumstances, should be no. But it rarely is. And police capitalize on our desire to avoid tension, to appear cooperative, and to respect “authority” to cause people to routinely agree to things that they do not have to, waive their rights, and get themselves in trouble.
Let’s look at the three questions posed above and talk about what rights you have in each situation to JUST SAY NO.
You do not have to talk to police officers just because they want to.
Read it again: you do not have to talk to police officers just because they want to.
When a police officer forces you to stop and talk to them, it is called a detention. This is different than an arrest and does not require the heightened standard of probable cause, but it does require what is called “reasonable suspiscion.”
The seminal cases on this is Terry v. Ohio (1968) 392 U.S. 1 and Florida v. Royer (1983) 460 U.S. 491, which you can read in their entirety if you are interested. For purposes of this conversation, suffice to say, you have a right to refuse to interact with the police unless the police know of specific facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion that you have committed a crime.
Despite this, police are free to engage people in a voluntary conversation. If you consent to talk to the police and they do nothing to coerce that conversation, there are no Constitutional implications and anything they learn during that conversation can be used against you. Police know, indeed they are trained, in how to exploit this nuance and initiate conversations in ways that people are unlikely to decline.
So what does this mean in reality? It means you need to define the situation at the outset. Be polite, but be firm.
“Hey, can I talk to you for a minute?”
“No. I don’t want to talk to you. Unless I am being detained , I wish to leave. Have a good day officer.”
By doing this, you have forced the officer to make a decision. Either the officer has reasonable suspicion to say “yes, you are being detained” or the officer has to wish you a good day and let you go on your way. If they detain you without reasonable suspicion, what they learn during that conversation and “fruits” of that conversation cannot be used against you in court. You have protected your rights.
It is also important to note, as we will discuss further below, that even if the officer says “you are not free to leave, you are being detained” you still do not have to talk to them or answer their questions. You never have to talk to the police if you do not want to, under any circumstances.
A related area is when you have come into contact with the police, either consensually (which if you follow the advice above will never happen) or because they have reasonable suspicion to detain (a traffic stop, for example), and they ask if they can search you or something belonging to you, like your car.
Police ask for permission to search for a simple reason: most people say yes and once they do, no court ever has to decide whether the officer had a right to search, you let them. Again, if you say no, you force the officer to weigh the question whether they have a right to search whatever it is that they want to. If they do so without reasonable suspicion, you can challenge that search and what it turns up in court. If you allow the search, that’s the end of the inquiry.
“Is it ok if I take a look in your car?”
“No. I do not consent to any search and again, I would like to leave.”
The last area where people bewilderingly waive an important right is under questioning after they have been arrested. Once you have been arrested, police are required to give you the famous Miranda warnings before they can ask you any incriminating questions. You would be amazed at the percentage of people who agree to talk to police in this situation where, in the vast majority of cases they are only going to get themselves further in trouble.
If there are things you need to tell the police, do it later, with a lawyer.
One thing to note here is that police are required to advise you of your Miranda rights prior to custodial interrogation, but they are NOT required to expressly ask you if you wish to waive those rights. In other words, once they have told you your rights and confirmed that you understand them, if you start answering their questions, courts will find an implied waiver.
This is an area where there really are some magical words. You cannot be wishy-washy. Saying things like “I wonder if maybe I should talk to a lawyer first” will not get the job done.
“No. I do not want to answer your questions. I am remaining silent and I want a lawyer.”
Once you say this, if the officer follows the law, all questioning must stop. Cops routinely violate this and try to continue questioning or urge a suspect to reconsider. Once you say these words, you have done your job. From that point on, I would advise you to stare at the officer like you suddenly lost the ability to form words with your mouth.
It is important to note that your right to remain silent is not triggered by arrest. All an arrest changes is the officer’s obligation to tell you that you have that right. You always have that right. You never have to talk to the police, whether you have been arrested or not. If the officer is questioning you in a non-custodial situation, make clear that you are invoking your right to remain silent and do not wish to answer any questions. Many police officers do not understand that you have a right to remain silent at all times, even before arrest, and may try to tell you this. Again, if you have told them you want to remain silent, you have done your job, now it is time to do just that: remain silent.
A FINAL WORD
To be clear, this is not as easy as uttering the words no. Police do not like to be told no, they are not used to it. Indeed, they may give you some grief for it. They may even violate your rights and try to continue contact or search without permission or probable cause or keep questioning you after you tell them you wish to invoke your rights. This may mean you need to vindicate your rights after the fact in a court of law. BUT, if you do not assert your rights in the first place, you are up a creek without a paddle.
The only way you will ever be able to vindicate your Constitutional rights is if you assert them by saying NO. If you have done so and believe the police violated those rights, you have the ability to raise these issues in court. If this is your situation, contact my office immediately and we can further discuss your options.