You are walking down the street when a police officer greets you and starts a conversation. Is this an official "stop" or is it a chance conversation with another member of the community? You remember reading a blog that warned, "Don't Talk to the Police," but this is just a conversation, right? You haven’t done anything wrong so what’s the harm? The officer asks you some questions, and you answer them because you don't know of any reason not to. You are a law-abiding citizen and don’t want to act like a criminal that doesn’t cooperate with the police. You answer the questions, but each question makes you more uncomfortable. What started as a conversation, has turned into an interrogation. Soon, you are given a ticket, or worse, arrested. How can this happen in the United States? Actually, this type of encounter happens every day in our great nation. Even judges have a hard time deciding when a police encounter is:
- a "stop" where you must remain until the officer gives permission for you to leave or
- a "conversation" that you can walk away from without permission.
If you walk away from a "stop" you can be arrested. If you walk away from a "conversation" you cannot be arrested. We are most familiar with Stops that happen when the blue lights tell us to pull our car over. That is clearly a Stop. If we disobey the blue lights or disobey the officer after a blue-light Stop, we will be arrested. "Stops" can also happen at the park or even at the grocery store. In order to "stop" someone, a law enforcement officer must suspect that the person has committed a crime. However, an officer can start up a "conversation" with anyone, for any reason “just to talk.” For this reason, I must strongly urge you to remember this:
When you talk to a police officer, you sometimes don't know whether it is a "conversation" or a "stop."
Worse, conversations can turn into a stop and an arrest based on the officer's thoughts (Yep! The officer can tell a judge,"I was talking to Mr. Smith, and then I realized that his answers caused me to suspect that he was the person who had stolen socks from WalMart the week before." Bingo, the conversation is now a stop and you cannot walk away without being arrested. And...you did not know that it had turned into a stop!) For this reason, I must strongly urge you to remember this:
DO NOT TALK TO THE POLICE.
If you are approached by a law enforcement officer, repeat this phrase:
“I am invoking my 5th amendment right and want my lawyer.”
Your 5th amendment right protects you against admitting that you have committed a crime--often called self-incrimination. That just means you have a right to remain silent. You don’t have to talk. You do need to provide your name. Failure to do this is actually a crime by itself, so don’t break it. It may be wise to explain yourself briefly if you are found doing something suspicious (i.e. breaking into your car because you locked the keys inside). Other than that, you simply cannot benefit from talking to a police officer. “You have a right to remain silent” is a phrase we all know. You’ve seen movies. “Anything you say can and will be used against you in a court of law.” I have no doubt you know that part as well. Therefore, anything you say to an officer can be used as ammo against you, even if it is innocent at the time you said it. What you probably don’t know is that what you tell a police officer can only be used against you. It cannot be used FOR you in court because of Utah’s rule against hearsay (all states have something similar). So if what you say can only hurt you, why say anything at all? This rule of thumb is especially true if you have committed a crime. You won’t get a warning simply because you confessed right away. You won’t get special treatment for baring your soul. No one actually talks their way out of being a suspect. Confessing will only make the government’s case against you stronger and dramatically limit your options going forward. Let me be clear: I do not condone lying to the police. I do not condone breaking the law. What I condone is remaining silent, exercising your rights, and protecting yourself. But you’re innocent, right? Wonderful. Unfortunately, innocent people are convicted every single day. Often enough, those innocent people said something to the police during an investigation that led to their arrest. According to the Innocence Project, more than 25% of cases that are eventually overturned based on DNA evidence involved an incriminating statement to the police. White lies, misremembering facts, misstatements, or simply stumbling over your words can all snowball into criminal charges for the innocent. You cannot afford to make these mistakes when your freedom is on the line. The only way to avoid these mistakes completely is to remain silent. Finally, let’s be clear. It literally is not enough to just keep your mouth closed in order to assert your 5th amendment right. You need to assert your right to remain silent. That involves, rather counterintuitively, actually saying you are going to remain silent. You must state, in some form, that you will not be answering questions and will be remaining silent. Saying, “I am invoking my 5th amendment right” should work just fine. Of course, it never hurts to mention your lawyer. If you need help after a "conversation", "stop", or "encounter" with the police, call me, Michael Hepworth, at Hepworth & Associates and we will review your options.