You hope the charges won’t stick. Not a dice roll you want to take. Especially if it is your word versus the police officer’s word.
That’s not what I was addressing. It was your statement
Being factually correct they can and do arrest people for it. If you had to spend hours in jail for remaining silent, your car impounded and you have to pay to get it back, calling a family member of friend to pick you up from jail … does the fact they dropped the charges make all of that go away?
If you had said, “They can’t convict you for remaining silent.” even this is incorrect IF you are suspected of committing a crime or about to as you must identify yourself (in my state). After that then yes they (hopefully) cannot convict you for remaining silent … but being factually correct that’s not what you said.
FWIW, I was once asked by a cop if I had permission for him to search my car. I said “no”. He looked very slightly surprised and continued questioning me. I didn’t give him any useful answers nor did I refuse to answer questions. When he realized that I wasn’t going to be helpful, he walked away. That said, they didn’t really need information from me to arrest my clearly guilty friend.
Nevertheless, I was super happy to get to assert my rights like that. Bucket list
That happened to me too but I consented to the search. I was 17 at the time and with a friend and I knew I could and should say no but we were headed to a party and there was a girl I wanted to see so I figured it was best to allow the search and be on my way. I knew there were no drugs or alcohol or anything illegal in the car. He still fucked around with me and my friend for 30+ minutes before letting us go (very small town and a small town cop with nothing else to do then cause us problems).
We were not even driving. I was parked on the street in front of my friend’s house. Came out to see a police car with spotlights on my car. Things went from there (FTR…I was completely sober in all respects).
I completely get this and understand how the mere fact of being arrested – even on a baseless charge – can be devastating for people (particularly those of limited means). The strong impulse is to do whatever possible to avoid being arrested, and the human assumption is that doing whatever the officer requests will make him more likely to go easy on you.
But I agree with @ASL_v2.0 – a cop who is going to falsely arrest you on a concocted premise just for asserting your rights was going to arrest you regardless. You’re screwed either way at that point, and might as well take the path that limits the consequences as much as possible.
I agree. So the correct thing to do is invoke your 5th Amendment rights and then STFU.
Of course, a cop can also shoot you. They might (or might not) face consequences for it later, but no court finding is going to be able to reverse the shooting.
Just to drive that point home (NSFW…language) 
My personal opinion is that folk come across worse when they start citing specific amendments (correctly or other), instead of simply and politely stating that you do not consent to any search of your car or person, and do not wish to answer questions or engage in conversation. Familiarize yourself with what is required in your state to ID when walking/driving, and readily comply. DO NOT give incorrect info. Ask that the cop’s camera is on, and even if it is, consider recording on your cell.
You can readily YouTube any number of instances where cops try to create cause by asking, “why aren’t you cooperating,” “Why are you so nervous/angry,” or observing that it is “unusual” for someone to not state where they are coming from/going to. Do not take that bait.
Realize that if a cop stops you, and if you assert your rights, there is a chance you may be inconvenienced by being arrested and having to defend yourself against charges. But if you do not consent/speak, as a general matter it will lack sufficient evidence for a successful prosecution.
Same applies if a cop knocks on your door. DO NOT let him in. Step outdoors and close your door behind you. And do not think you can reasonably explain any situation you think the cop might be interested in. You do not know the specifics of any law behind the cop’s questioning, and the cop has no obligation not to lie.
I disagree on specifically citing the 5th Amendment. One because of the court case that says you need to specifically invoke it. And two just for the irony that when the cop says you have to answer their questions and then arrests you for obstruction when you don’t, the first thing they say to you is, “You have the right to remain silent.”
Again disagree. I have rights in my home that I do not have outside. I stay in, cop stays out.
It’s not you who is deciding on rolling the dice, it is the cop. The cop is rolling the dice on whether you are a nice little drug arrest, have enough cash to cover the office Christmas party, or just a waste of time fix-it ticket.
Also consider the complete inaccuracy of field drug detection tests. Let them search your car, and that scrap of paper may have “heroin residue,” and now you’re really arrested.
A report released just last week says, " the use of presumptive field tests in drug arrests is one of the largest, if not the largest, known contributing factor to wrongful arrests and convictions in the United States." (their bolding). Don’t even give them the chance.
That’s not the law exactly. While that surely would satisfy the requirement, the words “fifth amendment” are not required. What is required is that you must affirmatively and unambiguously invoke the right to remain silent.
So, for example, merely sitting silent and saying nothing at all in response to questions does not require the police to cease asking questions: they can continue asking until either (a) the police decide to stop asking questions on their own, for whatever reason (possibly because you just incriminated yourself) or (b) you affirmatively and unambiguously invoke the right to remain silent, which could be accomplished by saying “I choose to exercise my right to remain silent under the fifth amendment” but, then again, could also be accomplished without mentioning by saying “I choose to exercise my right to remain silence” or a number of other ways that don’t cite the 5th amendment specifically.
That’s the thrust of Berghuis v. Thompkins.
I am pretty sure asserting your right to remain silent in no way stops the police from asking you more questions. It just means your silence cannot be used against you in court.
I recall some testimony where someone was being asked questions and for each and every question asked they invoked their right to remain silent (might have been an 80s mob boss or something…I forget).
Once you are arrested and you ask for an attorney they have to stop questioning (which is important…if you willingly sit in a room with the police that does not mean you are arrested…the police will happily not arrest you so they can ask questions…try to leave and that is when they will probably arrest you…then you can ask for an attorney and they have to stop questioning).
If you are stopped for questioning, DO…
- DO ask “ Am I free to go**?”** If they say ‘yes,’ leave calmly. If they say ‘no,’ DO ask to know why by saying, “Can you tell me why you are stopping me?”
- DO exercise your right to remain silent. Say “ I want to remain silent**.”** You cannot be arrested or detained for refusing to answer questions. But it can look suspicious to the police if you answer questions and then suddenly stop. Make it your practice to always remain silent.
- DO make sure the officer knows you do not agree to be searched (they might search you anyway, but make your opposition known). Say “ I do not consent to a search**.”**
- DO, if you are being given a ticket, give your name and birth date, and sign the ticket. If you don’t, you may be arrested.
Then what is your advice? Consent to a search?
No. But it does give your lawyer grounds to sue.
So, yes, the police can do all sorts of stuff that is not legal. They have a gun and a badge. They rarely will.
But in any case, follow the ACLUs advice.
But you don’t know, since you had a friend. Maybe he had drugs, then ditched them under the seat.
Even if you are sure you have no drugs, maybe a mechanic or car detailer dropped something in your trunk accidentally. Maybe the previous owner stashed a bunch of drugs in some hidden places.
Follow the advice of the ACLU.
If you are stopped in your car, DO…
- DO show your license, registration, and proof of insurance when asked, if you were driving.
- DO keep your hands on the wheel and let the officer know what you are doing (“I’m going to reach for my registration now.”).
- DO say “ I do not consent to a search**.”**
And allows your lawyer to sue.
If you are taking in for questioning- ie arrested- asserting your right to remain silent and demanding your/a lawyer does stop questioning.
Aside of things like identifying yourself, you always have the right to remain silent when interacting with the cops – whether at a traffic stop, under arrest or chatting at a backyard barbecue. However, only if you are in police custody does stating that you are invoking your Fifth Amendment right to remain silent require that the officers cease any further questioning.
I did know. I drove to his house and waited for him to get dressed. He was never in the car. I parked in front of his house and came out to see the police car next to mine with his spotlight on it. The cop thought I was responsible for knocking over lamposts in the neighborhood (which was a ridiculous thing but that’s what he said).
Honestly, I just wanted to get to the party. I just wanted to move things along as fast as possible. I was 17 and more concerned with hooking-up with that girl than defending my rights. I get that sounds bad but…17 and horny. My priorities were different back then.
The question to ask is, am I being detained? If you are being detained (not free to go) then any questioning is a custodial interrogation and the 5th amendment should apply (once you unambiguously invoke your right to remain silent, all questioning must cease). If you are not, then it is true, that the 5th amendment does not technically apply because, though an interrogation it may be, it is non-custodial. But the flip side of that is… you can just up and leave (or close the door) or whatever.
"I was 17 at the time and with a friend "
That made me beleive he was in the car with you. But anyway, my other points stand.
No one KNOWS their car is drug free.
Hell, I heard a story about a dude buying a brand new car and finding a doobie in the ashtray from the guys who cleaned the cars at the dealer.
I do not believe that is true. Asking for an attorney will stop questioning. But, they can keep asking if you invoke the 5th. Not least, the 5th only protects you from self-incriminating questions. Asking you if it is raining outside is not self-incriminating. So, the police can continue to ask questions. Even incriminating ones.
I do think, however, once you invoke your 5th amendment rights you can just stay silent. As noted above, staying silent without explicitly invoking your rights does not work. You have to explicitly claim the right but I think once is enough.
If the police intend to lie of make shit up, then you’re screwed anyway. As others say, best to have a refusal on the record. I recall reading of a case where the police first started wearing body cameras, so a means of “producing evidence” was to punch the suspect lyingon the ground repeatedly, but by not bending forward, the body cam view only showed the horizon and recorded the policeman repeatedly saying “stop resisting!”. This only works if another officer is not approaching the scene with his body cam on.
If they say you are not free to go, it has turned from a stop (traffic stop, Terry stop) into being detained. For that they do need a probable cause.
IIRC, though a Terry stop - they’ve stopped you on the street to talk to you - does give the police the right to pat you down for weapons. I don’t recall whether that means they can investigate the soft packet they feel in your pocket, but they can check something if it feels like a weapon - knife, gun, etc. Allegedly, this is for their own safety while talking to you. Presumably, a similar trick is to ask you to step out of the car and perform the same search.
Those reality cop shows - basically, criminals can be really dumb and essentially give themselves away thinking they are smart enough to talk their way out of things. I call it “Judge Judy Logic” - the guy says “He owed me $5000 and wouldn;t pay me back so I took his flatscreen TV.” Yep, you’ve just admitted to break, enter and theft while thinking you could justify the crime - which you can’t.
But if the cop is determined to lie and cheat the system, you better hope he finds bigger fish to fry and ignores you, or that he prosecutor or judge is smart and straight enough to fix things.