Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.
Miranda v. Arizona :: 384 U.S. 436 (1966) :: Justia US Supreme Court Center.
And as I referenced, field drug tests are notoriously unreliable, but still are the basis for hundreds of thousands of arrests and plea bargains. You don’t have any drugs in the car, you never had any drugs in the car, yet there is still “meth residue” in your trunk, but you’re a good kid, and have never been arrested before, so just plead guilty to this little charge, and do no time, but now go through life with a criminal record.
Generally, the police must immediately stop probing if the detainee invokes either the right to remain silent or the right to counsel. If the suspect invokes the latter, questioning must cease until counsel is available. But if the detainee invokes only the right to remain silent, the police may reinitiate questioning at a later time, provided that they honor the right to remain silent.
What it means to “honor” the right to remain silent after a suspect invokes it isn’t always entirely clear. Courts consider the circumstances of renewed questioning, including the passage of time, whether the police gave fresh Miranda warnings, and whether they asked questions about a different crime. - SOURCE
Martin Shkreli repeatedly invoking his 5th amendment rights.
Invoking your right to remain silent differs depending on whether we’re talking about a police interrogation room, a court room, or a Congressional hearing. In a police interrogation, if you clearly state that you are invoking your Fifth Amendment right to remain silent (even if you have previously waived your rights as read to you under Miranda), questioning must stop. As you note, police can still ask inconsequential or processing questions, and there can be ambiguities around when and under what circumstances a suspect can be questioned again (if you open your own mouth and start volunteering information, all bets are off).
In a courtroom, you have an absolute right to refuse to testify at your own trial. If you are a witness at someone else’s trial, and absent other privileges/immunities, you may only decline to answer a question if the answer may reasonably serve to incriminate you. The trial judge would have to decide if your potential answer meets that standard. If he decides it does not and you still refuse to answer, he can hold you in contempt.
In front of Congress, you likewise have a right to refuse to answer questions that might incriminate you. There’s no judge, so if the relevant chamber believes your invoking the Fifth is invalid, they would have to pass a contempt of Congress resolution and either refer you to the DOJ for prosecution or pursue civil enforcement through the courts (setting aside inherent contempt).
or a crooked cop just throws a bag of drugs in your car.
You don’t watch YouTube much, I see. Lots can go wrong in the field.
This thread reminded me of this -.Don Johnson stopped in Switzerland with 8 Billion dollars.
Being detained is different than being in custody. You are detained when you are not free to go. You are in custody when you are being treated as if you are under arrest - handcuffs, or placed into the back of a police car or brought into an interrogation room.
You don’t have a 5th amendment right when merely detained. That’s why you don’t get to summon a lawyer when you just got pulled over. It only applies to custodial interrogations.
No, police only need reasonable articulable suspicion to detain you. They need probable cause to arrest you.
Two things: yes you do have the right to remain silent under the 5th when being detained except you must provide some information under your state’s identification laws. Think of it this way, if a cop detains you (but you’re not under arrest) and they ask do you have cocaine in your car, do you have to answer? If the cop screws up, arrests you THEN asks if you have cocaine in the car, only then you have the right to remain silent?
Second. Right to a lawyer is the 6th Amendment.
You will not be successful under the 5th amendment trying to suppress statements made while being merely detained.
Well, no. But that’s because that’s not a question you ever have to answer. But if a cop pulls you over for speeding and, while getting your license, asks “you got any guns or drugs in the car?” and you say “yes”, you will not have a defense that you weren’t first advised of your Miranda rights. You were not in custody; you don’t have 5th amendment protection against those statements being used against you (any more than you can suppress the far more common answer to “had anything to drink tonight?”)
You always have a right to not answer incriminating questions.
True. Good point.
But 5 and 6 go together. If you invoke your right to remain silent, cops are supposed to respect that right unless you affirmatively ask to speak (at which time they’ll likely remind you of your rights). Usually, then, once the right is invoked, police wait for the defendant to get a lawyer before trying to discuss things again.
What are you talking about? Under my state if I am being detained under suspicion of a crime I am required to identify myself. Other than that the 5th Amendment applies and I don’t need to answer questions. You said it didn’t. What statements are you talking about?
I never said you did. I claim you can tell the officer, “I’m not answering questions. Am I free to go?”
The 5th Amendment protection while being detained is that (despite what the cop says) you don’t have to answer any questions. But you see people on youtube being arrested for remaining silent.
So you agree with me and disagree with yourself that the 5th Amendment does apply when being detained insofar as you do not have to answer questions?
I don’t think we are talking about being arrested & custodial interrogation. We are talking about a cop stopping you, asking where you got the money then harrassing/threatening/lying to you to get you to answer their questions.
Ok, let’s backtrack.
The fifth amendment doesn’t say that a person doesn’t have to answer questions. That’s not a right it grants.
It says
(My bold)
It talks about being a “witness against himself.”
The courts have defined this to require a person be in custody (or in court) before they are considered a “witness against himself.”
So there’s no right, inherent in the 5th amendment, to not answer questions. There’s a right not to testify against yourself.
And so, while you don’t have to answer most questions a cop asks, it’s not because the 5th amendment says so.
And so, if you do answer those questions, absent certain particular circumstances (namely, being in custody), there was no 5th amendment right involved. It doesn’t apply.
Agreed.
But you haven’t invoked the 5th amendment.
The 4th amendment is what governs detentions. If there is reasonable suspicion that you are engaged in, or are planning, a crime, the police can keep you there. And they can do that regardless of whether or not you choose to answer their questions.
Saying “I won’t answer your questions” doesn’t end the encounter. The police not being able to articulate a reason to be suspicious of you is what marks the end of the encounter. (Or, alternatively, probable cause that you committed a crime, meaning you’ll be arrested).
Sorry, but until they handcuff you it’s going to be hard to argue that you were subject to an interrogation
But, again, that still doesn’t mean you have to answer those questions.
But the issue of when you can leave again goes back to “reasonable articulable suspicion”, or “probable cause”, as required by the 4th amendment.
How? Do you have to show legal ID, or is just stating your name good enough?
Listen to the lawyer. You do not know what you are talking about here. Perhaps you do not perceive the distinction. That’s fine. But you are wrong.
I’m not sure any states require that you carry/produce ID (when not driving). I doubt any state does and in my state (IL) you are not. You do, however, have to give your name and address.
CRS 16-3-103
The same lawyer that said the right to an attorney is the 5th Amendment? Then where do we get the right to not talk to the police? I had always heard it is in the penumbra of the 5th but if it comes from somewhere else then where?
Here is an example of many sites that imply not talking to an officer in general is constitutionally protected. From the ACLU
Do I have to answer questions asked by law enforcement officers?
No. You have the constitutional right to remain silent. In general, you do not have to talk to law enforcement officers (or anyone else)
And another from a lawyer
When a police officer or someone from law enforcement wants to talk to you, most of the time they are conducting a criminal investigation and want to make an arrest. It is in your best interest not to cooperate and talk to the police, unless you are the victim of a crime. In fact, you have a Fifth Amendment Constitutional right to remain silent.
Really?
You do not have 5th amendment rights unless you are in custody? I’d think you have those rights 24/7/365 no matter what. You cannot be compelled to answer questions that may be damaging to yourself. Period. No qualification that maybe, sometimes, in certain circumstances you can be compelled.
To be clear, you standing there and admitting whatever to the police before you are in custody is not being compelled and that will see you getting arrested fast.
It’s not so much that you have a right to not talk to the police as they don’t have a right to stop you and ask you questions unless (a) you consent or (b) they have sufficient basis, under the 4th amendment, to seize you (either temporarily, due to reasonable suspicion, or to the extent that they can remove you from the scene, due to a warrant or probable cause for an arrest).
At the point that the law does have the power to compel you to speak (I.e. you’ve been summoned to court to testify, or are in custody and being questioned by police), that is when the 5th amendment applies.
That’s simply not the law. Police can force you to identify yourself. If there’s an exigency, they can demand answers (“where’s the little girl?!”). Not every police officer question is off limits.
But again, that implies that between the time of detainment and arrest, I have to answer their questions. Look at my cites above. You and Dinsdale seem to be the only 2 people to say I don’t have a right under the 5th Amendment to not talk to police if they detain me.
Which misses the point. They can ask whatever they want but I have a right not to answer.
You yourself provided a cite that says otherwise. Unless you think the 5th amendment is superseded by state law.
I think any question is permitted. The issue is what you have to answer. Identifying yourself is one you must answer. I am not sure who the arbiter of what constitutes a question that could harm you is other than you. I suppose a judge could rule on that. I know if the person is given immunity from prosecution on a particular topic that person can no longer claim the 5th either (as regards that topic).
Not much.
But that’s not because there’s an affirmative law that says so. It’s because there’s no law that compels you to answer those other things.