Does pleading the fifth effect probable cause or reasonable suspicion?

Let’s say you are testifying in a US court and are asked a question which would incriminate you if you answered truthfully, so you plead the fifth. Provided the question was specific enough, does doing so then give law enforcement probable cause or reasonable suspicion to search your person or your property, or to arrest you?

Example: You are asked, “Do you currently have child pornography on your home computer?” and plead the fifth. Can a police officer use this refusal to answer as the sole basis for obtaining a search warrant to seize your home computer?

Another example: You are asked, “Do you have any illegal drugs upon your person?” and you plead the fifth. Does this alone entitle the court to arrest you on suspicion of possessing illegal drugs, or to search you on the spot for same?

A less specific example: You are asked, “Do you currently have anything of an illegal nature in your home?” and you plead the fifth. Though no specific crime was mentioned, does this give the police grounds to obtain a search warrant for your house?

As always, if answers vary by jurisdiction, please let me know.

IANAL but the whole point of the fifth and fourth amendments is to prevent this type of situation.

I also believe that juries are instructed not to interpret a witness taking the Fifth as a sign of guilt (though I have no firsthand experience with that).

IANAL either, but I’m certain that pleading the fifth cannot be used as any indication of guilt, and that any prosecutor that tried that would be in big trouble. Here’s what the SC said about the fifth back in the fifties:

The opinion of the court on the case Ullmann v. United States.


No, no and no.

But, if the police are asking these questions, they should have enough reason, outside of your refusal to self incriminate, to obtain the warrants for the searches.

In the second case, The police will search you if they think you have something illegal on you. You can’t really disallow this. The only protection you have here is challenging their reasons to decide to search you - after the fact. Struggle and they’ll do it with force.

Indeed; these other reasons are known as probable cause (your right to silence is not one of them). If you refuse, police can search under plain view rules, meaning they don’t need a warrant (which would mean that a judge/magistrate agrees that there’s probable cause) if evidence of illegal activity is…well, in plain view. If you refuse a search and get searched anyway without a warrant and without anything in plain view you, or rather your lawyer, can file a motion to suppress whatever evidence was gained in the illegal search.

Realistically, if they have reason to suspect you of any crime and wish to search you and things aren’t in plain view, they’ll present these reasons to a judge and get a warrant.

But this is a different situation than in the OP. The Fifth Amendment only applies in a court or equivalent legal setting. The police aren’t asking those questions in any setting where the Fifth can be an answer. And you can’t apply the Fifth when talking to the police. You can refuse to answer, but you can’t apply the Fifth.

IANA criminal lawyer, but I’m pretty sure that the right to silence when answering might incriminate you always arises from the Fifth Amendment. You have that right no matter when the Government is questioning you. If the police are questioning you in a custodial interrogation (i.e., you can’t leave), the difference then is that they are required to inform you of that right as per Miranda, but the right is always there. The point of the Amendment is not just to protect you from having to incriminate yourself in court, but also to protect you from having to make incriminating statements that could later be used against you in court.

As for the OP’s question, I do not think that invoking the Fifth can itself constitute probable cause for a search under the Fourth, but I do not have a cite.

Note that the invocation of the Fifth Amendment can be used against you in a subsequent civil case. The court in the civil case can instruct the jury that they may draw an adverse inference against the defendant.

Miranda certainly did rely on the Fifth Amendment (and the Sixth Amendment as well) but there’s a distinct difference between invoking one’s Fifth Amendment rights in the court setting given by the OP and while being interrogated by the police. You do not have to answer police questions. Any questions, whether they’re self-incriminatory or not. It is their job to make a case against you without your cooperation. They cannot punish you (formally, at least) for not talking. You also don’t have to answer any questions about others and their crimes.

You do have to answer all questions put to you in a formal court setting. You will be punished if you don’t answer. The only way out of this is to invoke the Fifth Amendment. But that applies only against oneself. You can’t get out of talking about other peoples’ crimes that way.

Both situations involve the Fifth Amendment, true. But that doesn’t make them equivalent. In practice, they are totally different.

Yeah, that’s all wrong.

Your right not to incriminate yourself is a construct of the Fifth Amendment. This is true in every situation in which you invoke this right. You don’t need to formally “plead the Fifth” for the right to be active. It is true that you don’t have to answer law enforcement questions. But if you say “I refuse to answer on teh grounds it may incriminate me” to the cops in an informal setting – they have to take that answer just like they have to take it in a courtroom.


Which of us is all wrong?

If me, can’t you equally say “I refuse to answer on teh grounds that I hate the police” and get away with it?

My point is that the Fifth Amendment gives you a protection in a court setting (not getting cited for contempt) that is different from the protection that it gives you in a police setting. Isn’t that correct?

You can refuse to answer on any grounds you like. But its the fifth and the first amendments that will protect you…somewhat.

If the fifth amendment doesn’t apply, you may be commiting such crimes as obstruction or contempt of court, depending on the setting.

And the fifth amendment applies to both police interrogation and to a court setting. The Miranda rights a police officer tells you are there to remind you of the 5th amendment rights, among others.

A friend who is a lawyer told me that if you don’t want to answer a police officer’s question, you should simply say something like, “I would rather not discuss it.” Politely. Obviously this does not apply to things like providing your driver’s license at a traffic stop.

The one time I was on a jury the defendant chose not to testify. The judge told us very firmly that it was his right not to testify, and that we were not to consider that in any way.

Certainly when you are a defendant in a trial, a jury cannot convict you on the basis of your invocation of your fifth amendment rights. But my question isn’t about that. I’m asking not whether pleading the fifth in court is proof of guilt, but whether it triggers sufficient reasonable suspicion or probable cause to perform a search or an arrest. If it helps, think of the case where you are testifying as a witness rather than as a defendant.

Several of the above answers clearly answer the question: No.

Keep in mind that “I do not recall” is a valid way to plead the 5th without implying any kind of guilt or wrongdoing. A response like that quite clearly does not provide any reasonable cause for a search.

IANAL, but my layman’s understanding is that the authorities cannot use the 5th as any sort of probable cause because you don’t have to provide any explanation for using the 5th. For a rough example, you’re asked " were you with X at the time he was alleged to have committed the burglary?" Well, you were with X, but it was at an illegal platypus fighting ring. If you answer, the follow up questions will implicate you in a completely unrelated crime.
Realistically, A plead of the 5th will probably raise suspicions. Legally, a plea of the 5th means that you refuse to answer the question for whatever reason and the police/DA has to find your reason independently.
Not a great legal example, but from a layman to a layman, the best I can do.

I don’t think you and Cliffy are in disagreement, actually, but there’s nothing incorrect about what you’re saying.

The Fifth Amendment permits you to simply refuse to talk to the police. In a courtroom setting, you must actually claim the Fifth Amendment, theoretically on a question-by-question basis. In practice, you will have an attorney that has advised the court of the scope of your self-incrimination claim.

And in court, as noted above, the judge may compel you to testify by granting you use and derivative use immunity. This means that your testimony, and any evidence gained from your testimony, cannot be used to prosecute you.

Note that you could still be prosecuted on the crime for which you were granted immunity. The government would have to show that the evidence they have against you “…is derived from a legitimate source wholly independent of the compelled testimony.” (Kastigar v. U.S.)

So the Fifth Amendment protects you in a courtroom setting, but a grant of use immunity means that while you’re still protected from self-incrimination, you have to testify.

Your testimony could, by the way, be used to establish probable cause against another person, toi wind our way somewhat circuitously back to the OP’s question. So we might imagine you being hauled in front of a grand jury investigating mopery. You’re asked what you know about the mopery and dopery operations in the city, and you take the Fifth. The judge responsible for the grand jury then grants you immunity, and you are now forced to testify. You tell the grand jury that you and Kevin ran the mopery rackets together. That creates probable cause for the grand jury to indict Kevin.

Not exactly what the OP was looking for, I know.

What happens if Kevin then rolls on you and is willing to testify against you? far enough removed that it doesn’t trigger 5th amendment concerns?

Once they have read you your rights, say only two things:

“I want my/an attorney”
“Am I free to go?”

This is per the ACLU and a Judge friend of mine. The police would like you to think that lawyering up makes you more suspect, but it does not in actuality. It’s very common even among the innocent. It does not make you look more guilty. In fact, I have heard them say; “The @#$%& got smart and lawyered up”.

To answer your question another way, when Mark Fuhrman plead the 5th on cross examination on the OJ trial, Marcia Clark knew that she just lost the case, because she knew the jurors would find out(from family) that Mark took the 5th and that he lied in his testimony.

If I was ever on a jury and if I saw the prosecution take the 5th on cross, i would automatically vote Not Guilty.

So my answer , is yes, it would matter to me, if either side took the 5th, in the jury trial itself. People do not take the 5th for no reason when they are on the witness stand.

(However, If someone took the 5th in a private conversation with the cops, that is what he should do)