Do I have to talk to the police?

Welcome back to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys which spans Florida from Tampa and Orlando to Miami.

In this edition, our roundtable will discuss your rights when it comes to encounters with law enforcement. A fundamental question when it comes to dealing with an encounter with law enforcement: Do I have to talk to the police?

Today we are asking that question of Miami-based Attorney Jeremy Simons, Tampa-based Attorney Zonald Spinks, and Attorney Kevin Fuller:

Many are familiar with the fact that everyone has the right to remain silent and the right to an attorney. And when someone is in custody law enforcement must issue what is known as the Miranda Warning, also known as Miranda Rights, which outlines those rights. A 1966 Supreme Court ruling in the case of Miranda v. Arizona set the standard for peoples’ right to silence and to an attorney. It may helpful to read this synopsis issued by the United States Courts in understanding the Miranda case:

“The Court held that “there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” As such, “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

The Court further held that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would otherwise do so freely.” Therefore, a defendant “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

While Hollywood has seared the dramatic take on law enforcement’s reading of Miranda into the public consciousness, real-life encounters with police can take on a gray area, our attorneys told me. Fear and a lack of understanding of the law can leave people discussing things with law enforcement without knowing it could be later used against them in court.

I would never advise anyone talk with the police without having an attorney present. Everyone has the right to an attorney. The minute you state you want an attorney the police are supposed to stop asking you questions. Law enforcement must also advise someone they have the right to an attorney if there is reasonable belief that a person is in custody. But realistically people will often believe that if they are talking to the police they don’t have the right to turn around and walk away, so law enforcement – because they don’t have that person in custody – can ask all the questions they want, without reading someone their rights. And they will continue to ask questions until they hear what they want.

Also, a lot of times people want to talk their way out of it when they get themselves into a situation with law enforcement. But most likely if the police are talking to you there is a reason or they have a motive so you won’t be able to talk your way out of it. If they police want to talk to you and you invoke your rights they will either arrest you because they already have what they need whether you talked or not, or they have to stop talking to you even if they need more. So thinking you can talk your way out of something is not the way to go. Nine times out of ten a client will tell me ‘I didn’t do it.’ Whether that’s the truth or not, if you have said anything regarding your case it can be used against you in court, so it’s your word against an officer and a jury is likely going to believe law enforcement.

No, my first impression is to always have your attorney present. You can be detained and questioned without being under arrest so a lot of people incriminate themselves during that detainment. If the police are talking to you do not assume that you are under arrest. Chances are if they had the probable cause they needed to make an arrest they would have already arrested you.

Also, a lot of people don’t know that the police can lie to you about different things in order to get a confession. For example, they might say someone saw you at the scene of a crime when it didn’t really happen to try to get a confession out of you. It’s a common tactic among police. Another thing to remember is that the police are smarter than you because this is what they do for living. You are an amateur going up against a professional. It’s always within in your right to ask “Am I under arrest or am I free to leave.” That’s your right. With that said, it’s also important to always keep in mind that generally you are not going talk your way out of it.

First, you have to think about what capacity you are in. Are you a suspect? Are you a witness? Are you a victim? People need to always realize that Miranda doesn’t have to be given unless you are in custody. The police will ask you a question and then sit back a let you talk and talk. People try to be buddy buddy and fill uncomfortable silences and end up incriminating themselves.
Law enforcement is there to get evidence. And law enforcement can make promises that really mean nothing but can get people talking. They might say if you cooperate we will let the state attorney know and they will go easier on you.

People should also know that if they are in a police station or in a police vehicle under the law they have no expectation of privacy so they should handle themselves as though they are being recorded. You see all the time investigators leave someone in a room alone for periods of time and inevitably they pull out their phone and call someone and start talking which can all be used in court.

My view is better safe than sorry and get an attorney. You can’t go wrong. You can still talk to law enforcement if you have information you want to give them, just have your attorney there so he or she can advise you if the questions they are asking start to turn against you. If you have nothing to worry about, you can still go in with an attorney just in case it takes a turn.

People should also be very conscious of when they are officially in custody which is anytime someone reasonably believes they can’t leave. Some people might think that they would be in handcuffs at the point. But that’s not always the case. Say you are in a house and the police show up and are blocking the door or tell you to sit down if you get up and try to leave. At that point, someone can reasonable believe they are in custody because they are not allowed to go.

That wraps up today’s roundtable discussion. Be sure to look around our website for more in-depth articles on criminal defense, and protecting your personal rights.. Meanwhile we hope to see you come back to the Ayo and Iken roundtable.