Being stopped by police can be a nerve-wracking experience for any law abiding citizen, which means that it is all the more important for you as the driver to know your legal rights when you have been stopped, detained, or arrested.
Police officers are sworn to uphold the laws of the state, so when an officer pulls you over, s/he has either stopped you on suspicion of violating the law, or have pulled you over looking for criminal activity. A traffic stop is the officer’s opportunity to collect evidence of a potential crime that has been committed; therefore, when you are pulled over, it is imperative that you know that you have the right to remain silent throughout the process.
The Right to Remain Silent
Let’s first turn to the Fifth Amendment of the Constitution of the United States. It provides that “No person shall . . . be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” The Constitution is broad document and as a lawyer in our common law system, we find out the scope of these Constitutional rights by the reviewing the Supreme Court jurisprudence (which is really just a fancy way of saying case-law developments).
Police Custody, Questioning, and Probable Cause
The specifics of this right can be a bit tricky, but if you’ve been stopped on suspicion of criminal activity, it is your right for you to not provide evidence against yourself. For someone who is not an expert on constitutional law, a good rule of thumb is that you are in police custody if you do not have the freedom to leave. So when you’re stopped by police, it’s good to first clarify whether or not you are in police custody at that time. The custodial requirements for officers hinges on whether the police have probable cause to effectuate an arrest against you; that is, have police seen sufficient evidence of a crime to arrest you?
Invoking The Right To Remain Silent
How does one invoke their right to remain silent? This can be a bit tricky as well. Just recently, the Supreme Court ruled that in order to invoke your right to remain silent, a defendant must affirmatively invoke it to be protected. Meaning that your silence may not be protected if you do not say out loud or provide some other means of conveying that, “I am asserting my right to remain silent.”
Why does this matter? I know it may seem like a peculiarity, but this is an important evidentiary matter. When police are asking you a question, the prosecution can use evidence of your silence as an adoptive admission. This means that if you were silent when the officer asked you a question that a would implicate you in a crime, your silence can be used as evidence that you did not provide an answer an officer’s legally operative question. Thus, silence alone can be used as evidence that you committed a crime unless you affirmatively do SOMETHING to assert your right.
You Have the Right to an Attorney
Similar to your right to remain silent, invoking your right to have an attorney present during questioning is a paramount legal right in criminal law. Most people know that they have the right to an attorney, but they do not know that if an officer knows that you are represented by counsel or that you have requested an attorney, or asked if you need one, you have invoked your right to counsel.
Once you have invoked your right to counsel, police may not continue with their line of questioning until they have located an attorney. This applies even if an officer has pulled you over on suspicion of driving under the influence. An officer must attempt to reach your attorney or an attorney so that they may question you. Moreover, the attempt to locate an attorney must be longer than 15 minutes.
Assert Your Rights
On the back of our business cards here at Evergreen Defenders P.S., we try to make sure that our clients know what their rights are, and since we’d really like to make sure you know when to assert your rights. Every one of Ms. Chirichillo’s cards states
To Law Enforcement Can Call Collect After Hours:
- I have provided you with my driver’s license, registration, and proof of insurance.
- I will not be answering any questions or making any statements.
- I will not be volunteering to perform field sobriety tests.
- If you have probable cause to arrest me, I WILL blow in a BAC machine at the station or agree to a blood draw.
- If I am NOT under arrest, I wish to leave.
- If I am detained or placed under arrest I wish to speak to Ms. Chirichillo immediately, her 24/7 phone # is (360) 888-5783.