Should I Speak to the Police?

It’s estimated by the U.S. Bureau of Justice Studies that more than 61 million people over the age of 16 have at least one encounter with police in the U.S. each year. Some of these are initiated by individuals seeking help from law enforcement. Others were police-initiated contacts, where police stopped or approached individuals in the course of carrying out their duties. 

About 17 percent of those encounters result in an arrest (somewhere around 10 million annually, according to the FBI). Arrest likelihood depends on numerous factors, but there’s too often misguided concern that not speaking to police increases the odds of ending up in handcuffs. 

The truth of the matter is: It’s your constitutional right NOT to speak to police. You probably know it better as “the right to remain silent.” What’s more, any defendant, suspect, or person of interest in a criminal case is almost always better off exercising that right - clearly and quickly. 

There’s an old defense lawyer adage to the effect of, “Nobody talks, everybody walks.” It’s a pithy way of saying the more you - and any co-defendants - talk to police, the more evidence you’re providing to later be used against you.

Of course, you might not always know whether you’re a suspect or person of interest - and the police don’t have an obligation to tell you. This is why even if you’re innocent, if you aren’t sure the reason for the encounter or if the line of question is leading in a direction that makes you uncomfortable, it’s best to firmly exercise your right to remain silent until you can talk to a defense attorney. 

In 2004, the U.S. Supreme Court ruled in Hiibel v. Sixth Judicial Circuit Court of Nevada that a suspect can be lawfully arrested and prosecuted for refusing to give their name during a police stop. So if state law requires one to identify themselves to an officer upon request, refusing to do so can lead to arrest.

Florida’s “stop and identify” statute (referred to as the “Stop and Frisk Law”) is F.S. 901.151. It states that if a law enforcement officer encounters a person under circumstances that would reasonably indicate the individual has committed, is committing, or is about to commit a crime, the officer is allowed to temporarily detain the person for the purpose of determining their identity and the circumstances surrounding the person’s presence in that situation which lead the officer to believe the individual was involved in a crime. You aren’t required to help them with the second part of their duties. 

There are really only two (maybe three) police requests for information with which you’re legally obliged to comply:

• Your full and correct name. 
• Your driver’s license/identification and/or proof of registration and insurance when asked by an officer during a traffic stop. If you don’t have these documents, you may choose to remain silent. 

If a police encounter stems from a traffic stop, the driver may be obliged by Florida’s implied consent law, F.S. 316.1932, to submit to a breathalyzer test at the request of an officer with reasonable suspicion that the driver is operating a motor vehicle under the influence of drugs or alcohol. Refusal to comply will result in an automatic, one-year license suspension. (Some people take their chances with this anyway and still refuse, hoping to deprive prosecutors of the evidence breathalyzer results would yield. But the consequence is still an automatic one-year license suspension.) Still, even complying with this request doesn’t require much conversation one way or the other. 

If you’re given a ticket, you may need to provide your name and date of birth and sign the ticket. 

Information you are not obligated to share with police:

• Where you are going.
• Where you are coming from. 
• What you are in the process of doing. 
• Where you were born, whether you’re a U.S. citizen, or how you entered the country. (You might opt to provide information about your immigration status if asked, but have the option of choosing to do so only if you’re carrying your papers and are ready to show them.)
• Where you work. 
• Where you live. 
• Where you go to school.
• Whether you’re in possession of drugs or alcohol. 
• Whether you’ve recently consumed drugs or alcohol. 

Remember that lying to the police is a crime (even though they can lie to you). Staying silent is not. When you voluntarily provide information or answer police questions, you are effectively waiving your right to remain silent. 

To exercise your right to remain silent, you must clearly tell the police, “Respectfully, I refuse to answer any questions until I talk to my lawyer.” And then (this is important): Stay quiet. Don’t give excuses or explanations. Don’t say anything. Don’t sign anything. Don’t make any decisions until you have talked to a defense lawyer. If they continue to ask questions, repeat yourself: “I am exercising my right to remain silent and wish to speak to a lawyer.” 

If the police continue to press you for information after you’ve already clearly stated your intention to stay silent and consult with a lawyer, any responses you give thereafter may later be suppressed in court. 

As longtime Broward criminal defense attorneys, we understand that refusing to answer an officer’s questions can be intimidating. Here are a few different ways to say the same thing:

• “My attorney told me never to answer any questions without him present.”
• “I don’t have anything to say about that until my lawyer is here.”
• “I prefer to exercise my right to remain silent until I talk to an attorney.”
• “I prefer not to answer any questions until my attorney can be present.” 
• “I’m sorry, but I won’t answer any questions or give any statements until my attorney is here.”
• “I’m going to need my attorney here before I can answer any of your questions.”

There is no legal requirement that you be respectful to police during these encounters. However, it’s generally a good idea. You can decline to speak without being disrespectful. Being courteous isn’t a guarantee you’ll avoid arrest, but it doesn’t hurt. Insulting or disrespecting an officer is likely only to make things worse. Irritate an officer enough, they may decide to arrest you when they otherwise might not have. Plus, if you’re insulting an officer, you’re not staying silent. 

You are NOT required to consent to any police search - of your house, your car, your belongings, or your person. That doesn’t mean the officer won’t search you. It also doesn’t mean you should be argumentative, uncooperative, try to flee, or resist the officer who is conducting the search. You risk arrest for such actions. 

However, by clearly and calmly stating, “I do not consent to this search,” it puts the onus on police to prove they had lawful grounds to conduct that search. It makes crystal clear that you aren’t submitting to the search voluntarily, and thus you preserve your right to later challenge the officer’s reasons for that search - and the viability of any evidence uncovered thereafter - in court. 

In general, it’s a good idea to keep your vehicle and entryway clear. Any potentially incriminating items that are in “plain view” of an officer conducting duties may be lawful grounds for them to initiate a more thorough search. 

If you have additional questions about a specific police encounter - or you need a lawyer immediately after your South Florida arrest - we can provide assistance. 

If you have been arrested in South Florida, call The Ansara Law Firm in Fort Lauderdale today for your free initial consultation at (954) 761-4011.