Why Remain Silent?

January 20, 2012

One of the most common questions I am asked is why I recommend people never talk to the police if they have nothing to hide.  I will try to explain that here today.  Many people talk to the police when they are stopped in a car stop because they want the officer to be nice to them when deciding what tickets to issue.  The fact is, however, that anything you say can set a trap for you that will end in you being arrested.  The police have the power to stop a vehicle when they see that vehicle violate a traffic law.  This is called reasonable suspicion.  Generally, the police do not arrest people for a traffic violation, but they do use the conversation during a traffic stop to investigate whether there are any other crimes being committed for which they can arrest you.  You are not required to engage in this conversation, and I advise you not to do so.  

The U.S. Supreme Court has held that the police can stop you and keep you at the scene of the stop for a reasonable amount to time to conduct the investigation and issue the tickets for the traffic violation they stopped you for.  If, however, the officer engages you in a conversation and you willingly sit there and talk to him, it will be difficult for the courts to determine how long the time period the officer kept you at the scene is reasonable.  At some point courts will find that you were not longer being detained by the officer but were voluntarily engaging the officer in a conversation.  This voluntary dialog - or consent dialog - is where most people get themselves into hot water.

The U.S. Supreme Court has said that police can talk to citizens who consent to talk to them for as long as the person continues to consent to the conversation.  Basically, the police can talk to you as long as you will let them.  Oftentimes the officer is trained to ask questions of you that seem like ordinary chatter, but are actually designed to give them probable cause to either search your vehicle or arrest you for a crime.  Asking where you are coming from or going to may seem like a harmless question, but may actually lead you down a path to being arrested.  If you admit you are coming from a high crime area, the officer can then investigate whether a crime has recently been reported in that area, or if you or your vehicle have been reported near a recent crime scene.  If you tell the officer you are going into an area that is known as a drug dealing area, then you have just given him reason to ask further questions about what you do for a living and more.  

When an officer asks you what you do for a living he is not asking just because he wants to make small talk.  Instead, he wants to see if your style of dress and your vehicle match what he would expect someone who does the kind of work you do to wear and drive.  If they do not, and you have admitted you are coming from, or heading to, an area known for drug dealing, then the officer has a more reasonable suspicion that you may be engaged in drug dealing, or other criminal activity.  

The fact of the matter is, that talking to the police about anything without a lawyer present is generally a bad idea.  Even if you have nothing to hide, you cannot possibly know how an officer will interpret your answers, and what conclusions he will draw from them.  Officers are trained to develop probable cause to make an arrest through simple questions.  If you are stopped follow our Three Document Rule and avoid all other conversation with the officer.  If the officer keeps asking you questions do not get defensive.  Rather say, "Please tell me when I am free to go.  i do not want to be rude, but I do not want to talk to you about anything without my lawyer Jamie Balagia present."  

One of the common tricks you will see officers use when you say this is, "Why do you need a lawyer present?  Do you have something to hide?  Only people guilty of something need a lawyer."  It is tempting to say, "I don't have anything to hide.  I just want to go."  But, resist that temptation.  If you simply cannot control yourself and have to say something, then repeat the above saying.  If you answer with anything else you have opened the door for the officer to ask you questions about whatever it is you say.  You are now on the defensive and emotionally you will be inclined to prove your innocence to the officer.  This is not your job.  The officer has to develop probable cause that you are guilty of a crime before he can arrest you.  By remaining silent you are removing one of the most used tools from his arsenal in developing probable cause.