(Last Updated On: May 20, 2020)

Police Questioning Prior to Arrest

If you haven’t been arrested, but a police officer wants to question you about a

crime, what should you do? Here are some tips.

Refusing to answer a police officer’s questions is not a crime. Of course,

people often voluntarily assist the police by supplying information that might

help the police make an arrest. But the Fifth Amendment to the U.S. Constitution

guarantees the “right of silence.” A police officer generally cannot arrest a

person simply for failure to respond to questions. This means that unless a

police officer has “probable cause” to make an arrest or a “reasonable suspicion”

to conduct a “stop and frisk,” a person approached by the police officer has the

legal right to walk away. But the fact that there may be a legal right to walk

away doesn’t mean this is a wise move. This is because there is no real way to

tell what information the officer is using as a basis for his or her actions.

In fact, the officer may have information that gives him or her a valid legal

basis to make an arrest or to conduct a “stop and frisk,” even if the individual

is, in truth, innocent of any wrongdoing. If that is the case, an officer may

forcibly detain an innocent individual who starts to leave the scene of an interview.

Common sense and self-protection suggest that people who intend to walk away from a

police officer make sure that the officer does not intend to arrest or detain them.

A good question might be, “Officer, I’m in a hurry, and I’d prefer not to talk to you

right now. You won’t try to stop me from leaving, right?” If the officer replies that

the person is not free to leave, the person should remain at the scene and leave the

question of whether the detention is correct to the courts at a later time.

Even though, as a general rule, a person doesn’t have to respond to a police officer’s

questions, this may not hold true if the officer suspects the person of loitering.

Laws in effect in many states generally define loitering as “wandering about from

place to place without apparent business, such that the person poses a threat to

public safety.” Under these laws, if a police officer sees a person loitering,

the officer can demand identification and an explanation of the person’s activities.

If the person fails to comply, the officer can arrest the person for loitering.

Therefore, the refusal to answer questions is a problem only if the officer has

also observed the person loitering.

Another situation where answers to police questions are usually required is when

drivers are stopped for suspected traffic violations. Traffic offenses such as

speeding and unsafe lane changes are generally classified as “infractions,”

for which drivers are given citations in lieu of arrest. However, an officer

has the right to demand personal identification — usually a driver’s license

and the vehicle registration. A driver’s refusal to supply the information

elevates the situation to a more serious offense, for which the driver usually

can be arrested. The simple refusal to answer questions is not a crime, but

the refusal to supply identification, combined with the suspected commission

of a traffic offense, is.

Miranda Warnings and Pre-Arrest Questioning

People are often surprised to learn that if a person hasn’t yet been arrested,

the police may question the person and use the answers in court without first

providing the familiar “Miranda warning” that advises people of their constitutional

right to not answer questions and to have an attorney present if they do decide to

talk to police officers. In fact, the Miranda warning is required only if the

person being questioned is in custody.

Deciding Whether to Answer Pre-Arrest Questions

Whether or not to respond to police questioning generally depends on the person’s

possible relationship to criminal activity, the person’s views of his or her civic

responsibilities, and the person’s past experiences with the police. If, however,

the questioning involves events that may result in criminal charges against the

person being questioned, the almost universal advice of defense attorneys is to

keep the old mouth tightly shut. Suspects all too frequently unwittingly reveal

information that can later be used as evidence of their guilt. The right to not

incriminate oneself guaranteed by the Fifth Amendment to the U.S. Constitution

is especially powerful in this situation. A person who has reason to believe that

he or she is a potential suspect should politely decline to answer questions, at

least until after consulting an attorney.

The Right of the Police to Conduct A Stop and Frisk

A police officer may stop a person in order to question them if the officer has a

“reasonable suspicion” that the person is engaged in criminal activity. And for

self-protection, the officer can at the same time carry out a limited pat-down

search for weapons (a “frisk”).

In two cases decided in the 2000 term, the U.S. Supreme Court interpreted the

“stop and frisk” rule. In one case, the Court ruled that running away from the

police is enough of a reason for the police to stop and frisk the defendant.

In another case the Court ruled that an anonymous tip that a suspect might be

armed was insufficient justification for the police to conduct stop and frisk,

absent other facts demonstrating the reliability of the tip.

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