Your Right to Stay Silent

Police Must Have A Reason To Stop And Question You!

The most common scenario presented to me as a criminal defense attorney is that my clients are walking down the street, usually on their way to a party, and the police stop them to question them about whether or not they have been drinking. Many times these students are in a group and are walking on campus at late hours, sometimes early in the morning.

One of the students or friends may be extremely intoxicated and exhibiting these signs outwardly, stumbling or acting impaired. This can be enough to arouse the suspicion of the police and cause them to conduct a Terry stop.

This is named after a United States Supreme Court case, Terry v. Ohio that stands for the basic principle that the police must have reasonable and articulable (meaning they can articulate or state the reason) suspicion that there is possible wrongdoing or illegal conduct.

If the police do not have reasonable and articulable suspicion of illegal conduct, they are limited in their encounters with citizens and the failure to articulate this suspicion could lead to the case being dismissed by either the prosecutor or the judge following a motion being filed by the attorney.

If the police do have reasonable suspicion, such as visible intoxication or one of the group members runs upon seeing the police, they have the right to detain the individuals and question them briefly about their situation.

Case Study…

Our office represented a student who we felt had been illegally interrogated in his dorm room with regard to the issue of whether or not he had been drinking. We also felt he may have been administered a PBT unlawfully. 

We filed all the appropriate motions and even though the judge ruled against our client on the motions, the client was able to plead under the diversion program and keep his record clean from any misdemeanor charges. This is a good example of the fact that a student is typically not punished for hiring an attorney and exercising their right to file motions and have a trial.

– By William A. McNeil, Of Counsel to The Law Offices of Raymond Purdy

You Have The Right To Remain Silent!

An initial stop by the police usually results in them detaining the entire group, including those that are in the vicinity. This can obviously lead to problems if an individual is not a member of the group and just happened to be nearby.

The police will usually begin their interrogation by asking the group if they have been drinking that night.

Too many students give up all their Constitutional rights at this very moment and tell the police everything, or as one student told me he “spilled his guts” to the police.

Students need to remember that they have the absolute right to remain silent and to NOT incriminate themselves.

It seems corny to regurgitate what we so commonly hear on TV, but Miranda rights come from another United States Supreme Court case, Miranda v. Arizona.

Miranda Rights

You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney one will be appointed for you. Do you understand these rights as I have read them to you?

These are standard rights that are read to students when the police intend to interrogate a suspect while they are in custody.

What the students and most individuals do not understand is that the police may question, interrogate, and try to pry statements out of individuals as long as they are NOT in custody. This means that they as long as the police tell the individual, or the situation dictates, that they are free to leave, the police can question away.

Our office litigates this issue often, arguing that students are not free to leave much of the time and are questioned without the benefit of Miranda. Many judges dismiss this argument and side with the police, who always answer that the individuals were not in custody and were free to leave.

A situation in a dorm room can be very coercive with several police officers crowding a room with intoxicated students being questioned. However, regardless of the obligation placed upon the police officers, the right to remain silent in EVERY situation is guaranteed by the Constitution.

Remaining Silent Can Help Your Case!

The main thing to remember is that you have the right to remain silent! In my ten years of representing students, I have had maybe one or two individuals exercise this right. Not surprisingly, their case is much, much, MUCH easier to defend due to the fact that there are no confessions that can be used against them in court.

What To Tell The Police

This phrase can preserve your rights. Share it with your friends.

I am willing to cooperate with your investigation and I can provide you with my identification and basic information.

However, I am exercising my right to remain silent and will not answer any questions relating to possible criminal activity. 

I respectfully request an opportunity to speak with my attorney as soon as possible. 

This is the biggest misconception held by students and most individuals. Most people are raised to NEVER lie to the police and to always tell them the truth. The problem with this is that you are giving up your Constitutional rights that we have all fought so hard to defend.

The police are not your friend and will try to tell you everything under the sun to get you to confess to them. They will tell you that things will go better for you, that they will put you in jail if you do not tell them the truth, that they will not recommend charging you if you cooperate, etc.

However, if you exercise your right to remain silent, they must prove their case independent of a confession and the prosecuting authority must prove their case BEYOND A REASONABLE DOUBT. This means that if there is any doubt at all that is reasonable, the jury must come back with a verdict of NOT GUILTY.

You Can Plead NOT GUILTY At Your Arraignment

Another misconception held by students and most individuals is that they must plead guilty at their first court appearance because “they are!”

I have explained this phenomenon in another chapter but it is worth mentioning again here. You always have the right to plead NOT GUILTY whether or not you think you have committed the crime you are charged with.

Every criminal defendant has the right to demand that the prosecuting attorney prove their case beyond a reasonable doubt. Every criminal defendant has the right to NOT testify and the fact that they are not testifying CANNOT be used against them or mentioned by the prosecuting attorney. This is guaranteed by the Constitution’s Fifth Amendment.

Search And Seizure Law

Another area that is widely misunderstood, and rightly so, is the area of search and seizure law. After an entire semester of Criminal Procedure and ten years of criminal defense practice, I still encounter confusion as to the rights of individuals to be secure in their homes and their person.

I intend to relay the basic principles that govern the 4th Amendment to the Constitution of the United States, but the scope of that amendment and all of the staggering exceptions to the basic rule is beyond this book. I would encourage any student who is interested in further research regarding this issue to pick up a book on basis search and seizure law.

Your Dorm Room Is NOT Your Castle

As it relates to students, the common question I get is the rights that they have relative to their dorm rooms. This is a very complicated question because it involves a temporary home that is owned and controlled by the university and their housing officials.

I typically see housing authority officials making the initial contact with students and then calling university police to assist them in making arrests. I do not believe that students have the right to deny entry into their dorm rooms if requested by a housing authority official.

This is due to the fact that it is not their permanent home and is owned by the university. However, some attorneys will argue or litigate the issue of whether or not university officials can open a closed or locked dorm room door.

You should consult your college’s rules and regulations regarding dorm rooms or ask you Resident Agent regarding your rights. However, there are certain things that can be done to minimize the damage that can be done by a Housing Authority official.

You Do NOT Have To Speak To The Housing Authority!

First, it is very unwise to drink or have illegal substances in your dorm room. However, many students elect to drink in the privacy of their rooms versus going to parties on campus or at fraternity or sorority houses.

If this happens, and it does quite often, the main thing a student can do to help their case is not make ANY statements to the Housing Authority. A housing official has no more rights than a police officer to force an individual to make incriminating statements.

The less you say, the better chance you have of helping your case. Long gone are the days where an RA would simply pour out the beer and write you up. In Michigan, it is common for an RA to get the police involved to break up the party and issue everyone involved Minor in Possession tickets.

Anything you say to a housing official, or to ANYONE for that matter, can and will be used against you in court. This includes statements made to your friends or acquaintances. They can be questioned about what was said by the defendant and it will come into evidence and be used against you.

House Parties

If you find yourself at a house party or at a fraternity or sorority house, your rights are limited as you are not the owner of the home and do not have standing (or the right) to claim that it was an illegal search and seizure by the police.

However, the owner of the home can refuse to allow the police entry and force them to get a warrant. This means that the police will have to draft an affidavit for search warrant and wake up a district court judge or magistrate in the middle of the night to sign and authorize entry.

There are exceptions, of course, to this right to refuse entry, but the basic principle is that the owner of a home has a 4th Amendment right to be secure in their home from unwarranted searches and seizures.

This is why it is so difficult when students spill out on to the porch to enjoy the early fall or late spring weather, or if the party is being held outdoors. The owner of the home gives up some of their expectation of privacy and the police have more rights to question individuals found outside of the home.

Practice Alert 

You need to be aware of a new tactic being employed by prosecutors and judges in the fight to curb underage drinking. Minors who host a party can be liable for a crime we call “social host”. Some jurisdictions are even putting kids in jail on first offenses to send a message about these large and loud parties being held in off-campus apartment communities.

Automobile Searches

If you find yourself in a vehicle, the case law across the country has chipped away at 4th amendment rights due to the fact that a vehicle is mobile and people should expect to have a lesser expectation of privacy in their vehicle.

However, I still advise students and individuals to refuse to allow the police in to their vehicle if asked. The police will then be forced to secure a warrant to enter your vehicle and search its contents.

The common exceptions to this rule are if the driver is arrested for any reason (driving while license suspended, no insurance, no registration, etc.) then the police have the right to search the vehicle “incident to arrest”. If the police see beer cans or anything that may indicate illegal activity in “plain sight”, they may have the right to search the vehicle.

However, the scenario that I find interesting is when there are passengers in the car who are minors. Typically the police will ask for identification of all the passengers and will question them regarding their activities.

Again, passengers in a vehicle have the right to remain SILENT and do not have to answer any questions other than basic identification. If it is a situation where the driver has been arrested due to suspicion of drunk driving, the police may try to offer the other passengers a PBT (Portable Breath Test) to determine if they are safe to drive.

If the passenger is under 21, I always advise my clients to refuse the PBT as it could incriminate them. In Michigan my Criminal Procedure 101 professor and members of the ACLU fought hard to stop the police from forcing minors to submit to a PBT and won in court.

Be Polite But Stand Firm With The Police On Your Silence!

In summary, the best advice that I can give my clients and students is to always be exceedingly polite to the police. However, do not let their intimidating nature and the stress of the situation force you to make statements that will come back to haunt you and your future.

Review and print out the card provided and do not be afraid to exercise your right to remain SILENT any time that you are being questioned by the police. I give this advice to individuals even if they feel they have done nothing wrong. Too many times I hear stories where honest statements are misunderstood by the police or misinterpreted and used against the innocent citizen.

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