Ensuring Your Right to Remain Silent

DISCLAIMER: I am not an attorney. What is written here is my opinion and how I would deal with the situations described. I am not able to provide legal advice. Consult your own attorney before implementing any of the personal strategies that I discuss. The use of specific pronouns is for clarity and communication only and does not imply advice being given. By reading this you agree that I am not providing legal advice.

The recent Supreme Court decision in Salinas v. Texas [no Wikipedia entry as yet] reminds us just how important it is to never speak to any government official unless you are compelled by law to do so. The gist of the case is that in certain circumstances, and these circumstances as somewhat unclear, your refusal to answer a question, or your behavior when refusing to answer a question, may be introduced as evidence. Generally speaking, under Miranda v. Arizona and Griffin v. California, you had a right to refuse to answer questions either in court or when arrested, and your refusal to answer those questions could not be used against you. Procedurally, this lead to the now famous (thanks to television) “Miranda rights” recitation: “You have the right to remain silent. If you give up your right to remain silent, any thing you say or do may be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you by the court”—or words to that effect (the Supreme Court did not specify exact language).

The question answered in this particular case centered around the issue of what you have to do to claim protection under the 5th or 6th Amendments that protect you against self-incrimination, guarantee you a lawyer, etc. The Supreme Court, in a highly fractured ruling 3+2 to 4 (see the above links for details), said that you have to positively assert your right to keep it. While I don’t agree with the case, it doesn’t really affect me personally because I follow a simple rule—never speak to any government agent or employee unless you are otherwise compelled by law to do so. Make sure you have the necessary information to contact a lawyer, any lawyer, in the case you need to do so. Specialty, doesn’t matter. You just want representation. That initial lawyer will be able to assist you directly, or refer a colleague who is an expert on whatever the matter is (taxes, criminal arrest, etc).

Clearly, there are some instances when you do have to speak to a government agent or employee, such as applying for a driving license, license plates, etc. In those cases, confine your conversation to the exact details of the transaction and nothing more. Other cases include security checkpoints (e.g. TSA, entering a government building, etc), where you cannot pass without answering questions and refusing to answer questions might lead to your arrest. Your only option here is to avoid these checkpoints if at all possible. If you need to pass the checkpoint, you have no options. While I consider these mostly unconstitutional as they prevent my free movement, the Courts have not recognized these rights nor forced the Executive or Congress to remove them.

Let’s take the police first. Generally speaking, so long as you are not driving (we’ll cover that specific instance below), the only thing you are required to do is truthfully identify yourself. You aren’t required to present identification or discuss what you are doing. In such an encounter, it is critical that you remain polite, respectful and courteous at all times.  Keep your hands visible and at your sides at all times. Never make a move away from the officer until given leave to move.

Once you have identified yourself:

  1. Ask the officer if you are free to go. If the answer is yes, say “Thank you” and move away slowly but deliberately.
  2. Ask the officer if you are being arrested. If the answer is no, go back to step 1. Repeat this until you are given leave.
  3. If the answer is yes, state clearly “I assert my right to remain silent and my right to have an attorney present. I will not speak with you without an attorney present. I do not waive any rights.” Go peacefully with the officer. Do not resist. Do not argue. Speak with nobody except your attorney. Say NOTHING. Don’t even make smalltalk.
  4. While in police custody, do not answer any questions, continue to assert your right to remain silent and ask for an attorney any time they speak to you other than basic functional questions (e.g. do you need the bathroom, are you hurt, do you need food).

Note that incident to the arrest, they may search your person, including a wallet, purse, etc. You may also be asked at the time of booking to further identify yourself by providing your home address. I would provide only that information sufficient to properly identify myself and decline any other questions, including arrest history, where you work, relatives names, etc. They may take your picture and fingerprint you. They may also swab you for DNA, per Maryland v. King.

The bottom line is, offer basic cooperation with commands relating to booking and your incarceration, but say nothing without a lawyer present. Keep reminding them of this until you talk to your lawyer. At that point, follow his or her advice.

Traffic stops are a special case. Generally, you must provide your license, registration and proof of insurance. In addition, you may be required to submit to a ‘breathalyzer’ to check for alcohol in your system. In some jurisdictions, you may refuse and request a blood test instead. In most jurisdictions, refusal to take such a test (either by breath or by blood) will result in serious legal penalties. Your best bet is to cooperate, answer questions directly, clearly and provide no extra information. Your goal should not be to try to talk the officer out of the citation, but to finish the encounter as quickly as possible. If the citation is in error, show up for court and fight it. Arguing with the officer isn’t going to help you in any way, and might just escalate to your arrest, the very thing you want to avoid.

The officer making the stop is generally entitled to take steps necessary to ensure his safety, and that includes looking into your vehicle for any obvious threats or evidence of a crime. Some jurisdictions allow the search of mobile telephone handsets incident to traffic stops. I ensure that my device is in a closed area in the car (e.g. glove box) and not visible nor on my person. If asked if I have a cell phone, I would say “I’m not carrying one”, which is a truthful answer. Barring arrest or some visible evidence of a crime, they generally cannot search your vehicle. In the case of a traffic accident, the traffic stop rules generally apply. Beyond that, say nothing until you speak with your insurance agent and your attorney.

In the case of a police investigation where you might be a witness, decline to provide any information but offer a written statement once you have had a chance to consult your attorney on the matter. In certain cases, refusal to cooperate with a police investigation can lead to criminal charges. Make it clear to the office that you want to cooperate, but you want to consult your attorney first. I would make an exception for something like witnessing a kidnapping, since time is of the essence, but otherwise, I would run anything I was going to say by an attorney.

Dealing with other government officials is generally easier. For the most part, you are summoned to speak to them and are able to consult your attorney in advance. The most common federal agent you would speak to would be the IRS. In such an encounter you have the right to have a representative with you when you speak to the agency. You want to make sure that the person you take with you has expertise in the area you are dealing with, e.g. a CPA and/or Tax Lawyer. For other agencies, different rules apply, but in most cases, you may have an attorney with you. State and local governments may have cause to enter your home for inspections.

Dealing with the government agent at your door:

  1. Be polite, courteous and calm. Never do anything to alarm or frighten them. Keep your hands clearly visible at all times.
  2. When they arrive at the door, ask them to hold their identification to the window or peep-hole on the door. Do not open the door until satisfied that the person is legitimately who they say they are. In most cases, it’s possible to phone the office and verify that the individual is who they say they are and that they are there on official business. If you can’t confirm, tell them so and ask them to leave. Use your best judgment with uniformed personnel.
  3. Once you are satisfied with the identity of the person, step outside and close and lock the door behind you. Do not allow them to enter the house at this time.
  4. Write down all of the information from the ID they show you including name, office or department, rank, badge number, and any other relevant information.
  5. Ask the person the reason for their visit. If they cite a regulation, ordinance or law, ask for a copy and read it. Be sure to write down exactly what they tell you for a reason and keep a copy of the regulation.
  6. Be very careful about answering any questions and remember that you may assert your right against self-incrimination (well, except for the IRS!) or contact an attorney if you feel necessary.
  7. Deciding to let them in your house is a judgment call, but remember there may be serious consequences for not doing so (e.g. refusing a building inspector may lead to a declaration that your home is unfit to live in). Your goal is to keep them from entering, if at all possible, and if not, ensure they confine themselves to the specific purpose for which they are there.

Generally speaking, if you rent, your landlord may give permission to enter in a specific set of circumstances (e.g. inspections required by local ordinance for rental properties). There is little, if anything that can be done to prevent this kind of entry.

One critical agency to avoid at all costs is the Department of Children and Family Services (or your state equivalent). They often have broad powers to make instant rulings and decisions, so ANY cooperation with them should be done only under the supervision of a lawyer. Should they demand entry to your home demand a warrant and turn them away if they do not have one. Then call an attorney immediately.

This probably seems a bit over the top, but given that there are so many laws, regulations and ordinances that are serious offenses (e.g. result in large fines and/or jail time), it is critical that you ensure your right against self-incrimination and your right to remain silent. And given the ruling in Salinas v. Texas, the only way to do this is to never talk to the government unless compelled to do so by law.

 

About Stephen Adams

The founder of this site, he has a Bachelor of Science degree in history from Elmhurst College. He is an IT Director that has worked for several major global companies. He has studied the Constitution and Founding Fathers extensively and his hobby is Constitutional Law. He blogs under the “Founder’s Blog”.