Should You Speak With Law Enforcement?

There are many different situations when the public may come into contact with law enforcement. Each interaction has its own set of guidelines and advice. This month, I address law enforcement interactions in a criminal context.
Deciding whether or not to talk to law enforcement is a difficult decision. As a criminal defense attorney, there are several rules that guide advice.
The first is that if you are a suspect in a criminal investigation, you should not speak to law enforcement without an attorney present.
Individuals who violate this rule do so for several reasons: they believe this is “just a misunderstanding” and believe they can talk their way out of a situation. As an experienced criminal defense attorney, I know this is almost always false. The second reason my clients gave for speaking to law enforcement was that they believe if they did not talk, law enforcement would conclude they were guilty and they would be arrested. The truth is that if law enforcement has sufficient information to arrest you, that decision would have been made before any discussion began, and you will be arrested whether or not you speak to them. Silence cannot be used against you if law enforcement decides to arrest you. On the other hand, as you are told in Miranda warnings (which outline your constitutional rights as a criminal suspect), “. . . anything you say can and will be used against you .” Nowhere in the warnings does the language indicate what you say will ever be used FOR you.
The next reason given for speaking to law enforcement, was that people did not know they were suspects when they began speaking with them, and thought the police had to read them their Miranda rights before speaking to them. Miranda rights are only required when you are in custody. If the police are questioning you voluntarily at the station, your home, or a Starbucks, they have no obligation to read you your Miranda rights.
Outside of a criminal investigation where you are a suspect, whether to speak to law enforcement depends on the situation.
There are several reasons officers might want to speak to you where they do not have information you committed a crime. The first reason is determining your identity and reason to be in a particular place. This is called a Terry Stop and is permitted by the U.S. Supreme Court. To lawfully conduct a Terry Stop, the officer must have a reason, separate from an individual’s race religion, country of origin, or gender. The officer is not required to tell you that reason. They may merely ask for proof of identity and/or a brief description of what you are doing in the area. The officer can also conduct a pat-down of you if they believe you present an immediate risk of harm to them. The officer may only detain you for the period of time that is necessary to confirm your identity and your reason for being in the area, unless they develop probable cause that you have committed a criminal act. The best way to handle a Terry Stop is to be polite and provide the requested information. If you believe the officer acted inappropriately, you should contact an attorney afterwards to make a complaint. During a Terry Stop, you are not required to provide the officer access to your cell phone, or other information. That does not stop an officer from asking, but if asked, you should politely decline.
The next type of interaction is a criminal investigation in which the police believe you may have information concerning a crime. This almost certainly will happen if you call law enforcement to report a crime. You should expect to be questioned, and law enforcement will expect you to assist. This is not an unreasonable interaction with law enforcement. You are not obligated to speak with law enforcement. However, if you don’t, you may inhibit their investigation, and they may determine there is not sufficient information to warrant further investigation.
The next type of criminal witness investigation is where law enforcement believes you may have material information about a crime they are investigating. This is a situation where you would certainly benefit from advice of counsel prior to talking to law enforcement. Even if you had no part in the crime, your knowledge of it may implicate your criminal culpability. As such, you want to get protections that your cooperation will not later be used against you. Also, know that officers often have a narrative in mind when they talk to witnesses, and in my experience, can push back against witnesses they believe are not telling them the whole truth as to what happened, or push back against witnesses who have a different version of events than they have. In an extreme example, I dealt with situations where witnesses were charged with making false statements to officers in describing incidents they witnessed. Having an attorney assist you reduces the chance that you will be compromised when speaking to law enforcement.
There is one situation where one should always choose to consult with counsel: when you are subpoenaed before a Grand Jury or a court. In these cases, you need an attorney to explain what is expected of you as a witness, potential liability for failing to answer questions and/or appear, and to assert your constitutional rights as needed.
In the coming months I will address other situations in which you may find yourself when dealing with law enforcement, such as border crossings, interacting with TSA, questions from immigration authorities, or requests to provide intelligence about your community. Also, I will provide tips on how to address law enforcement officers so that you can effectively make your wishes known when asserting your rights, as well as address how to find an attorney.
Catherine McDonald is the Managing Attorney at the Constitutional Law Center for Muslims in America (CLCMA), and has over 20+ years of experience as a criminal defense attorney. CLCMA is a nonprofit law firm funded through a generous grant from Muslim Legal Fund of America (MLFA). Learn more at clcma.org and mlfa.org.