By the Fifth Amendment to the U.S. Constitution, no person “shall be compelled to be a witness against himself …” To adhere to this mandate, police officers are required to read a suspect his Miranda rights at the beginning of a custodial interrogation. Failure to do so can result in the suppression of any and all incriminating statements made by the suspect during the interrogation. If, after receiving the Miranda rights, a suspect agrees to talk, the police may commence the interrogation, and any statements a suspect makes can be used against him in court.
However, the suspect’s Fifth Amendment rights do not end there. To the contrary, the suspect is always armed with the right to voluntarily terminate the interrogation, and he may do this in the following two ways: 1) by invoking the right to remain silent; or 2) by invoking the right to an attorney. It is important that the interrogating officers understand the implications of each act.
Right to Remain Silent --
If the suspect indicates that he wishes to remain silent at any time prior to or during the interrogation, the police must discontinue all questioning related to the particular crime the person is accused of committing. Though the police may eventually reinitiate questioning, they must wait a significant amount of time before doing so, and they may not “badger” the suspect into talking.
Right to Counsel --
If, prior to or during the interrogation, the suspect invokes his right to counsel, all questioning of any kind must cease. Here, unlike with the right to remain silent, the police must discontinue questioning of any kind, even if it is not related to the crime the suspect is accused of committing. Furthermore, the police may not reinitiate questioning until the suspect is provided with an attorney, or until the suspect reinitiates the questioning himself.
For more information concerning this topic, see the following cases: Michigan v. Mosely, 423 U.S. 96 (1975); Edwards v. Arizona, 451 U.S. 477 (1981).
IMPORTANT: These tips are for informational and illustrative purposes only. State laws may be more restrictive of investigative procedures, and federal circuit courts sometimes differ in their interpretations of current federal law. Be sure to ask an attorney in your jurisdiction about your specific legal concerns.
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Quinlan’s Investigative Stops Quiz:
The following is an excerpt from the Investigative Stops Quiz, the full version of which appears in the November 2004 edition of Quinlan’s Investigative Stops Bulletin. For information on how to subscribe to this and other Quinlan bulletins, please go to www.quinlan.com and follow the law enforcement link.
A. During a traffic stop, does an officer always need probable cause to search a person’s car?
No. Normally, to search a person’s car, an officer must have probable cause to believe contraband or evidence of a crime is located inside. Though the “Automobile Exception” negates the need for obtaining a warrant before searching a car, that exception does not negate the probable cause requirement. The “Consent” exception, on the other hand, not only negates the necessity of a warrant, but it also negates the probable cause requirement. By this exception, if, while lawfully questioning a vehicle’s occupant/s, the officer obtains lawful consent to search the car, the officer may search the vehicle without probable cause.
B. What constitutes valid consent?
The consent exception applies only if a person with lawfully authority to consent to a search provides voluntary and intelligent consent. To decide whether a person’s consent is voluntary and intelligent, courts look at all of the circumstances surrounding the consent. This is an objective test, and no one factor is determinative.
C. Who has the authority to give consent to a search?
An officer may rely on the consent of any person with an apparent equal right to use or occupy the property. Courts will make their determinations based on whether the police reasonably believed the person who consented to the search had authority to consent. Consequently, some searches will be valid even if the person who gives consent does not have actual authority to consent.
The information contained in this Police Center Update was submitted by Quinlan Publishing Group in Boston. For information on how to subscribe to Quinlan’s law enforcement bulletins, please click on www.quinlan.com and follow the law enforcement links.
