Talking to the Police When You’re Not in Custody

Encounters with police officers on the street often result in requests for information or identification. Learn about your rights when you're not in custody and the police ask something of you.

Stopping and Questioning People on the Street

Even if an officer has no reason to suspect that you have done anything wrong, the officer can approach you to ask questions and ask to search you or objects in your possession (such as a purse or briefcase). As long as the officer doesn’t suggest that you are legally compelled to talk or agree to a search, the officer has done nothing wrong (U.S. v. Drayton, U.S. Sup. Ct. 2002). At the same time, you are generally not required to answer a police officer’s questions or allow a police officer to search your person or your belongings.

Can I Walk Away?

Unless a police officer has “probable cause” to make an arrest or a “reasonable suspicion” to conduct a “stop and frisk,” a person has the legal right to walk away from a police officer. However, at the time of the encounter, there is no real way to know what information the officer is relying on. In fact, an officer may have information that provides a valid legal basis to make an arrest or to conduct a stop and frisk, even if the person stopped is actually innocent of any wrongdoing. In that situation, an officer may forcibly detain an innocent person 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 should first 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 you are not free to leave, you should remain at the scene and leave the issue of whether the officer had the necessary legal basis to detain you for the courts to determine at a later time.

Must the Officer Read Me My Miranda Rights?

A “Miranda warning” is required only if a suspect is in custody and the police intend to interrogate the suspect. In other words, both “custody” and “interrogation” have to occur for Miranda rights to kick in. One upshot of this require­ment is that a statement by a person who is not in custody, or a statement made voluntarily rather than in response to police interrogation, is admissible in evidence at trial even if no Miranda warning was given.

Example: Officer Dave Bouncer is investigating a barroom brawl. The bartender indicates that a patron named Bob Sawyer might be able to identify the instigator of the brawl. When Officer Bouncer interviews Bob, Bob makes statements implicating himself in the brawl. Officer Bouncer did not read Bob his Miranda rights. Nevertheless, if Bob is charged with a crime concerning the brawl, Bob’s statements to Officer Bouncer will be admissible as evidence. At the time Officer Bouncer spoke to Bob, Bob was not in custody. Thus, the evidence may be admitted even though Officer Bouncer never gave Bob any Miranda warnings.

Talking to the Police Might Help You

Police officers may be as interested in clearing the innocent as in convicting the guilty. People can often clear their names as well as help the police find the real perpetrators by answering a few straightforward questions. For example, assume that Wally, a possible suspect, can demonstrate that “I was at dinner with Andre” at the moment a crime was committed. Wally both removes himself as a suspect and enables the police to concentrate their efforts elsewhere.

And legal rights aside, the truth on the street is that people often can make life easier for themselves by cooperating with police officers—as long as they don’t have a good reason not to. “Contempt of cop” has resulted in the arrest and even physical injury of more than one innocent person. When innocent people who are pulled over or questioned by police officers stand on their rights too forcefully, events can sometimes get out of control rather quickly.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

Demanding Identification from People on the Street

Many states have “stop and identify” laws. Under these laws, if a police officer reasonably suspects that someone has engaged in criminal activity, the officer can detain that person and ask for identification. A person who refuses to provide identification commits the crime of resisting an officer’s lawful order (Hiibel v. Nevada, U.S. Sup. Ct. 2004). Without that reasonable suspicion, however, a demand for identification may be illegal.

Drivers who are asked to produce an ID may need to comply as well. Laws in many states require drivers who are stopped for speeding and similar infractions to provide identification when an officer requests it.

Example: Jones is standing outside his parked truck. Noticing that Jones fits the description of a man who took clothing from a nearby store about a half hour earlier, Officer Juarez asks Jones for identification and questions Jones about where he’s been for the last half hour. Jones refuses to say anything to the officer. Because Officer Juarez reasonably suspected that Jones might have stolen the clothing, Jones’s refusal to provide identification would violate a “stop and identify” law. However, Jones has a constitutional right under the Fifth Amendment to remain silent, so he cannot be punished for refusing to answer the officer’s other questions.

Demanding Identification of Someone Who Is Loitering

Laws in many states 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 someone 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.

Example: Officer Marcia Yu is dis­patched to Upscale Meadows after a resident calls the police to complain that a woman has been walking back and forth along the streets for over an hour, with no apparent purpose. From a distance, the officer observes the woman for a few minutes, and sees her stopping occasionally to peer into residents’ back yards. Believing that she may be planning a burglary, Officer Yu confronts the woman and asks her to provide identification and explain what she is doing in the neighborhood. The woman refuses to respond. Under the loitering laws of many states, Officer Yu can arrest the woman for loitering. The officer had a reasonable basis to believe that the woman posed a danger to the community. Because she didn’t identify herself or explain why she was in the neighborhood, the officer could arrest her. Had the woman responded to Officer Yu, the officer might not arrest her for loitering. However, she might be subject to arrest for a different offense, such as trespass (unlawful entry on someone else’s property).

Many people argue that police officers use loitering laws to clear neighborhoods of “undesirables.” Some courts have held loitering laws to be unconstitutional on the grounds that they are enforced discriminatorily against poor people and members of ethnic minority groups, and that they unduly restrict people’s rights to travel on public streets. The safest place to challenge the validity of a loitering law is in the courts, not on the streets to a police officer’s face.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.