Police have limits to their powers. They cannot just search people for no reason. You have the good ole’ United States Constitution protecting you – specifically, The Fourth Amendment. It says:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
What is an unreasonable search?
It’s one that does NOT fall into one of these categories. If the police do not have a reason to interact with you, you have the right to turn and walk away. Even if they do have a reason to ask you questions, you have the right to refuse to answer questions.
One standard law enforcement can use to seize you or your property is Probable cause. It is “a set of facts and circumstances that would lead a reasonable and prudent person to believe when using all of their senses that a crime has been or is about to be committed by the suspected person.”
REASONABLE ARTICULABLE SUSPICION
Another is a reasonable articulable suspicion that criminal activity is afoot, which entails “circumstances that would lead a reasonable and prudent police officer to believe based upon his/her knowledge, training and experience that criminal activity is afoot.”
We have three tiers of interaction between citizens and police.
What is a seizure?
It’s a deprivation of you’re liberty. It’s when you are NOT free to leave during interactions with police. Police will not always tell you if you’re free to leave. ASK. You need to ask:
Am I free to leave?
The answer can be important. If they say “no” then stop answering questions! Anything you say after that will be held against you!
If they say “yes,” then leave! You don’t want to say something that could get you in trouble and you don’t want to hang around any longer than you have to.
We discuss this below, regarding Miranda rights.
Three types of interaction with police
This is when the police just come up to you and start asking you questions. Police can ask anyone anything. And you have the right to say absolutely nothing. If police start asking you questions during a traffic stop, your answers may be deemed consensual and it’s possible that something you say will make legal anything police find. For example, if police ask if you have drugs and you say yes – guess what, you just earned yourself a body search and those drugs will come into evidence. Just know you do not have to answer these questions.
In Indiana, the only questions you must answer are your identifying information like name and address. And you only have to answer those questions during an investigation of a crime or infraction. If you ask police why they’re detaining you and they won’t tell you, then refuse to answer questions. Ask if you’re free to leave. They have to tell you. If they don’t tell you, then leave. If you won’t let you leave, you have the answer to your question! They must justify why they’re asking questions. If police haven’t established that their questions are lawful, you do not have to answer.
Keep in mind that consent can be partial— you can tell police “You can’t look in the trunk.” You can also withdraw consent at any time. If a couple is stopped and one of the two consents to a search and the other refuses, the refusal trumps the consent. Consent cannot be granted remotely. A minor cannot give consent.
This uses reasonable articulable suspicion as the standard. The training and experience of a law enforcement professional equips them to recognize signs of criminal activity. If police believe that criminal activity is afoot, and can point to reasonable and concrete evidence of why, their detention of you will potentially be lawful. They can hold you. They can ask you questions. You should refuse to answer all questions except name and address.
CUSTODIAL ARREST, WHICH REQUIRES PROBABLE CAUSE
The Miranda warning (you have the right to remain silent, your statements can be used against you, and you have the right to an attorney paid at public expense) was popularized on television and in movies. The Miranda advisements do not need to be invoked until a person is in custody. Statements made before an arrest are admissible.
Here’s something to keep in mind. Miranda is only required during custodial interrogations. Custody is when a reasonable person would not believe they were free to leave. An interrogation is asking specific questions about a crime. Noteworthy is that, if there’s still an ongoing emergency that police need to resolve, the questions may not be considered an “interrogation” but instead questions used to resolve the emergency. If police reasonably believe that the questions will result in questions that show the person being questioned in a guilty light, that’s an interrogation.
So let’s take a quick look. Police respond to a report of shots fired. They arrive on scene to find someone bleeding, laying on the street. An officer asks someone nearby
“What happened? Did you see the shooter?”
The officer should not reasonably expect that potential witness to make a statement about that person’s own criminal actions. So if that person says “I shot them because they were calling me names,” then this statement is absolutely coming into trial. It was not custodial interrogation.
On the flip side, this witness instead says “I saw Johnny shoot that guy.” The cop knows Johnny from the neighborhood. The cop goes to his house, finds Johnny and sees blood on Johnny’s hands and sees a gun nearby. Johnny is arrested and brought to the station for questioning. Johnny is in handcuffs and was told he’s under arrest. Johnny is in custody. If police ask him questions about what happened, his answers will not be admissible to be used against him unless Miranda is made prior to those questions.
Also, keep in mind that Miranda only pertains to statements. Lack of proper Miranda advisements does NOT result in an automatic dismissal. It just results in an automatic bar from using your statements against you.